7–15–10 Thursday Vol. 75 No. 135 July 15, 2010

Pages 41073–41364

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Contents Federal Register Vol. 75, No. 135

Thursday, July 15, 2010

Agriculture Department PROPOSED RULES See Animal and Plant Health Inspection Service Energy Conservation Programs: See Food and Nutrition Service Commercial Refrigeration Equipment, 41102–41103 Energy Conservation Standards for Furnace Fans, 41102 Animal and Plant Health Inspection Service Walk-in Coolers and Walk-in Freezers, 41103–41104 RULES NOTICES South American Cactus Moth Regulations; Quarantined Agency Information Collection Activities; Proposals, Areas, 41073–41074 Submissions, and Approvals, 41165–41166 NOTICES Reestablishment of the Electricity Advisory Committee, Agency Information Collection Activities; Proposals, 41166 Submissions, and Approvals: Solicitation of Nominations: Interstate Movement of Fruit from Hawaii, 41139 Biomass Research and Development Technical Advisory Committee, 41166–41167 Centers for Disease Control and Prevention Energy Efficiency and Renewable Energy Office NOTICES Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 41205–41207 Interim Grant of Waiver, Energy Conservation Program for Consumer Products: Civil Rights Commission Whirlpool Corp., Department of Energy Residential NOTICES Dishwasher Test Procedure, 41167–41171 Meetings: Environmental Protection Agency Mississippi Advisory Committee, 41140–41141 RULES Approval and Promulgation of Implementation Plans: Coast Guard Texas; Revisions to the New Source Review State PROPOSED RULES Implementation Plan; Flexible Permits, 41312–41335 Special Local Regulations: PROPOSED RULES Sabine River; Orange; TX, 41119–41121 Hazardous and Solid Waste Management Systems: Identification and Listing of Special Wastes; Disposal of Commerce Department Coal Combustion Residuals from Electric Utilities, See Industry and Security Bureau 41121–41123 See International Trade Administration NOTICES See National Oceanic and Atmospheric Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Agency Information Collection Activities; Proposals, Mobile Air Conditioner Retrofitting Program, 41171– Submissions, and Approvals, 41141 41172 NESHAP for Stationary Combustion Turbines, 41172– Defense Acquisition Regulations System 41173 NOTICES Calls for Information: Agency Information Collection Activities; Proposals, Greenhouse Gas Emissions Associated with Bioenergy Submissions, and Approvals: and Other Biogenic Sources, 41173–41177 Defense Federal Acquisition Regulation Supplement; Part Protection of Stratospheric Ozone: 251, Contractor Use of Government Supply Sources, Request for Methyl Bromide Critical Use Exemption 41161–41162 Applications for 2013, 41177–41179 Defense Department Executive Office of the President See Defense Acquisition Regulations System See Trade Representative, Office of United States See Navy Department Federal Aviation Administration Delaware River Basin Commission RULES PROPOSED RULES Amendment of Class D and E Airspace: Amendments to the Water Quality Regulations: Everett, WA, 41074–41075 Water Code and Comprehensive Plan to Update Water Amendment of Class E Airspace: Quality Criteria for Toxic Pollutants in the Delaware Bozeman, MT, 41075–41076 Estuary, 41106–41119 Establishment of Class E Airspace: Monterey, CA, 41076–41077 Education Department Revision of Class E Airspace: NOTICES Monterey, CA, 41077–41078 Agency Information Collection Activities; Proposals, PROPOSED RULES Submissions, and Approvals, 41164–41165 Airworthiness Directives: Robinson Helicopter Company (Robinson) Model R22, Energy Department R22 Alpha, R22 Beta, and R22 Mariner Helicopters, See Energy Efficiency and Renewable Energy Office and Model R44, and R44 II Helicopters, 41104–41106

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Federal Communications Commission General Services Administration RULES RULES FM Table of Allotments: General Services Administration Acquisition Regulations: Kingsland, Texas, 41092–41093 Rewrite of GSAR Part 516, Types of Contracts, 41093– Maupin, OR, 41093 41097 PROPOSED RULES Implementation of Section 224 of the Act: Health and Human Services Department National Broadband Plan for Our Future, 41338–41363 See Centers for Disease Control and Prevention Radio Broadcasting Services: See Food and Drug Administration Gearhart, OR, 41123 See National Institutes of Health

Federal Election Commission Homeland Security Department NOTICES See Coast Guard Meetings; Sunshine Act, 41179–41180 See U.S. Citizenship and Immigration Services See U.S. Immigration and Customs Enforcement Federal Highway Administration RULES NOTICES Homeland Security Acquisition Regulations: Final Federal Agency Actions on Proposed Highway in Lead System Integrators [HSAR Case 2009–003], 41097– California, 41277–41278 41101 NOTICES Final Federal Agency Actions on Proposed Highway in Agency Information Collection Activities; Proposals, Idaho, 41278–41279 Submissions, and Approvals: Infrastructure Protection Data Call Survey; Correction, Federal Housing Finance Agency 41213 NOTICES Orders: Housing and Urban Development Department Revisions to Enterprise Public Use Database, 41180– RULES 41201 Conforming Changes to Applicant Submission Requirements: Federal Railroad Administration Implementing Federal Financial Report and Central RULES Contractor Registration Requirements, 41087–41091 Bridge Safety Standards, 41282–41309 NOTICES Federal Housing Administration Risk Management Federal Reserve System Initiatives: NOTICES Reduction of Seller Concessions and New Loan-to-Value Formations of, Acquisitions by, and Mergers of Bank and Credit Score Requirements, 41217–41225 Holding Companies, 41201 Neighborhood Stabilization Programs: Federal Housing Administration First Look Sales Method Federal Trade Commission for Grantees, Nonprofit Organizations, 41225–41229 NOTICES Granting of Request for Early Termination of the Waiting Industry and Security Bureau Period Under the Premerger Notification Rules, 41201– RULES 41205 Revisions to Commerce Control List to Update and Clarify Crime Control License Requirements, 41078–41084 NOTICES Fish and Wildlife Service Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 41141–41142 Endangered and Threatened Wildlife and Plants: Agency Information Collection Activities; Proposals, Permit, San Bernardino County, CA, 41229–41231 Submissions, and Approvals: Environmental Impact Statements; Availability, etc.: Report of Requests for Restrictive Trade Practice or Deer Flat National Wildlife Refuge, 41232–41233 Boycott, 41142 Issuance of Permits, 41233–41234 Permit Applications, 41235–41236 Interior Department Stanford University Habitat Conservation Plan: See Fish and Wildlife Service Extension of Comment Period, 41157 See Land Management Bureau See National Park Service Food and Drug Administration NOTICES International Trade Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Preliminary Results and Preliminary Rescission, in Part, of Food Labeling Regulations, 41207–41210 Antidumping Duty Administrative Review: Tobacco Health Document Submission, 41210–41211 Silicon Metal from the People’s Republic of China, 41143–41148 Food and Nutrition Service Preliminary Results of the 2008–2009 Administrative NOTICES Review of the Antidumping Duty Order: Agency Information Collection Activities; Proposals, Tapered Roller Bearings and Parts Thereof, Finished or Submissions, and Approvals: Unfinished, from the People’s Republic of China, Child Nutrition Database, 41140 41148–41157

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U.S. Cleantech Trade & Investment Mission, 41157–41161 Pending Removal of Listed Property, 41235

International Trade Commission National Science Foundation NOTICES NOTICES Investigations: Meetings; Sunshine Act, 41241 Certain Adjustable Keyboard Support Systems and Components Thereof, 41238 Meetings; Sunshine Act, 41239 Navy Department NOTICES Justice Department Environmental Impact Statements; Availability, etc.: NOTICES Navy Atlantic Fleet Training and Testing, 41163–41164 Lodging of Consent Decree Pursuant to the Resource Navy Hawaii–Southern California Training and Testing, Conservation and Recovery Act, 41239 41162–41163

Land Management Bureau Nuclear Regulatory Commission NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Draft Regulatory Guide; Issuance, Availability, 41241–41242 Proposed Abengoa Solar Inc., Lathrop Wells Solar Environmental Impact Statements; Availability, etc.: Facility, Amargosa Valley, Nye County, NV, 41231– Proposed International Isotopes Uranium Processing 41232 Facility, 41242–41244 Proposed Withdrawal Extension and Opportunity for Public Meeting; Alaska, 41236–41237 Office of United States Trade Representative Public Land Order No. 7745: See Trade Representative, Office of United States Partial Revocation of Power Site Reserve Nos. 510 and No. 515; Montana, 41237 Public Land Order No. 7746; Withdrawal of Public Lands: Pension Benefit Guaranty Corporation South Fork of the American River; CA, 41237–41238 RULES Benefits Payable in Terminated Single-Employer Plans: Legal Services Corporation Interest Assumptions for Valuing and Paying Benefits, NOTICES 41091–41092 Meetings; Sunshine Act, 41239–41240 Personnel Management Office Maritime Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 41244–41245 Submissions, and Approvals, 41276

National Aeronautics and Space Administration Railroad Retirement Board NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Aeronautics Committee, 41240–41241 Submissions, and Approvals, 41245 Audit, Finance and Analysis Committee, 41240 Technology and Innovation Committee, 41240 Securities and Exchange Commission NOTICES National Institutes of Health Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 41247 Establishment of Interagency Pain Research Coordinating Self-Regulatory Organizations; Proposed Rule Changes: Committee, 41211–41212 Financial Industry Regulatory Authority, Inc., 41254– Meetings: 41258, 41262–41264 Center for Scientific Review, 41212–41213 International Securities Exchange, LLC, 41247–41250, National Institute of Allergy and Infectious Diseases, 41264 41212 NASDAQ OMX PHLX, Inc., 41250–41252 NASDAQ Stock Market LLC, 41258–41262 National Oceanic and Atmospheric Administration NYSE Amex LLC, 41264–41273 PROPOSED RULES NYSE Arca, Inc., 41252–41254 Fisheries of the Exclusive Economic Zone Off Alaska: Suspension of Trading Orders: Bering Sea Subarea, 41123–41138 Fineline Holdings, Inc., 41273 NOTICES Fisheries in the Western Pacific: American Samoa Pelagic Longline Limited Entry Sentencing Commission, United States Program, 41142–41143 See United States Sentencing Commission Stanford University Habitat Conservation Plan: Extension of Comment Period, 41157 Small Business Administration NOTICES National Park Service Disaster Declarations: NOTICES Minnesota, 41245–41246 National Register of Historic Places: Virginia, 41247 Pending Nominations and Related Actions, 41234–41235 West Virginia, 41245–41247

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Social Security Administration U.S. Citizenship and Immigration Services RULES NOTICES Amendments to Regulations: Agency Information Collection Activities; Proposals, Major Life-Changing Events Affecting Income-Related Submissions, and Approvals, 41215–41217 Monthly Adjustment Amounts to Medicare Part B Premiums, 41084–41087 U.S. Immigration and Customs Enforcement NOTICES Agency Information Collection Activities; Proposals, State Department Submissions, and Approvals, 41213–41215 NOTICES Culturally Significant Objects Imported for Exhibition United States Sentencing Commission Determinations: NOTICES The Art of Ancient Greek Theater, 41274 Sentencing Guidelines for United States Courts, 41279 The World of Khubilai Khan: Chinese Art in the Yuan Dynasty, 41274 Veterans Affairs Department RULES Surface Transportation Board Stressor Determinations for Posttraumatic Stress Disorder; NOTICES Correction, 41092 Continuance in Control Exemptions: US Rail Partners, Ltd., Blackwell Northern Gateway Railroad Co., Eastern Berks Gateway Railroad Co., Separate Parts In This Issue 41276–41277 Discontinuance of Service and Operations Exemptions: Part II Central of Georgia Railroad Co., Great Walton Railroad Transportation Department, Federal Railroad Co., Newton County, GA, 41277 Administration, 41282–41309

Part III Trade Representative, Office of United States Environmental Protection Agency, 41312–41335 NOTICES Generalized System of Preferences (GSP): Part IV Initiation of the 2010 Annual GSP Product Review and Federal Communications Commission, 41338–41363 Deadlines for Filing Petitions, 41274–41276 Meetings: Industry Trade Advisory Committee on Small and Reader Aids Minority Business (ITAC–11), 41276 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, Transportation Department and notice of recently enacted public laws. See Federal Aviation Administration To subscribe to the Federal Register Table of Contents See Federal Highway Administration LISTSERV electronic mailing list, go to http:// See Federal Railroad Administration listserv.access.gpo.gov and select Online mailing list See Maritime Administration archives, FEDREGTOC-L, Join or leave the list (or change See Surface Transportation Board 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.

7 CFR 301...... 41073 10 CFR Proposed Rules: 430...... 41102 431 (2 documents) ...... 41102, 41103 14 CFR 71 (4 documents) ...... 41074, 41075, 41076, 41077 Proposed Rules: 39...... 41104 15 CFR 742...... 41078 774...... 41078 18 CFR Proposed Rules: 410...... 41106 20 CFR 418...... 41084 24 CFR 5...... 41087 84...... 41087 85...... 41087 29 CFR 4022...... 41091 33 CFR Proposed Rules: 100...... 41119 38 CFR 3...... 41092 40 CFR 52...... 41312 Proposed Rules: 257...... 41121 261...... 41121 264...... 41121 265...... 41121 268...... 41121 271...... 41121 302...... 41121 47 CFR 73 (2 documents) ...... 41092, 41093 Proposed Rules: 1...... 41338 73...... 41123 48 CFR 516...... 41093 552...... 41093 3002...... 41097 3007...... 41097 3009...... 41097 3016...... 41097 3034...... 41097 3035...... 41097 3052...... 41097 49 CFR 213...... 41282 237...... 41282 50 CFR Proposed Rules: 679...... 41123

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Rules and Regulations Federal Register Vol. 75, No. 135

Thursday, July 15, 2010

This section of the FEDERAL REGISTER Reading Room: You may read any The regulations in § 301.55–3(a) contains regulatory documents having general comments that we receive on this provide that the Administrator of APHIS applicability and legal effect, most of which docket in our reading room. The reading will list as a quarantined area each are keyed to and codified in the Code of room is located in room 1141 of the State, or each portion of a State, where Federal Regulations, which is published under USDA South Building, 14th Street and South American cactus moth has been 50 titles pursuant to 44 U.S.C. 1510. Independence Avenue SW., found by an inspector, where the The Code of Federal Regulations is sold by Washington, DC. Normal reading room Administrator has reason to believe that the Superintendent of Documents. Prices of hours are 8 a.m. to 4:30 p.m., Monday South American cactus moth is present, new books are listed in the first FEDERAL through Friday, except holidays. To be or where the Administrator considers REGISTER issue of each week. sure someone is there to help you, regulation necessary because of its please call (202) 690–2817 before inseparability for quarantine coming. enforcement purposes from localities DEPARTMENT OF AGRICULTURE Other Information: Additional where South American cactus moth has information about APHIS and its been found. Animal and Plant Health Inspection In addition, the regulations in Service programs is available on the Internet at (http://www.aphis.usda.gov). § 301.55–3(b) provide that the Administrator or inspector may 7 CFR Part 301 FOR FURTHER INFORMATION CONTACT: Dr. temporarily designate any Robyn Rose, South American Cactus nonquarantined area in a State as a [Docket No. APHIS–2010–0037] Moth National Program Manager, quarantined area in accordance with the Emergency and Domestic Programs, South American Cactus Moth criteria in § 301.55–3(a) and will PPQ, APHIS, 4700 River Road Unit 26, Regulations; Quarantined Areas provide written notice to the owner, Riverdale, MD 20737–1236; (301) 734– person in possession, or person AGENCY: Animal and Plant Health 7121. responsible for the management of the Inspection Service, USDA. SUPPLEMENTARY INFORMATION: land to be designated. As soon as ACTION: Interim rule and request for practicable, the area will be added to the Background comments. list of quarantined areas in § 301.55–3(c) The South American cactus moth or the designation will be terminated by SUMMARY: We are amending the South (Cactoblastis cactorum) is a grayish- the Administrator or by an inspector. American cactus moth regulations by brown moth with a wingspan of 22 to In accordance with these criteria and adding the State of Louisiana to the list 35 millimeters (approximately 0.86 to the recent South American cactus moth of areas quarantined because of South 1.4 inches) that is indigenous to findings, we are amending § 301.55–3(c) American cactus moth. As a result of Argentina, southern Brazil, Paraguay, to add the State of Louisiana to the list this action, the interstate movement of and Uruguay. It is a serious quarantine of quarantined areas. regulated articles from Louisiana is pest of Opuntia spp., and an occasional Emergency Action restricted. This action is necessary to pest of Nopalea spp., Cylindropuntia This rulemaking is necessary on an prevent the artificial spread of the South spp., and Consolea spp., four closely American cactus moth from infested emergency basis to help prevent the related genera of the family Cactaceae. spread of South American cactus moth areas in the State of Louisiana into After an incubation period following noninfested areas of the United States. to noninfested areas of the United mating, the female South American States. Under these circumstances, the DATES: This interim rule is effective July cactus moth deposits an egg stick Administrator has determined that prior 15, 2010. We will consider all resembling a cactus spine on the host notice and opportunity for public comments that we receive on or before plant. The egg stick, which consists of comment are contrary to the public September 13, 2010. 70 to 90 eggs, hatches in 25 to 30 days interest and that there is good cause ADDRESSES: You may submit comments and the larvae bore into the cactus pad under 5 U.S.C. 553 for making this rule by either of the following methods: to feed, eventually hollowing it out and effective less than 30 days after ∑ Federal eRulemaking Portal: Go to killing the plant. Within a short period publication in the Federal Register. (http://www.regulations.gov/ of time, the South American cactus We will consider comments we fdmspublic/component/main?main= moth can destroy whole stands of receive during the comment period for DocketDetial&d=APHIS-2010-0037) to cactus. this interim rule (see DATES above). submit or view comments and to view The South American cactus After the comment period closes, we supporting and related materials regulations in 7 CFR 301.55 through will publish another document in the available electronically. 301.55–9 (referred to below as the Federal Register. The document will ∑ Postal Mail/Commercial Delivery: regulations) restrict the interstate include a discussion of any comments Please send one copy of your comment movement of regulated articles from we receive and any amendments we are to Docket No. APHIS–2010–0037, quarantined areas to prevent the making to the rule. Regulatory Analysis and Development, artificial spread of South American PPD, APHIS, Station 3A–03.8, 4700 cactus moth to noninfested areas of the Executive Order 12866 and Regulatory River Road Unit 118, Riverdale, MD United States. The States of Alabama, Flexibility Act 20737–1238. Please state that your Florida, Georgia, Mississippi, and South This proposed rule is subject to comment refers to Docket No. APHIS– Carolina have already been designated Executive Order 12866. However, for 2010–0037. as quarantined areas. this action, the Office of Management

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and Budget has waived its review under inconsistent with this rule; (2) has no hours established by a Notice to Airmen Executive Order 12866. retroactive effect; and (3) does not (NOTAM) for the Class E surface area In accordance with the Regulatory require administrative proceedings airspace. This action enhances the Flexibility Act, we have analyzed the before parties may file suit in court safety and management of Instrument potential economic effects of this action challenging this rule. Flight Rules (IFR) operations at on small entities. Snohomish County Airport (Paine Paperwork Reduction Act South American cactus moth is a pest Field). that attacks primarily prickly pear cacti This interim rule contains no new DATES: Effective date: 0901 UTC, in arid and coastal areas. In the information collection or recordkeeping September 23, 2010. The Director of the continental United States, the South requirements under the Paperwork Federal Register approves this American cactus moth has been found Reduction Act of 1995 (44 U.S.C. 3501 incorporation by reference action under in Florida, Georgia, South Carolina, et seq.). 1 CFR Part 51, subject to the annual Alabama, and Mississippi. It has also revision of FAA Order 7400.9 and been found in Hawaii, Puerto Rico, and List of Subjects in 7 CFR Part 301 publication of conforming amendments. the U.S. Virgin Islands, as well as more Agricultural commodities, Plant than 30 foreign countries. The pest diseases and pests, Quarantine, FOR FURTHER INFORMATION CONTACT: attacks various cactus genera. The Reporting and recordkeeping Eldon Taylor, Federal Aviation species that are most threatened in the requirements, Transportation. Administration, Operations Support Group, Western Service Center, 1601 United States belong to the genus ■ Accordingly, we are amending 7 CFR Lind Avenue, SW., Renton, WA, 98057; Opuntia, also known as the prickly pear part 301 as follows: cactus. telephone (425) 203–4537. Opuntia cactus is valued as an PART 301—DOMESTIC QUARANTINE SUPPLEMENTARY INFORMATION: ornamental plant material for NOTICES History landscaping projects and as a food crop. Other uses are as emergency forage for ■ 1. The authority citation for part 301 On February 4, 2010, the FAA cattle during periods of drought and as continues to read as follows: published in the Federal Register a wildlife feed for game animals. This rule Authority: 7 U.S.C. 7701–7772 and 7781– notice of proposed rulemaking to amend amends the regulations by adding the 7786; 7 CFR 2.22, 2.80, and 371.3. Class D and E airspace at Everett, WA State of Louisiana to the list of Section 301.75–15 issued under Sec. (75 FR 5702). Interested parties were quarantined areas. The regulations 204, Title II, Public Law 106–113, 113 invited to participate in this rulemaking restrict the interstate movement of host Stat. 1501A–293; sections 301.75–15 effort by submitting written comments material from quarantined areas to non- and 301.75–16 issued under Sec. 203, on the proposal to the FAA. No quarantined areas to prevent the Title II, Public Law 106–224, 114 Stat. comments were received. artificial spread of this pest. However, 400 (7 U.S.C. 1421 note). Subsequent to publication, the FAA there are currently no nurseries in found that the operating hours for the Louisiana known to propagate Opuntia § 301.55–3 [Amended] Class D airspace had not changed and, or other host genera of C. cactorum for ■ 2. In § 301.55–3, paragraph (c) is therefore, will continue the operating retail sale or interstate shipment. amended by adding the word hours to be effective during the specific Therefore, there are no small-entity ‘‘Louisiana,’’ after the word ‘‘Georgia,’’. dates and times established in advance nurseries in Louisiana that will be Done in Washington, DC, this 9th day by NOTAM. affected by this interim rule. of July 2010. With the exception of editorial Inclusion of Louisiana in the C. changes, and the changes described cactorum quarantine is important in Kevin Shea above, this rule is the same as that preventing the further expansion of this Acting Administrator, Animal and Plant proposed in the NPRM. pest to Texas and other Western States Health Inspection Service. Class D and Class E airspace and to Mexico, where Opuntia species [FR Doc. 2010–17276 Filed 7–14–10; 10:29 am] designations are published in paragraph are environmentally and economically BILLING CODE: 3410–34–S 5000 and 6002, respectively, of FAA significant. Order 7400.9T signed August 27, 2009, Under these circumstances, the and effective September 15, 2009, which Administrator of the Animal and Plant DEPARTMENT OF TRANSPORTATION is incorporated by reference in 14 CFR Health Inspection Service has part 71.1. The Class D and Class E determined that this action will not Federal Aviation Administration airspace designations listed in this have a significant economic impact on document will be published a substantial number of small entities. 14 CFR Part 71 subsequently in that Order. Executive Order 12372 [Docket No. FAA–2009–1105; Airspace The Rule Docket No. 09–ANM–23] This program/activity is listed in the This action amends Title 14 Code of Catalog of Federal Domestic Assistance Amendment of Class D and E Federal Regulations (14 CFR) Part 71 by under No. 10.025 and is subject to Airspace; Everett, WA amending Class D airspace, updating the Executive Order 12372, which requires geographic coordinates for Snohomish intergovernmental consultation with AGENCY: Federal Aviation County Airport (Paine Field), Everett, State and local officials. (See 7 CFR part Administration (FAA), DOT. WA, and continues the operating hours 3015, subpart V.) ACTION: Final rule. to be effective during specific dates and times established in advance by Executive Order 12988 SUMMARY: This action will amend Class NOTAM. The Class E surface area This rule has been reviewed under D and E airspace at Snohomish County airspace at Snohomish County Airport Executive Order 12988, Civil Justice Airport (Paine Field), Everett, WA, by (Paine Field) will be continuous 24 Reform. This rule: (1) Preempts all State updating the geographic coordinates of hours, and no longer effective during and local laws and regulations that are the airport, and removes the operating specific dates and times established in

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advance by NOTAM. The geographic § 71.1 [Amended] DATES: Effective date, 0901 UTC, coordinates of the airport also will be ■ 2. The incorporation by reference in September 23, 2010. The Director of the updated. This action is necessary for the 14 CFR part 71.1 of the Federal Aviation Federal Register approves this safety and management of IFR Administration Order 7400.9T, Airspace incorporation by reference action under operations at the airport. Designations and Reporting Points, 1 CFR part 51, subject to the annual The FAA has determined that this signed August 27, 2009, and effective revision of FAA Order 7400.9 and regulation only involves an established September 15, 2009 is amended as publication of conforming amendments. body of technical regulations for which follows: FOR FURTHER INFORMATION CONTACT: Eldon Taylor, Federal Aviation frequent and routine amendments are Paragraph 5000 Class D Airspace. Administration, Operations Support necessary to keep them operationally * * * * * current. Therefore, this regulation: (1) Is Group, Western Service Center, 1601 not a ‘‘significant regulatory action’’ ANM WA D Everett, WA [Amended] Lind Avenue, SW., Renton, WA 98057; under Executive Order 12866; (2) is not Everett, Snohomish County Airport (Paine telephone (425) 203–4537. a ‘‘significant rule’’ under DOT Field), WA SUPPLEMENTARY INFORMATION: (Lat. 47°54′25″ N., long. 122°16′54″ W.) Regulatory Policies and Procedures (44 History FR 11034; February 26, 1979); and (3) That airspace extending upward from the does not warrant preparation of a surface to and including 3,100 feet MSL On April 19, 2010, the FAA published regulatory evaluation as the anticipated within a 4.5-mile radius of the Snohomish in the Federal Register a notice of County Airport (Paine Field). This Class D proposed rulemaking to amend Class E impact is so minimal. Since this is a airspace area is effective during specific dates routine matter that will only affect air airspace at Bozeman, MT (75 FR 20321). and times established in advance by a Notice Interested parties were invited to traffic procedures and air navigation, it to Airmen. The effective date and time will is certified that this rule, when thereafter by continuously published in the participate in this rulemaking effort by promulgated, will not have a significant Airport/Facility Directory. submitting written comments on the proposal to the FAA. No comments economic impact on a substantial Paragraph 6002 Class E airspace were received. number of small entities under the Designated as Surface Areas. Class E airspace designations are criteria of the Regulatory Flexibility Act. * * * * * published in paragraph 6004 and 6005, The FAA’s authority to issue rules respectively, of FAA Order 7400.9T regarding aviation safety is found in ANM WA E2 Everett, WA [Amended] Everett, Snohomish County Airport (Paine signed August 27, 2009, and effective Title 49 of the U.S. Code. Subtitle 1, September 15, 2009, which is Section 106 discusses the authority of Field), WA ° ′ ″ ° ′ ″ incorporated by reference in 14 CFR the FAA Administrator. Subtitle VII, (Lat. 47 54 25 N., long. 122 16 54 W.) That airspace extending upward from the part 71.1. The Class E airspace Aviation Programs, describes in more designations listed in this document detail the scope of the agency’s surface to and including 3,100 feet MSL within a 4.5-mile radius of the Snohomish will be published subsequently in that authority. This rulemaking is County Airport (Paine Field). Order. promulgated under the authority described in Subtitle VII, Part A, Issued in Seattle, Washington, on June 30, The Rule 2010. Subpart I, Section 40103. Under that John Warner, This action amends Title 14 Code of section, the FAA is charged with Federal Regulations (14 CFR) Part 71 by prescribing regulations to assign the use Manager, Operations Support Group, Western Service Center. adding additional Class E surface of airspace necessary to ensure the airspace, and additional Class E airspace [FR Doc. 2010–17130 Filed 7–14–10; 8:45 am] safety of aircraft and the efficient use of extending upward from 700 feet above airspace. This regulation is within the BILLING CODE 4910–13–P the surface, at Gallatin Field Airport, scope of that authority as it amends Bozeman, MT, to accommodate IFR controlled airspace at Snohomish DEPARTMENT OF TRANSPORTATION aircraft executing a new VOR SIAPs at County Airport (Paine Field), Everett, the airport. This action is necessary for WA. Federal Aviation Administration the safety and management of IFR operations at the airport. List of Subjects in 14 CFR Part 71 14 CFR Part 71 The FAA has determined this Airspace, Incorporation by reference, regulation only involves an established [Docket No. FAA–2009–1220; Airspace Navigation (air). body of technical regulations for which Docket No. 09–ANM–30] frequent and routine amendments are Adoption of the Amendment Amendment of Class E Airspace; necessary to keep them operationally Bozeman, MT current. Therefore, this regulation: (1) Is ■ In consideration of the foregoing, the not a ‘‘significant regulatory action’’ Federal Aviation Administration AGENCY: Federal Aviation under Executive Order 12866; (2) is not amends 14 CFR part 71 as follows: Administration (FAA), DOT. a ‘‘significant rule’’ under DOT ACTION: Final rule. Regulatory Policies and Procedures (44 PART 71—DESIGNATION OF CLASS A, FR 11034; February 26, 1979); and (3) B, C, D AND E AIRSPACE AREAS; AIR SUMMARY: This action will amend Class does not warrant preparation of a TRAFFIC SERVICE ROUTES; AND E airspace at Bozeman, MT, to regulatory evaluation as the anticipated REPORTING POINTS accommodate aircraft using a new VHF impact is so minimal. Since this is a Omni-Directional Radio Range (VOR) routine matter that will only affect air ■ 1. The authority citation for 14 CFR Standard Instrument Approach traffic procedures and air navigation, it part 71 continues to read as follows: Procedures (SIAPs) at Gallatin Field is certified this rule, when promulgated, Authority: 49 U.S.C. 106(g), 40103, 40113, Airport. This will improve the safety will not have a significant economic 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– and management of Instrument Flight impact on a substantial number of small 1963 Comp., p. 389. Rules (IFR) operations at the airport. entities under the criteria of the

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Regulatory Flexibility Act. The FAA’s ANM MT E5 Bozeman, MT [Modified] Subsequent to publication, the FAA’s authority to issue rules regarding Bozeman, Gallatin Field Airport, MT National Aeronautical Charting Office aviation safety is found in Title 49 of the (Lat. 45°46′39″ N., long. 111°09′07″ W.) found that the legal description was U.S. Code. Subtitle 1, Section 106 That airspace extending upward from 700 vague and needed to be clarified to discusses the authority of the FAA feet above the surface within a 13.5-mile avoid confusion on the part of pilots Administrator. Subtitle VII, Aviation radius of Gallatin Field Airport, and within flying in the area. Therefore, the legal Programs, describes in more detail the 4.8 miles northeast and 13 miles southwest description for Monterey Peninsula scope of the agency’s authority. This of the 316° bearing of the airport extending Airport has been reworded. This change rulemaking is promulgated under the from the 13.5-mile radius to 24.4 miles does not affect the boundaries of the authority described in Subtitle VII, Part northwest of Gallatin Field Airport. airspace area. A, Subpart I, Section 40103. Under that Issued in Seattle, Washington, on June 30, Class E airspace designations are section, the FAA is charged with 2010. published in paragraph 6002 of FAA prescribing regulations to assign the use John Warner, Order 7400.9T signed August 27, 2009, of airspace necessary to ensure the Manager, Operations Support Group, Western and effective September 15, 2009, which safety of aircraft and the efficient use of Service Center. is incorporated by reference in 14 CFR airspace. This regulation is within the [FR Doc. 2010–17131 Filed 7–14–10; 8:45 am] 71.1. The Class E airspace designations scope of that authority as it amends BILLING CODE 4910–13–P listed in this document will be controlled airspace at Gallatin Field published subsequently in that Order. Airport, Bozeman, MT. The Rule DEPARTMENT OF TRANSPORTATION List of Subjects in 14 CFR Part 71 This action will amend Title 14 Code Airspace, Incorporation by reference, Federal Aviation Administration of Federal Regulations (14 CFR) part 71 Navigation (air). by establishing Class E surface airspace 14 CFR Part 71 at Monterey Peninsula Airport, Adoption of the Amendment Monterey, CA, to accommodate IFR [Docket No. FAA–2009–1030; Airspace ■ In consideration of the foregoing, the Docket No. 09–AWP–8] aircraft executing new RNAV (RNP) Federal Aviation Administration SIAPs at the airport. This action is amends 14 CFR Part 71 as follows: Establishment of Class E Airspace; necessary for the safety and Monterey, CA management of IFR operations. With the PART 71—DESIGNATION OF CLASS A, exception of editorial changes, and the B, C, D AND E AIRSPACE AREAS; AIR AGENCY: Federal Aviation changes described above, this rule is the TRAFFIC SERVICE ROUTES; AND Administration (FAA), DOT. same as that proposed in the NPRM. REPORTING POINTS ACTION: Final rule. The FAA has determined this ■ regulation only involves an established 1. The authority citation for 14 CFR SUMMARY: This action will establish body of technical regulations for which Part 71 continues to read as follows: Class E airspace at Monterey, CA, to frequent and routine amendments are Authority: 49 U.S.C. 106(g), 40103, 40113, accommodate aircraft using a new Area necessary to keep them operationally 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– Navigation (RNAV) Required Navigation current. Therefore, this regulation: (1) Is 1963 Comp., p. 389. Performance (RNP) Standard Instrument not a ‘‘significant regulatory action’’ Approach Procedures (SIAPs) at § 71.1 [Amended] under Executive Order 12866; (2) is not Monterey Peninsula Airport. This action ‘‘ ’’ ■ a significant rule under DOT 2. The incorporation by reference in will improve the safety and Regulatory Policies and Procedures (44 14 CFR Part 71.1 of the Federal Aviation management of Instrument Flight Rules FR 11034; February 26, 1979); and (3) Administration Order 7400.9T, Airspace (IFR) operations at the airport. does not warrant preparation of a Designations and Reporting Points, DATES: Effective date, 0901 UTC, regulatory evaluation as the anticipated signed August 27, 2009, and effective September 23, 2010. The Director of the impact is so minimal. Since this is a September 15, 2009 is amended as Federal Register approves this routine matter that will only affect air follows: incorporation by reference action under traffic procedures and air navigation, it Paragraph 6004 Class E airspace are as 1 CFR part 51, subject to the annual is certified this rule, when promulgated, designated as an Extension to a Class D revision of FAA Order 7400.9 and will not have a significant economic surface area. publication of conforming amendments. impact on a substantial number of small * * * * * FOR FURTHER INFORMATION CONTACT: entities under the criteria of the ANM MT E4 Bozeman, MT [Modified] Eldon Taylor, Federal Aviation Regulatory Flexibility Act. The FAA’s Administration, Operations Support authority to issue rules regarding Bozeman, Gallatin Field Airport, MT aviation safety is found in Title 49 of the ° ′ ″ ° ′ ″ Group, Western Service Center, 1601 (Lat. 45 46 39 N., long. 111 09 07 W.) Lind Avenue, SW., Renton, WA 98057; U.S. Code. Subtitle 1, section 106 That airspace extending upward from the ° telephone (425) 203–4537. discusses the authority of the FAA surface within 3 miles each side of the 316 Administrator. Subtitle VII, Aviation bearing of Gallatin Field Airport, extending SUPPLEMENTARY INFORMATION: Programs, describes in more detail the from the 4.4-mile radius of the airport to 14 History miles northwest of Gallatin Field Airport; scope of the agency’s authority. This and that airspace 2.4 miles each side of the On November 18, 2009, the FAA rulemaking is promulgated under the 212° bearing of the Gallatin Field Airport, published in the Federal Register a authority described in subtitle VII, part extending from the 4.4-mile radius of the notice of proposed rulemaking to A, subpart I, section 40103. Under that airport to 7 miles northwest of Gallatin Field establish controlled airspace at section, the FAA is charged with Airport. Monterey, CA (74 FR 59491). Interested prescribing regulations to assign the use Paragraph 6005 Class E airspace areas parties were invited to participate in of airspace necessary to ensure the extending upward from 700 feet or more this rulemaking effort by submitting safety of aircraft and the efficient use of above the surface of the earth. written comments on the proposal to the airspace. This regulation is within the * * * * * FAA. No comments were received. scope of that authority as it establishes

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controlled airspace at Monterey DEPARTMENT OF TRANSPORTATION surface area airspace being rewritten Peninsula Airport, Monterey, CA. under separate rulemaking. This is an Federal Aviation Administration administrative change and does not List of Subjects in 14 CFR Part 71 affect the boundaries, altitudes, or 14 CFR Part 71 Airspace, Incorporation by reference, operating requirements of the airspace, Navigation (air). [Docket No. FAA–2010–0633; Airspace therefore, notice and public procedures Docket No. 10–AWP–12] under 5 U.S.C. 553(b) are unnecessary. Adoption of the Amendment The FAA has determined this Revision of Class E Airspace; regulation only involves an established Monterey, CA ■ In consideration of the foregoing, the body of technical regulations for which Federal Aviation Administration AGENCY: Federal Aviation frequent and routine amendments are amends 14 CFR part 71 as follows: Administration (FAA), DOT. necessary to keep them operationally ACTION: Final rule. current. Therefore, this regulation: (1) Is PART 71—DESIGNATION OF CLASS A, not a ‘‘significant regulatory action’’ B, C, D AND E AIRSPACE AREAS; AIR SUMMARY: This action revises Class E under Executive Order 12866; (2) is not TRAFFIC SERVICE ROUTES; AND airspace at Monterey Peninsula Airport, a ‘‘significant rule’’ under DOT REPORTING POINTS Monterey, CA. The FAA is taking this Regulatory Policies and Procedures (44 action in response to a request from the FR 11034; February 26, 1979); and (3) ■ 1. The authority citation for 14 CFR National Aeronautical Charting Office does not warrant preparation of a part 71 continues to read as follows: (NACO) to better clarify the legal regulatory evaluation as the anticipated description of controlled airspace Authority: 49 U.S.C. 106(g), 40103, 40113, impact is so minimal. Since this is a designated as an extension to Class C 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– routine matter that will only affect air surface area. 1963 Comp., p. 389. traffic procedures and air navigation, it DATES: Effective date, 0901 UTC, is certified this rule, when promulgated, § 71.1 [Amended] September 23, 2010. The Director of the will not have a significant economic Federal Register approves this impact on a substantial number of small ■ 2. The incorporation by reference in incorporation by reference action under entities under the criteria of the 14 CFR Part 71.1 of the Federal Aviation 1 CFR part 51, subject to the annual Regulatory Flexibility Act. The FAA’s revision of FAA Order 7400.9 and Administration Order 7400.9T, Airspace authority to issue rules regarding publication of conforming amendments. Designations and Reporting Points, aviation safety is found in Title 49 of the signed August 27, 2009, and effective FOR FURTHER INFORMATION CONTACT: U.S. Code. Subtitle 1, section 106 September 15, 2009 is amended as Eldon Taylor, Federal Aviation discusses the authority of the FAA follows: Administration, Operations Support Administrator. Subtitle VII, Aviation Group, Western Service Center, 1601 Programs, describes in more detail the Lind Avenue, SW., Renton, WA 98057; Paragraph 6002 Class E Airspace scope of the agency’s authority. This Designated as Surface Areas. telephone (425) 203–4537. rulemaking is promulgated under the * * * * * SUPPLEMENTARY INFORMATION: authority described in subtitle VII, part AWP CA, E2 Monterey, CA [New] History A, subpart I, section 40103. Under that section, the FAA is charged with Monterey Peninsula Airport, CA The FAA received a request from prescribing regulations to assign the use (Lat. 36°35′13″ N., long. 121°50′35″ W.) NACO to clarify the legal description of of airspace necessary to ensure the Within a 5-mile radius of the Monterey the existing Class E surface airspace area designated as an extension to Class C safety of aircraft and the efficient use of Peninsula Airport, and within 3 miles each airspace. This regulation is within the side of the 113° bearing of the airport airspace area, stating it was vague and scope of that authority as it revises extending from the 5-mile radius of Monterey confusing and needed to be clarified. controlled airspace at Monterey Peninsula Airport to 15.7 miles east of the This action is in response to that Peninsula Airport, Monterey, CA. airport. This Class E airspace area is effective request. during the specific dates and times Class E airspace designations are List of Subjects in 14 CFR Part 71 established in advance by a Notice to published in paragraph 6003 of FAA Airmen. The effective dates and times will Order 7400.9T signed August 27, 2009, Airspace, Incorporation by reference, thereafter be continuously published in the and effective September 15, 2009, which Navigation (air). Airport/Facility Directory. is incorporated by reference in 14 CFR 71.1. The Class E airspace designations Adoption of the Amendment Issued in Seattle, Washington, on July 1, listed in this document will be 2010. ■ published subsequently in that Order. In consideration of the foregoing, the John Warner, Federal Aviation Administration Manager, Operations Support Group, Western The Rule amends 14 CFR part 71 as follows: Service Center. This action will amend Title 14 Code PART 71—DESIGNATION OF CLASS A, [FR Doc. 2010–17248 Filed 7–14–10; 8:45 am] of Federal Regulations (14 CFR) part 71 B, C, D AND E AIRSPACE AREAS; AIR BILLING CODE 4910–13–P by revising the legal description of Class E airspace designated as an extension to TRAFFIC SERVICE ROUTES; AND Class C airspace area for Monterey REPORTING POINTS Peninsula Airport, Monterey, CA. The ■ legal description has been clarified to 1. The authority citation for 14 CFR avoid confusion on the part of pilots part 71 continues to read as follows: flying in the Monterey, CA, area. This Authority: 49 U.S.C. 106(g), 40103, 40113, action will be in concert with a change 40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959– in the legal description for Class E 1963 Comp., p. 389.

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§ 71.1 [Amended] Other Cruel, Inhuman or Degrading extent to which biometric measuring ■ 2. The incorporation by reference in Treatment or Punishment. BIS is devices, integrated data systems, 14 CFR Part 71.1 of the Federal Aviation publishing this rule as part of an simulators, and communications Administration Order 7400.9T, Airspace ongoing review of crime control license equipment should be added to the Designations and Reporting Points, requirements and policy. Commerce Control List; the degree to signed August 27, 2009, and effective DATES: This rule is effective July 15, which software and technology related September 15, 2009 is amended as 2010. to commodities on the Commerce follows: ADDRESSES: Comments on this rule may Control List should be listed and how such software and technology should be Paragraph 6003 Class E Airspace be submitted by e-mail directly to BIS at [email protected] (refer to described; and general policy issues Designated as an Extension to Class C such as whether the range of Surface Areas. Regulatory Identification Number (RIN) destinations to which crime control * * * * * 0694–AE42 in the subject line), or on paper to the Regulatory Policy Division, license requirements apply should be AWP CA, E3 Monterey, CA [Amended] Office of Exporter Services, Bureau of modified. Monterey Peninsula Airport, CA Industry and Security, Room H2705, Summary of the Comments on the ° ′ ″ ° ′ ″ (Lat. 36 35 13 N., long. 121 50 35 W.) U.S. Department of Commerce, 14th Proposed Rule and BIS’s Response to That airspace extending upward from the Street and Pennsylvania Avenue, NW. Those Comments surface within 3 miles each side of the 113° Washington, DC 20230. Refer to RIN bearing of the airport extending from the 5- 0694–AE42 in all comments. BIS received comments from two mile radius of Monterey Peninsula Airport to commenters, on individual and one FOR FURTHER INFORMATION CONTACT: Ron 15.7 miles east of the airport. This Class E non-profit organization, on the proposed Rolfe, Office of Non-proliferation and airspace area is effective during the specific rule. The comments and BIS’s responses Treaty Compliance, Bureau of Industry dates and times established in advance by a are summarized below. Notice to Airmen. The effective dates and and Security, telephone: 202 482–4563; times will thereafter be continuously fax: 202 482–4145; e-mail: Comment published in the Airport/Facility Directory. [email protected]. One commenter welcomed the strong Issued in Seattle, Washington, on July 1, SUPPLEMENTARY INFORMATION: and unambiguous statement in 2010. Background § 742.7(d) that the United States John Warner, considers international norms regarding Manager, Operations Support Group, Western The Export Administration human rights and the practices of other Service Center. Regulations (EAR) (15 CFR parts 730– countries that control exports to [FR Doc. 2010–17249 Filed 7–14–10; 8:45 am] 774) impose license requirements for promote human right when developing certain exports from the United States BILLING CODE 4910–13–P U.S. crime control export controls. That and reexports from other countries for, commenter noted that awareness of the among other reasons, ‘‘crime control.’’ centrality of human rights in export The crime control license requirements DEPARTMENT OF COMMERCE control policy helps international efforts are intended for the ‘‘support of U.S. to reform export control policy and Bureau of Industry and Security foreign policy to promote human rights serves as an example to other countries. throughout the world’’ (15 CFR Response 15 CFR Parts 742 and 774 742.7(a)). Publication of this rule is part of BIS’s ongoing effort to review and, This final rule retains the proposed [Docket No. 080721866–0167–02] where appropriate, revise the crime rule language in § 742.7(d). The control license requirements in the EAR. RIN 0694–AE42 centrality of human rights in connection As part of that effort, BIS published a with crime control license requirements Revisions to the Commerce Control notice of inquiry seeking public has been noted in the EAR for many List To Update and Clarify Crime comments on whether the scope of years. Control License Requirements items and destinations that are subject to crime control license requirements Comment AGENCY: Bureau of Industry and should be changed (73 FR 14769, March One commenter welcomed the use of Security, Commerce. 19, 2008). After reviewing those the word ‘‘including’’ in § 742.11, which ACTION: Final Rule. comments, and conducting its own sets license requirements and policy for internal deliberations, BIS decided to specially designed implements of SUMMARY: This rule updates and proceed in stages. This final rule is the torture. clarifies export and reexport license culmination of the first stage, which requirements on striking weapons, began with the publication of a Response restraint devices, shotguns and parts, proposed rule (74 FR 40117, August 11, Addition of the word ‘‘including’’ to optical sighting devices, and electric 2009). This first stage addresses § 742.11 and its related Export Control shock devices. It also adds equipment relatively simple extensions, Classification Number 0A983 is, as this designed for the execution of humans to modifications or removals of items commenter noted, intended to clarify the Commerce Control List. This rule currently on the Commerce Control List the point that the operative factor in makes no changes to the longstanding or additions to that List of items that determining whether an item is subject policy of denial of applications to have an easily identified crime control to ECCN 0A983 and § 742.11 is whether export or reexport specially designed or law enforcement nexus. that item is a specially designed implements of torture. The rule BIS plans to publish a subsequent implement of torture. The listed items provides additional illustrative proposed rule that will identify are examples of such instruments. examples of such items and adopts a potential expansion of certain Export definition of torture used in a U.S. Control Classification Numbers as Comment statute that implements the United suggested in the comments to this One commenter welcomed the Nations Convention against Torture and proposed rule; whether, and, if so, the addition of the term ‘‘shock sleeves’’ to

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the illustrative list of items ECCN 0A983 Comment to describe use or intended use. The (Specially Designed Implements of One commenter recommended that phrase ‘‘law enforcement’’ is intended as Torture) but noted that shock belts are BIS add Canada to the list of part of the descriptions of the items that not included in the 0A983 illustrative destinations requiring a license under those two ECCNs cover. The phrase list and that ‘‘stun cuffs’’ are included in ECCN 0A982, stating that the lack of a does not mean that a particular export the illustrative list for ECCN 0A982 license requirement for Canada poses a or reexport must be for a law (Law Enforcement Restraint Devices). diversion risk. Another comment stated enforcement purpose or to a law This commenter stated that shock belts, the same concern regarding ECCN enforcement organization in order for shock sleeves and stun cuffs pose the 0A985. one of those ECCNs to apply. BIS believes that no change to the wording same concerns about potential use in Response repressing human rights and suggested of these two ECCNs is needed to make this point, because absence of any that all three should be covered by BIS did not propose any changes to statement of use or intended use, when ECCN 0A983 under the collective term the destinations to which a license read consistently with the general ‘‘ would be required for items described body worn electronic restraint/electric pattern of language used in other ECCNs shock devices.’’ in these ECCNs. In addition, BIS’s longstanding practice is not to require indicates that neither ECCN 0A978 nor Response licenses for export or reexport to Canada 0A982 is tied to a particular end use. for most items. Currently, BIS does not Comment In deciding whether to classify an believe that Canada poses a diversion item as a specially designed implement risk that would justify a departure from One commenter welcomed new ECCN of torture or as a law enforcement this longstanding practice for these 0A981, which applies to equipment restraint device, BIS considers whether ECCNs. designed for the execution of human the item has legitimate law enforcement beings, but recommended that the uses. In some instances, law Comment wording of the ECCN be made enforcement authorities must restrain One commenter welcomed the use of illustrative to be consisted with ECCN’s violent persons and some level of force the word ‘‘including’’ in ECCN 0A978. 0A983 and 0A978. Two commenters will be needed to do so. Many items noted the absence of the phrase ‘‘and Response ’’ have potential to be used in abusing parts and accessories n.e.s in this As noted by this commenter, that ECCN. One commenter expressed a human rights; however not all of those word makes the list illustrative. The belief that such absence weakened the items are specially designed implements operative term for classifying something ECCN ‘‘because execution technologies of torture. Because legitimate law under ECCN 0A978 will be the term have a defined set of parts and enforcement activities sometimes ‘‘law enforcement striking weapons.’’ accessories and because of their obvious include the need to restrain violent Previously this ECCN covered only saps. potential in repressing human rights.’’ persons without resorting to lethal force, The other commenter stated that parts Comment BIS believes that some use of electric and accessories should be covered by shock devices in law enforcement may One commenter expressed concern this ECCN because doing so would be necessary. BIS has reassessed its that addition of the term ‘‘law strengthen the ECCN by making it earlier thinking and concluded that stun enforcement’’ in ECCNs 0A978 and in difficult to repair such equipment that cuffs, shock sleeves and shock belts are, 0A982 could lead to abuse. This exists outside the United States. in some situations, necessary to protect commenter offered as an example a law enforcement officers and the public situation in which a party might assert Response from violent persons. At the same time, that a set of handcuffs were not subject BIS believes that adding the word these commodities have sufficient to ECCN 0A982 because in a particular ‘‘parts’’ to ECCN 0A981 is not necessary potential to be used in the abuse of transaction, the handcuffs were being at this time, but will consider proposing human rights that they should be exported for a purpose other than law covering parts to this ECCN in a future subject to crime control license enforcement. rule. ECCN 0A981 covers equipment designed for the execution of human requirements. Accordingly, all three of Response those commodities should be treated as beings. BIS is not aware of export trade The language in these two ECCNs restraint devices rather than as in parts for these commodities. Because describes the items that are subject to implements of torture. Accordingly, this the proposed rule did not propose these ECCNs, not the end use to which final rule adds ‘‘shock belts,’’ ‘‘stun adding parts to any of this ECCN, public the items are put. Some type of modifier ’’ ‘‘ ’’ comments have not been sought on this cuffs and shock sleeves to the to the term ‘‘restraint devices’’ in 0A982 illustrative list of restraint devices idea. Identifying parts that may be is needed because BIS does not intend appropriate for an export license included in ECCN 0A982 . This final to cover all types of restraint devices, rule does not add ‘‘shock sleeves’’ to the requirement without imposing an export just those used in law enforcement. license requirement on general parts illustrative list of specially designed Similarly, some type of modifier is that, although usable in equipment implements of torture included in ECCN needed to the term striking weapons in designed for the execution of human 0A983 and to the heading of § 742.11 of ECCN 0A978. In general, ECCNs beings, have many other uses as well the EAR as was proposed in the describe an item without reference to would require both research by BIS and proposed rule. This final rule does not end-use to which an item will be put. public comment. Therefore, BIS will add stun cuffs to ECCN 0A985 as was In a few instances ECCNs are tied to a consider addressing the parts issue for proposed in the proposed rule. BIS specific use by express language these ECCNs in a future proposed rule. believes that the EAR will be clearer if referring to the use (See e.g, ECCN all law enforcement restraint devices, 1C298, which applies to certain graphite Comment regardless of whether they operate by ‘‘that is intended for use other than in One commenter stated that in ECCN physical or electrical means, are listed a nuclear reactor’’). ECCNs 0A978 and 0E984, the wording ‘‘buckshot shotgun under a single ECCN. 0A982 do not employ similar language shells.’’ is too restrictive given the

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increasing range of less-lethal shotgun Summary of the Changes Made by This requirements for several items that have shells on the market, their wide use in Rule substantially similar crime control crime control and the potential for Revisions to § 742.7—Crime control— functions. repressing human rights. That This rule revises the section heading to Creation of ECCN 0A981—Equipment commenter urged BIS to expand ECCN read ‘‘Crime control and detection’’ to for the Execution of Human Beings— 0E984 to encompass technology for the reflect the contents of the section. It also This rule creates a new ECCN 0A981 development or production of all revises paragraph (a) to set forth an all that applies to equipment designed for shotgun shells. destination license requirement for a the execution of human beings. Such Response new ECCN 0A981 that would apply to equipment will require a license to all equipment designed for the execution of destinations. BIS is adding this ECCN In the proposed rule, BIS proposed because equipment designed for the replacing three different reasons for human beings. Finally, this rule revises paragraph (d) to state that in execution of human beings has a clear control (CC 1, CC 2 and CC 3) for nexus to crime control and an obvious technology for the development and maintaining these controls, the United States considers international norms potential use in repressing human production of shotguns with a single rights. reason (CC 1). The reasons for control and the practices of other countries that Revisions to ECCN 0A982—Restraint varied according to the barrel length of control exports to promote the Devices—Several changes are being the shotgun. BIS proposed the change observance of human rights; however, made to this ECCN to (a) make clear that because most of the technology for the the controls are not based on the development or production of a shotgun decisions of any multilateral export it applies to law enforcement restraint would not vary based on barrel length. control regime and may differ from devices, rather than safety or medical No commenters objected to this controls imposed by other countries. equipment, (b) update the illustrative proposed change. The reference to This rule removes certain language from list of commodities to which this ECCN ‘‘buckshot shotgun shells’’ in ECCN paragraph (d) that could have been read applies, and (c) cross reference other 0E984 was pre-existing language that as erroneously implying that the United ECCNs that apply to similar devices. BIS did not propose to change. This States is the only country that imposes These changes are intended to focus the commenter suggests that BIS go further export controls on crime control and ECCN on items of crime control than the proposal and make ECCN detection items. significance and to reduce the 0E984 applicable to technology for the Revisions to § 742.11—Specially possibility of misinterpretations. The development and production of all designed implements of torture *** rule adds the phrase ‘‘Law enforcement’’ shotgun shells. BIS believes that before —This rule revises the heading to match to the ECCN heading. This rule adds expanding the scope of this ECCN, the the revised language that this rule ‘‘multipoint restraint devices including proposal should be set forth in a applies to ECCN 0A983, i.e. ‘‘Specially restraint chairs’’ to the illustrative list of proposed rule with an opportunity for designed implements of torture, restraint devices because use of these public comment. Accordingly, BIS is including thumbscrews, thumbcuffs, devices has increased in recent years not adopting this commenter’s proposal fingercuffs, spiked batons and parts and and because they have potential for use at this time, but may propose it in a accessories, n.e.s.’’ This rule also revises in human rights abuse. This rule adds future rule. paragraph (d) to state that in stun cuffs, shock sleeves, and shock maintaining these controls, the United belts to ECCN 0A982. The proposed rule Comment States considers international norms would have added shock sleeves to One commenter expressed concern and the practices of other countries that ECCN 0A983 and stun cuffs to ECCN because ECCN 3A981 aggregates control exports to promote the 0A985. As pointed out in the public different types of equipment which observance of human rights; however, comments, the proposed rule did not serve different functions, namely the controls are not based on the address shock belts at all. Upon analysis technologies, biometric decisions of any multilateral export reflection, BIS has concluded that each technologies and penal technologies. control regime and may differ from of these three devices has a legitimate This commenter recommended that BIS controls imposed by other countries. law enforcement use in restraining disaggregate such technologies into This rule removes certain language from violent persons. Each can be additional ECCN’s wherever possible. paragraph (d) that could have been read distinguished from the specially The commenter stated that such as erroneously implying that the United designed implements of torture in ECCN disaggregating would promote best States is the only country that imposes 0A983, which have no legitimate law practices and clarity, and facilitate export controls on specially designed enforcement uses and from the shock reporting and analysis of licensable implements of torture. This rule makes devices in ECCN 0A985, which can be exports. no changes to the policy of denial of used to apply non-lethal force to protect applications to export items subject to law enforcement personnel and others Response § 742.11 or to the prohibition (stated in from violent persons. Placing these Disaggregating commodities currently § 740.2(a)(10) of the EAR) on use of three devices in the law enforcement covered by ECCN 3A981 might provide license exceptions to export restraint device ECCN will add clarity to the clarity that this commenter suggests. commodities subject to § 742.11 of the the EAR. The rule also revises the However, doing so might also impose EAR. related controls paragraph of this ECCN costs on or engender confusion among Revisions to ECCN 0A978—Saps— to note two related export license parties accustomed to the current The items covered by this ECCN are requirements: finger cuffs are classified Commerce Control List structure. BIS expanded from ‘‘saps’’ to ‘‘law under ECCN 0A983—specially designed believes that such a restructuring should enforcement striking weapons.’’ Saps, implements of torture, and electronic not be undertaken without notice and police batons, side handle batons, devices that monitor and report a an opportunity for public comment. tonfas, sjamboks, and whips are listed as person’s location to enforce restrictions Accordingly BIS may propose examples of law enforcement striking on movement for law enforcement or disaggregating the contents of ECCN weapons. BIS believes that this change penal reasons are controlled under 3A981 in a future proposed rule. will provide consistent license ECCN 3A981.

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Finally, this rule adds a note stating Convention Against the Illicit impaired patients to appropriate that ECCN 0A982 does not apply to Manufacturing of and Trafficking in medical facilities. BIS views these medical devices that are equipped to Firearms, Ammunition, Explosives and changes as clarifications rather than restrain patient movement during Other Related Materials. substantive changes. medical procedures, devices that Revisions to ECCN 0A985—Discharge Consistent with the provisions of confine memory-impaired patients to Type Arms—ECCN 0A985 applies to section 6 of the Export Administration appropriate medical facilities, or safety discharge type arms and to some Act of 1979, as amended (EAA), a equipment such as safety belts or child electroshock devices that are not foreign policy report was submitted to automobile safety seats. discharge type arms. To provide greater Congress on July 12, 2010, notifying BIS believes that this revised language clarity and to include a representative Congress of the imposition of foreign clarifies the scope of ECCN 0A982 and description of devices currently policy-based licensing requirements is not a substantive change. available, this proposed rule adds the reflected in this rule. Revisions to ECCN 0A983—Specially phrase ‘‘devices to administer electric Although the Export Administration Designed Implements of Torture—This shock’’ to the heading and adds shock Act expired on August 20, 2001, the rule makes no changes to the EAR’s shields to the illustrative list of items President, through Executive Order stated policies of denial of license classified under this ECCN. This rule 13222 of August 17, 2001, 3 CFR, 2001 applications for the export or reexport of also adds references to the ‘‘Related Comp., p. 783 (2002), as extended by the specially designed implements of Controls’’ paragraph informing readers Notice of August 13, 2009 (74 FR 41325 torture and prohibition of use of any that electronic devices that monitor and (August 14, 2009)), has continued the license exception to export or reexport report a person’s location to enforce Export Administration Regulations in specially designed implements of restrictions on movement for law effect under the International torture. enforcement or penal reasons are Emergency Economic Powers Act. The heading of ECCN 0A983 is being controlled under ECCN 3A981 and that Rulemaking Requirements revised to add the word ‘‘including’’ law enforcement restraint devices that immediately following the phrase administer an electric shock are 1. This rule is significant for purposes ‘‘specially designed implements of controlled under ECCN 0A982. of Executive Order 12866. torture’’ to make clear that the items Revisions to ECCN 0A987—Optical 2. Notwithstanding any other listed are examples of specially Sighting Devices for Firearms—This rule provision of law, no person is required designed implements of torture rather replaces the general description in the to respond to nor be subject to a penalty than an exclusive list of such heading of ECCN 0A987 with a list of for failure to comply with a collection implements. The heading is also being items controlled. With this change, the of information, subject to the revised to add fingercuffs, and spiked ECCN clearly states that it applies to requirements of the Paperwork batons to the ECCN as additional specific sighting devices, their Reduction Act of 1995 (44 U.S.C. 3501 examples of specially designed associated optical elements, and et seq.) (PRA), unless that collection of implements of torture. A new note adjustment mechanisms. information displays a currently valid provides that ‘‘torture’’ in this ECCN has Revisions to ECCN 0E984— Office of Management and Budget the same meaning as set forth in 18 Technology for shotguns—This rule (OMB) Control Number. This rule U.S.C. 2340(1), which is the definition revises ECCN 0E984 to apply CC involves a collection of information that employed by the United States criminal Column 1 as a reason for control of has been approved by OMB under statute that implements the United technology for the development and control number 0694–0088, which Nations Convention against Torture and production of all shotguns and shotgun carries a burden hour estimate of 58 Other Cruel, Inhuman or Degrading shells controlled by ECCN 0A984. minutes to prepare and submit form Treatment or Punishment. BIS believes Currently, ECCN 0E984 applies reasons BIS–748. Miscellaneous and that these changes will more clearly for control that are parallel to the recordkeeping activities account for 12 distinguish specially designed reasons for control in ECCN 0A984, i.e., minutes per submission. BIS believes implements of torture from crime CC Column 1, 2, or 3 is applied that the changes proposed will increase control and detection items. depending on whether the barrel length the number of submissions subject to Revisions to ECCN 0A984— exceeds 24 inches and whether the end- this collection by approximately 1,200 Shotguns—This rule removes the phrase user is a law enforcement agency. BIS is annually. Send comments regarding ‘‘parts n.e.s.’’ and adds the following making the change described in this these burden estimates or any other specific parts for the shotguns paragraph because it believes that the aspect of these collections of controlled by this ECCN: Barrels of 18 technology for the development and information, including suggestions for inches (45.72 cm) or longer but not production of shotguns is substantially reducing the burden, to Jasmeet Seehra, longer than 24 inches (60.96 cm), the same for all shotguns with barrel Office of Management and Budget receivers, breech mechanisms, complete length exceeding 18 inches and does not (OMB), by e-mail to trigger mechanisms, and magazines or vary based on the end user of the [email protected], or by fax to (202) magazine extension tubes. The parts are shotgun. 395–7285; and to the Regulatory Policy subject to CC column 1 license Revisions to ECCN 3A981— Division, Bureau of Industry and requirements. BIS believes that the Polygraphs and other electronic Security, Department of Commerce, purposes of the control can be met by devices—This rule adds a cross Room 2705, 14th Street and retaining the license requirement on the reference to the restraint devices Pennsylvania Ave., NW., Washington, shotguns themselves and on the critical controlled by ECCN 0A982. This rule DC 20230. parts set forth in this rule. BIS believes also adds a note expressly stating that 3. This rule does not contain policies that continuing to require licenses for the electronic monitoring restraint with Federalism implications as this other parts would pose a burden on devices in ECCN 3A981 are devices that term is defined in Executive Order legitimate trade in shotgun repair parts monitor or report the location of 13132. that is not needed to achieve the confined persons for law enforcement or 4. The provision of the Administrative purpose of these controls or of the penal reasons. The note excludes Procedure Act (5 U.S.C. 553) requiring controls related to the Inter-American devices used to confine memory a delay in effective date, is inapplicable

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because this regulation involves a U.S.C. 7210; Sec 1503, Pub. L. 108–11, 117 Comp., p. 783; Notice of August 13, 2009, 74 military or foreign affairs function of the Stat. 559; E.O. 12058, 43 FR 20947, 3 CFR, FR 41325 (August 14, 2009). 1978 Comp., p. 179; E.O. 12851, 58 FR 33181, United States (see 5 U.S.C. 553(a)(1)). ■ 3 CFR, 1993 Comp., p. 608; E.O. 12938, 59 5. In Supplement No. 1 to part 774, Delay in implementation could thwart Category 0, revise the heading of Export the United States’ commitment to FR 59099, 3 CFR, 1994 Comp., p. 950; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. Control Classification (ECCN) 0A978 to promote the observance of human rights 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 read as follows: around the world. Any delay in the Comp., p. 783; Presidential Determination effective date of this rule could result in 2003–23 of May 7, 2003, 68 FR 26459, May Supplement No. 1 to Part 774—The efforts to export restraint devices, 16, 2003; Notice of August 13, 2009, 74 FR Commerce Control List equipment for the execution of human 41325 (August 14, 2009); Notice of November * * * * * beings or technology for certain shotgun 6, 2009, 74 FR 58187 (November 10, 2009). 0A978 Law enforcement striking production to regimes or parties that ■ 2. In § 742.7, revise the heading, weapons, including saps, police batons, side abuse human rights or that would use redesignate existing paragraph (a)(5) as handle batons, tonfas, sjamboks, and whips. the items to inflict torture before the paragraph (a)(6), add a new paragraph * * * * * license requirements become effective. (a)(5) and revise paragraph (d) to read as ■ 6. In Supplement No. 1 to part 774, In addition, immediate implementation follows: Category 0, add a new ECCN 0A981 of the changes that focus license immediately following ECCN 0A980 § 742.7 Crime control and detection. requirements for shotgun parts and and immediately preceding ECCN optical sighting devices parts impose no (a) * * * 0A982 to read as follows: new burden on the public and will (5) Items designed for the execution of allow BIS to focus its licensing and human beings as identified in ECCN Supplement No. 1 to Part 774—The enforcement resources on the critical 0A981 require a license to all Commerce Control List parts, such as barrels, receivers, trigger destinations including Canada. * * * * * mechanisms and optical elements, that * * * * * 0A981 Equipment designed for the give these items their essential (d) U.S. controls. In maintaining its execution of human beings (See list of items capabilities for harm rather than controls on crime control and detection controlled). dissipating such resources by evaluating items, the United States considers License Requirements license applications for and enforcing international norms regarding human export controls on such relatively Reason for Control: CC. rights and the practices of other Control(s): CC applies to entire entry. A innocuous and easily fabricated items as countries that control exports to license is required for ALL destinations springs, screws, washers and mounting promote the observance of human regardless of end-use. Accordingly, a column brackets. In addition, the provisions of rights. However, these controls are not specific to this control does not appear on the this rule that provide clarifications or based on the decisions of any Commerce Country Chart. (See § 742.7 of the additional cross references are not multinational export control regime and EAR for additional information.) substantive changes. Because those may differ from controls imposed by License Exceptions provisions are not substantive changes, other countries. LVS: N/A. the provision of the 5 U.S.C. 553 ■ 3. In § 742.11, revise the heading and GBS: N/A. requiring a delay in effective date is paragraph (d) to read as follows: CIV: N/A. inapplicable. BIS provided a notice of proposed rulemaking and an § 742.11 Specially designed implements of List of Items Controlled opportunity for public comment for this torture, including thumbscrews, Unit: $ value. rule (74 FR 40117, August 11, 2009). thumbcuffs, fingercuffs, spiked batons, and Related Controls: N/A. parts and accessories, n.e.s. Nevertheless, because such notice of Related Definitions: N/A. proposed rulemaking and an * * * * * Items: a. Gallows and guillotines. opportunity for public comment were (d) U.S. controls. In maintaining its b. Electric chairs for the purpose of controls on specially designed executing human beings. not required to be given for this rule by c. Air tight vaults designed for the 5 U.S.C. 553, or by any other law, the instruments of torture the United States considers international norms regarding execution of human beings by the analytical requirements of the administration of a lethal gas or substance. Regulatory Flexibility Act (5 U.S.C. 601 human rights and the practices of other d. Automatic drug injection systems et seq.) are not applicable. countries that control exports to designed for the execution of human beings promote the observance of human by administration of a lethal substance. List of Subjects rights. However, these controls are not ■ 7. In Supplement No. 1 to part 774, 15 CFR Part 742 based on the decisions of any Category 0, ECCN 0A982, revise the multinational export control regime and Exports, Terrorism. heading, revise the ‘‘Related Controls’’ may differ from controls imposed by paragraph in the ‘‘List of Items 15 CFR Part 774 other countries. Controlled’’ section and add a note at Exports, Reporting and recordkeeping PART 774—[AMENDED] the end of ECCN 0A982 to read as requirements. follows: ■ ■ 4. The authority citation for part 774 Accordingly, BIS amends the Export Supplement No. 1 to Part 774—The continues to read as follows: Administration Regulations (15 CFR Commerce Control List Parts 730–774) as follows: Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 1701 et seq.; 10 U.S.C. 7420; 10 U.S.C. * * * * * PART 742—[AMENDED] 7430(e); 22 U.S.C. 287c, 22 U.S.C. 3201 et 0A982 Law enforcement restraint devices, including leg irons, shackles, and ■ 1. The authority citation for part 742 seq., 22 U.S.C. 6004; 30 U.S.C. 185(s), 185(u); 42 U.S.C. 2139a; 42 U.S.C. 6212; 43 U.S.C. handcuffs; straight jackets; stun cuffs; shock continues to read as follows: 1354; 15 U.S.C. 1824a; 50 U.S.C. app. 5; 22 belts; shock sleeves; multipoint restraint Authority: 50 U.S.C. app. 2401 et seq.; 50 U.S.C. 7201 et seq.; 22 U.S.C. 7210; E.O. devices such as restraint chairs; and parts U.S.C. 1701 et seq.; 22 U.S.C. 3201 et seq.; 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. and accessories, n.e.s. 42 U.S.C. 2139a; 22 U.S.C. 7201 et seq.; 22 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 * * * * *

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List of Items Controlled ■ 8. In Supplement No. 1 to part 774, section of ECCN 0A984 to read as Unit: $ *** Category 0, ECCN 0A983, revise the follows: Related Controls: Thumbcuffs and heading, and add a note at the end of Supplement No. 1 to Part 774—The fingercuffs are classified under ECCN 0A983, ECCN 0A983 to read as follows: specially designed implements of torture. Commerce Control List Supplement No. 1 to Part 774—The Restraint devices that electronically monitor * * * * * or report the location of confined persons for Commerce Control List 0A984 Shotguns with barrel length 18 law enforcement or penal reasons are * * * * * inches (45.72 cm) or over; receivers; barrels controlled under ECCN 3A981. 0A983 Specially designed implements of of 18 inches (45.72 cm) or longer but not * * * * * torture, including thumbscrews, thumbcuffs, longer than 24 inches (60.96 cm); complete Note to ECCN 0A982. This ECCN applies fingercuffs, spiked batons, and parts and trigger mechanisms; magazines and magazine to restraint devices used in law enforcement accessories, n.e.s. extension tubes; complete breech activities. It does not apply to medical * * * * * mechanisms; buckshot shotgun shells; except devices that are equipped to restrain patient Note to ECCN 0A983. In this ECCN, equipment used exclusively to treat or movement during medical procedures. It ‘‘torture’’ has the meaning set forth in Section tranquilize animals, and except arms does not apply to devices that confine 2340(1) of Title 18, United States Code. designed solely for signal, flare, or saluting memory impaired patients to appropriate use. medical facilities. It does not apply to safety ■ 9. In Supplement No. 1 to part 774, equipment such as safety belts or child Category 0, ECCN 0A984, revise the License Requirements automobile safety seats. heading and the license requirements Reason for Control: CC, FC, UN.

Control(s) Country chart

FC applies to entire entry ...... FC Column 1. CC applies to shotguns with a barrel length greater than or equal to 18 in. (45.72 cm), but less than 24 in. CC Column 1. (60.96 cm), shotgun parts controlled by this entry, and buckshot shotgun shells controlled by this entry, regardless of end-user. CC applies to shotguns with a barrel length greater than or equal to 24 in. (60.96 cm), regardless of end- CC Column 2. user. CC applies to shotguns with a barrel length greater than or equal to 24 in. (60.96 cm) if for sale or resale CC Column 3. to police or law enforcement. UN applies to entire entry ...... Iraq, North Korea, and Rwanda.

* * * * * Electronic devices that monitor and report a b. Holographic sights. ■ 10. In Supplement No. 1 to part 774, person’s location to enforce restrictions on c. Reflex or ‘‘red dot’’ sights. movement for law enforcement or penal d. Reticle sights. Category 0, ECCN 0A985, revise the reasons are controlled under ECCN 3A981. e. Other sighting devices that contain heading and the ‘‘Related Controls’’ * * * * * optical elements. paragraph of the ‘‘List of Items f. Laser pointing devices designed for use ■ Controlled’’ section to read as follows: 11. In Supplement No. 1 to part 774, on firearms. Category 0, ECCN 0A987, revise the g. Lenses, other optical elements and Supplement No. 1 to Part 774—The heading and the ‘‘Items’’ paragraph of adjustment mechanisms for articles in Commerce Control List the ‘‘List of Items Controlled’’ section to paragraphs a, b, c, d or e. * * * * * read as follows: ■ 0A985 Discharge type arms and devices 12. In Supplement No. 1 to part 774, to administer electric shock, for example, Supplement No. 1 to Part 774—The Category 0, ECCN 0E984, revise the stun guns, shock batons, shock shields, Commerce Control List license requirements section of ECCN electric cattle prods, immobilization guns * * * * * 0E984 to read as follows: and projectiles; except equipment used 0A987 Optical sighting devices for Supplement No. 1 to Part 774—The exclusively to treat or tranquilize animals, firearms (including shotguns controlled by and except arms designed solely for signal, 0A984); and parts (See list of items Commerce Control List flare, or saluting use; and parts, n.e.s. controlled). * * * * * * * * * * * * * * * 0E984 ‘‘Technology’’ for the List of Items Controlled List of Items Controlled ‘‘development’’ or ‘‘production’’ of shotguns controlled by 0A984 and buckshot shotgun Unit: *** Unit: *** shells. Related Controls: Law enforcement Related Controls: *** restraint devices that administer an electric Related Definitions: *** License Requirements shock are controlled under ECCN 0A982. Items: a. Telescopic sights. Reasons for Control: CC, UN

Control(s) Country chart

CC applies to ‘‘technology’’ for shotguns with a barrel length over 18 in. (45.72 cm), and for shotgun shells CC Column 1. controlled by ECCN 0A984.. UN applies to entire entry ...... Iraq, North Korea, and Rwanda.

* * * * * the end of ECCN 3A981 to read as Supplement No. 1 to Part 774—The ■ 13. In Supplement No. 1 to part 774, follows: Commerce Control List Category 3, revise the ‘‘Related Controls’’ * * * * * paragraph of the ‘‘List of Items Controlled’’ section and add a note to

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3A981 Polygraphs (except biomedical receive them no later than September Background recorders designed for use in medical 13, 2010. facilities for monitoring biological and Medicare Part B is a voluntary neurophysical responses); fingerprint ADDRESSES: You may submit comments medical insurance program that analyzers, cameras and equipment, n.e.s.; by any one of three methods—Internet, provides coverage for services such as automated fingerprint and identification fax, or mail. Do not submit the same physician’s care, diagnostic services, retrieval systems, n.e.s.; psychological stress comments multiple times or by more and medical supplies. A beneficiary analysis equipment; electronic monitoring than one method. Regardless of which enrolled in Medicare Part B pays restraint devices; and specially designed method you choose, please state that parts and accessories, n.e.s. monthly premiums, deductibles, and co- your comments refer to Docket No. * * * * * insurance associated with covered SSA–2009–0078 so that we may services. The Centers for Medicare & List of Items Controlled associate your comments with the Medicaid Services (CMS) promulgates Unit: *** correct regulation. rules and regulations about the Related Controls: See ECCN 0A982 for Caution: You should be careful to Medicare program, including the other types of restraint devices. standard monthly premium. We Related Definitions: *** include in your comments only Items: *** information that you wish to make determine and deduct the amount of certain Medicare Part B premiums from Note to ECCN 3A981. In this ECCN, publicly available. We strongly urge you electronic monitoring restraint devices are not to include in your comments any beneficiaries’ Social Security benefits devices used to record or report the location personal information such as Social and make rules and regulations of confined persons for law enforcement or Security numbers or medical necessary to carry out these functions. penal reasons. The term does not include information. The Federal Government subsidizes devices that confine memory impaired 1. Internet: We strongly recommend the cost of Medicare Part B medical patents to appropriate medical facilities. that you submit your comments via the coverage. However, beneficiaries with Dated: July 12, 2010. Internet. Please visit the Federal modified adjusted gross incomes Kevin J. Wolf, eRulemaking portal at http:// (MAGI) above a specified threshold Assistant Secretary for Export www.regulations.gov. Use the Search must pay a higher percentage of their Administration. function to find docket number SSA– cost than those with MAGIs below the 1 [FR Doc. 2010–17338 Filed 7–14–10; 8:45 am] 2009–0078. The system will issue a threshold. We refer to this subsidy BILLING CODE 3510–33–P tracking number to confirm your reduction as an IRMAA. CMS submission. You will not be able to determines and publishes the annual view your comment immediately MAGI thresholds and ranges. SOCIAL SECURITY ADMINISTRATION because we must post each comment The Internal Revenue Service (IRS) manually. It may take up to a week for provides us with MAGI information. We 20 CFR Part 418 your comment to be viewable. use MAGI and Federal income tax filing [Docket No. SSA–2009–0078] 2. Fax: Fax comments to (410) 966– status for the tax year 2 years before the 2830. effective year to determine whether a RIN 0960–AH06 3. Mail: Mail your comments to the beneficiary must pay an IRMAA, and if so, how much.2 If information is not yet Amendments to Regulations Office of Regulations, Social Security Administration, 107 Altmeyer Building, available for the tax year 2 years before Regarding Major Life-Changing Events the effective year, we will use Affecting Income-Related Monthly 6401 Security Boulevard, Baltimore, Maryland 21235–6401. information from the tax year 3 years Adjustment Amounts to Medicare Part before the effective year until the later B Premiums Comments are available for public information becomes available. viewing on the Federal eRulemaking AGENCY: Social Security Administration. portal at http://www.regulations.gov or A beneficiary who experiences a ACTION: Interim rule with request for in person, during regular business major life-changing event may request comments. hours, by arranging with the contact that we use a more recent tax year to person identified below. make a new IRMAA determination. If a SUMMARY: We are modifying our beneficiary provides evidence that the regulations to clarify and revise what we FOR FURTHER INFORMATION CONTACT: qualifying major life-changing event consider major life-changing events for Craig Streett, Office of Income Security reduces his or her MAGI below the the Medicare Part B income-related Programs, Social Security threshold amount, we will determine monthly adjustment amount (IRMAA) Administration, 2–R–24 Operations the IRMAA based on data from a more and what evidence we require to Building, 6401 Security Boulevard, recent tax year.3 We define a significant support a claim of a major life-changing Baltimore, MD 21235–6401, (410) 965– reduction in MAGI as any change that event. Recent changes in the economy 9793. For information on eligibility or results in a reduction or elimination of and other unforeseen events have had a filing for benefits, call our national toll- IRMAA.4 The Social Security Act significant effect on many Medicare Part free number, 1–800–772–1213 or TTY provides that major life-changing events B beneficiaries. The changes we are 1–800–325–0778, or visit our Internet include marriage, divorce, death of making in this interim final rule will site, Social Security Online, at http:// allow us to respond appropriately to www.socialsecurity.gov. 1 MAGI is defined in 42 U.S.C. 1395r(i)(4). The circumstances brought about by the threshold amount is defined in 42 U.S.C. current economic climate and other SUPPLEMENTARY INFORMATION: 1395r(i)(2). unforeseen events, as described below. Electronic Version 2 MAGI ranges are established in 42 U.S.C. DATES: 1395r(i)(3), (5). The MAGI dollar amounts listed in 1395r(i)(3) may increase annually based on changes Effective Date: This interim rule will The electronic file of this document is in the Consumer Price Index under 42 U.S.C. be effective July 15, 2010. available on the date of publication in 1395r(i)(5). Comment Date: To ensure that your the Federal Register at http:// 3 20 CFR 418.1201. comments are considered, we must www.gpoaccess.gov/fr/index.html. 4 20 CFR 418.1215.

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spouse, or other events specified in our spouse of a beneficiary due to a loss of change will qualify both insured and regulations.5 income-producing property is a major uninsured pension plans. Our current regulations identify the life-changing event. In order to qualify We are further revising sections following additional events as major as a major life-changing event, the loss 418.1205(e) and (f) and 418.1255(e) and life-changing events: (1) The annulment of income-producing property must not (f) to remove the wording that requires of a marriage, (2) a work stoppage, be at the direction of the beneficiary, a reduction in or loss of income from (3) reduced hours of work, (4) such as through the sale or transfer of these life-changing events. This reductions in income due to certain the property. Section 418.1205(e) language has confused beneficiaries and losses of income-producing property, (5) provides some examples of qualifying adjudicators and is redundant in light of a scheduled cessation of a pension, and property losses. Most examples in the the first sentence of current section (6) a reduction in or loss of income from current regulation result from natural 418.1201(b), which we are not revising. an insured pension plan due to disasters, but we also include the loss of That sentence says that in order to use termination or reorganization of the income from real property due to the information from a more recent tax year plan.6 Our current regulations also criminal act of arson as an example of because of a major life-changing event, provide that we do not consider events a life-changing event. Some the event must ‘‘result in a significant other than those described in 20 CFR beneficiaries also have experienced a reduction in your modified adjusted 418.1205 to be major life-changing loss of income-producing property as gross income for the year which you events. In addition, under our current the result of another type of criminal request we use and the next year, if regulations we do not consider events act: Fraud or theft. To address this applicable.’’ The change we are making that affect expenses but not income, or situation, we are revising 20 CFR will make the wording of the revised that result in the loss of dividend 418.1205(e) to include the loss of subsections consistent with that of the income, to be major life-changing investment property as a result of fraud subsections explaining other life- events.7 or theft due to a criminal act by a third changing events found in 20 CFR Recent changes in the economy and party. 418.1205 and 20 CFR 418.1255. other unforeseen events have We are also making several other significantly affected many Medicare changes to this section of our Required Evidence Part B beneficiaries. These unforeseen regulations. First, we are specifically We are also revising 20 CFR 418.1255 events have caused reductions in the providing that the beneficiary’s spouse to clarify the type of evidence we MAGI of beneficiaries for the tax years cannot direct the loss of income- require when a beneficiary asks us to following the tax year reported to us by producing property. While our current use a more recent tax year to calculate the IRS, which results in IRMAAs that regulations state that the loss cannot be an IRMAA based on certain changes in may be higher than a beneficiary’s at the direction of the beneficiary, it was circumstance. If a beneficiary or his or ability to pay. Several major employers our intent to include both the her spouse experiences a loss of income- in the United States have closed or beneficiary and spouse. Second, we are producing property due to criminal reorganized in recent years. As a result, revising section 418.1205(e) to clarify fraud or theft by a third party, we will some companies have provided that the loss of income-producing require proof of the conviction and settlement payments to current and property due to the ordinary risk of evidence of loss. If a beneficiary or his retired employees in lieu of periodic investment is not a major life-changing or her spouse experiences a scheduled pension payments, extended health event. In some cases, beneficiaries and cessation, termination, or reorganization insurance coverage, or both. These adjudicators have misinterpreted our of an employer’s pension plan, we will settlement payments have caused an current regulations in this regard. We require evidence documenting the unexpected one-time increase in a are making a similar change to 20 CFR change in or loss of the pension. If a beneficiary’s income for a tax-reporting 418.1210(b) to clarify that we do not beneficiary or his or her spouse receives year, which in turn may result in the consider events that result in the loss of a settlement from an employer or a imposition of an IRMAA or a higher dividend income as the result of the former employer because of the IRMAA. ordinary risk of investment to be major employer’s closure, bankruptcy, or In order to address these recent life-changing events. reorganization, we will require evidence changes in the economy, we are adding Our current regulations provide that documenting the settlement and the a new paragraph (g) to 20 CFR 418.1205 ‘‘a reduction in or loss of income from reason(s) for the settlement. These to include the receipt of a settlement an insured pension plan due to changes will make it easier for a payment from an employer or former termination or reorganization of the beneficiary to meet the burden of proof employer in the list of major life- pension plan or a scheduled cessation of for establishing a major life-changing changing events. To qualify as a major pension’’ qualifies as a major life- event. life-changing event, a settlement changing event.8 Recently, a number of payment received by a beneficiary or the uninsured pension plans have been Technical Revisions spouse of a beneficiary must be the terminated or reorganized. The We are revising paragraph (d) of 20 result of an employer’s or former termination or reorganization of an CFR 418.1230 and paragraphs (c)(2) and employer’s closure, bankruptcy, or uninsured pension plan does not qualify (3) of 20 CFR 418.1265 to reflect the reorganization. This change will allow a as a major life-changing event under our addition of new paragraph 418.1205(g), beneficiary to request that we base the current regulations. To ensure that which concerns the addition of receipt IRMAA on the MAGI from a more recent Medicare Part B beneficiaries who of certain settlements as life-changing tax year. experience a loss of income under these events, as discussed above. Section 418.1205(e) of our current circumstances can request new initial When will we start to use this rule? regulations provides that a reduction in determinations using a more recent tax the income of a beneficiary or the year, we are replacing ‘‘insured pension We will start to use this rule on the plan’’ with ‘‘employer’s pension plan’’ in date shown under DATES earlier in this 5 42 U.S.C. 1395r(i)(4)(C)(ii)(II). 20 CFR 418.1205(f). This language preamble. 6 20 CFR 418.1205. We are also inviting public comment 7 20 CFR 418.1210. 8 20 CFR 418.1205(f). on the changes made by this rule. We

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will consider any relevant comments we substantive effect on how we determine § 418.1205 What is a major life-changing receive. We will publish a final rule to what is a major life-changing event, we event? respond to those comments and to make find that it is unnecessary to delay the * * * * * any appropriate changes. effective date of those changes. (e) You or your spouse experiences a Accordingly, we are making this interim loss of income-producing property, Regulatory Procedures rule effective upon publication. provided the loss is not at the direction We follow the Administrative of you or your spouse (e.g., due to the Executive Order 12866 Procedure Act (APA) rulemaking sale or transfer of the property) and is procedures specified in 5 U.S.C. 553 We have consulted with the Office of not a result of the ordinary risk of when we develop regulations. Management and Budget (OMB) and investment. Examples of the type of Generally, the APA requires that an determined that this interim rule does property loss include, but are not agency provide prior notice and meet the criteria for a significant limited to: Loss of real property within opportunity for public comment before regulatory action under Executive Order a Presidentially or Gubernatorially- issuing a final regulation. The APA 12866. It was subject to OMB formal declared disaster area, destruction of provides exceptions to its notice and review. livestock or crops by natural disaster or public comment procedures when an disease, loss from real property due to agency finds good cause for dispensing Regulatory Flexibility Act arson, or loss of investment property as with such procedures as impracticable, We certify that this interim rule will a result of fraud or theft due to a unnecessary, or contrary to the public criminal act by a third party; 9 not have a significant economic impact interest. (f) You or your spouse experiences a We find that good cause exists for on a substantial number of small entities because it affects individuals only. scheduled cessation, termination, or proceeding without prior public notice reorganization of an employer’s pension and comment because any delay in Therefore, a regulatory flexibility analysis is not required under the plan; revising our regulations could (g) You or your spouse receives a Regulatory Flexibility Act, as amended. negatively affect the financial welfare of settlement from an employer or former our beneficiaries. This interim rule Paperwork Reduction Act employer because of the employer’s addresses, among other things, the closure, bankruptcy, or reorganization. unintended consequences of higher The Office of Management and Budget Medicare Part B premium burdens for (OMB) previously approved the new ■ 3. Amend § 418.1210 to revise beneficiaries who have lost their public reporting requirements posed by paragraph (b) to read as follows: pensions or suffered other deleterious these rules under a separate Information § 418.1210 What is not a major life- effects due to the economic recession. Collection Request (OMB No. 0960– changing event? Accordingly, we find that prior public 0735). We are therefore not seeking comment would be contrary to the OMB approval for these requirements * * * * * public interest. However, we are here under the Paperwork Reduction (b) Events that result in the loss of inviting public comment on the interim Act. dividend income because of the ordinary risk of investment. rule, and we will consider any (Catalog of Federal Domestic Assistance responsive comments we receive within Program Nos. 93.774 Medicare ■ 4. Amend § 418.1230 to revise 60 days of the publication of the interim Supplementary Medical Insurance; 96.002 paragraph (d) to read as follows: rule. Social Security—Retirement Insurance.) We also find good cause for § 418.1230 What is the effective date of an proceeding without prior public notice List of Subjects in 20 CFR Part 418 income-related monthly adjustment amount and comment regarding the technical initial determination that is based on a more Administrative practice and recent tax year? revisions we are making in 20 CFR procedure, Aged, Blind, Disability * * * * * 418.1205(e) and (f) and 20 CFR benefits, Public assistance programs, (d) Our initial determination will be 418.1255(e) and (f). These revisions Reporting and recordkeeping effective January 1 of the year following simply make the language defining each requirements, Supplemental Security the year you make your request, when life-changing event consistent and will Income (SSI), Medicare subsidies. have no substantive effect on the your modified adjusted gross income IRMAA program. Therefore, we find Dated: April 20, 2010. will not be significantly reduced as a that public comment is unnecessary Michael J. Astrue, result of one or more of the events regarding those changes. Commissioner of Social Security. described in § 418.1205(a) through (g) until the year following the year you In addition, for the reasons cited ■ For the reasons set out in the make your request. above, we also find good cause for preamble, we amend 20 CFR chapter III, dispensing with the 30-day delay in the ■ 5. Amend § 418.1255 to revise 10 part 418, subpart B as set forth below: effective date of this interim rule. paragraphs (e) and (f) and add paragraph Because unintended and extraordinary PART 418—MEDICARE SUBSIDIES (g) to read as follows: hardships to affected Medicare Part B beneficiaries and their families could Subpart B—[Amended] § 418.1255 What kind of evidence of a occur if we delay the effective date of major life-changing event will you need to this interim rule, we find that it is ■ 1. The authority citation for subpart B support your request for us to use a more contrary to the public interest to delay of part 418 continues to read as follows: recent tax year? the effective date of our rule changes. Authority: Secs. 702(a)(5) and 1839(i) of * * * * * Additionally, because the technical the Social Security Act (42 U.S.C. 902(a)(5) (e) If you or your spouse experiences revisions to 20 CFR 418.1205(e) and (f) and 1395r(i)). a loss of income-producing property, we and 20 CFR 418.1255(e) and (f) have no will require evidence documenting the ■ 2. Amend § 418.1205 to revise loss. Examples of acceptable evidence 9 5 U.S.C. 553(b)(B). paragraphs (e) and (f) and add paragraph include, but are not limited to, 10 See 5 U.S.C. 553(d)(3). (g) to read as follows: insurance claims or an insurance

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adjuster’s statement. If the claim of loss DEPARTMENT OF HOUSING AND Housing and Urban Development, 451 is due to criminal fraud or theft by a URBAN DEVELOPMENT 7th Street, SW., Room 10276, third party, we will also require proof of Washington, DC 20410–0500. HUD conviction for the fraud or theft, such as 24 CFR Parts 5, 84, and 85 advises that comments submitted by a court document. [Docket No. FR–5350–I–01] mail are subject to irradiation security procedures which may result in a delay (f) If you or your spouse experiences RIN 2501–AD50 of up to 10 days before receipt by the a scheduled cessation, termination, or HUD. As a result, HUD recommends reorganization of an employer’s pension Conforming Changes to Applicant that comments be submitted plan, we will require evidence Submission Requirements; electronically, if feasible. documenting the change in or loss of the Implementing Federal Financial Report 2. Electronic Submission of pension. An example of acceptable and Central Contractor Registration Comments. Interested persons may evidence includes, but is not limited to, Requirements submit comments electronically through a statement from your pension fund AGENCY: Office of the Secretary, HUD. the Federal eRulemaking Portal at administrator explaining the reduction ACTION: Interim rule. http://www.regulations.gov. HUD or termination of your benefits. strongly encourages commenters to (g) If you or your spouse receives a SUMMARY: This interim rule revises HUD submit comments electronically. settlement from an employer or former regulations to reference the new Electronic submission of comments employer because of the employer’s governmentwide Federal Financial allows the commenter maximum time to closure, bankruptcy, or reorganization, Report (FFR), approved by the Office of prepare and submit a comment, ensures timely receipt by HUD, and enables we will require evidence documenting Management and Budget (OMB). The purpose of the FFR is to consolidate HUD to make them immediately the settlement and the reason(s) for the requirements from the OMB issued available to the public. Comments settlement. An example of acceptable Standard Forms SF–269, SF–269A SF– submitted electronically through the evidence includes, but is not limited to, 272, and the SF–272A, into a single http://www.regulations.gov website can a letter from the former employer stating governmentwide form. The be viewed by other commenters and the settlement terms and how they affect consolidation provides recipients of interested members of the public. you or your spouse. HUD grants and cooperative agreements Commenters should follow the a standard format for reporting the instructions provided on that site to ■ 6. Amend § 418.1265 to revise financial status of their grants and submit comments electronically. paragraphs (c)(2) and (c)(3) to read as cooperative agreements and will assist follows: Note: To receive consideration as public in efforts to move to electronic grants comments, comments must be submitted § 418.1265 What kind of evidence of a management by reducing the variation through one of the two methods specified significant modified adjusted gross income and number of forms required for above. Again, all submissions must refer to the docket number and title of the rule. reduction will you need to support your reporting. In including the new FFR in request? its regulations, HUD revises its No Facsimile Comments. Facsimile regulations to remove references to SF– * * * * * (FAX) comments are not acceptable. 270 and SF–271, since they are no Public Inspection of Public (c) * * * longer in use. Comments. All properly submitted (2) If you experience one or more of This interim rule also codifies the comments and communications the events described in § 418.1205(d), requirement that applicants for HUD submitted to HUD will be available for (e), (f), or (g), you must provide assistance possess an active Central public inspection and copying between evidence of how the event(s) Contractor Registration (CCR). 8 a.m. and 5 p.m. weekdays at the above significantly reduced your modified Registration with CCR assists HUD in address. Due to security measures at the adjusted gross income, such as a collecting, validating, and storing HUD Headquarters building, an advance statement explaining any modified information in support of its grant appointment to review the public programs and assists in ensuring the adjusted gross income changes for the comments must be scheduled by calling accuracy of data placed on the tax year we used and a copy of your the Regulations Division at 202–402– USASpending.gov website. 3055 (this is not a toll-free number). filed Federal income tax return (if you DATES: Individuals with speech or hearing have filed one). Effective Date: August 16, 2010. Comment Due Date: September 13, impairments may access this number (3) If your spouse experiences one or 2010. via TTY by calling the Federal more of the events described in ADDRESSES: Interested persons are Information Relay Service, toll-free, at § 418.1205(d), (e), (f), or (g), you must invited to submit comments regarding 800–877–8339. Copies of all comments provide evidence of the resulting this rule to the Regulations Division, submitted are available for inspection significant reduction in your modified Office of General Counsel, Department and downloading at http:// adjusted gross income. The evidence of Housing and Urban Development, www.regulations.gov. requirements are described in paragraph 451 7th Street, SW., Room 10276, FOR FURTHER INFORMATION CONTACT: (c)(2) of this section. Washington, DC 20410–0500. Barbara Dorf, Director, Office of * * * * * Communications must refer to the above Departmental Grants Management and [FR Doc. 2010–17198 Filed 7–14–10; 8:45 am] docket number and title. There are two Oversight, Office of Administration, Department of Housing and Urban BILLING CODE 4191–02–P methods for submitting public comments. All submissions must refer Development, 451 7th Street, SW., to the above docket number and title. Room 3156, Washington, DC 20410– 1. Submission of Comments by Mail. 0500, telephone number 202–708–0667. Comments may be submitted by mail to Persons with hearing or speech the Regulations Division, Office of impairments may access this number General Counsel, Department of through TTY by calling the toll-free

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Federal Information Relay Service at CCR collects, validates, stores and issuing them for effect, in accordance 800–877–8339. disseminates data in support of agency with its own regulations on rulemaking SUPPLEMENTARY INFORMATION: missions, including Federal agency in 24 CFR part 10. HUD, however, does contract and assistance awards, and the provide in § 10.1 for exceptions from I. This Interim Rule electronic payment process. that general rule where the Department A. Federal Financial Report (FFR) CCR registration is applicable to finds good cause to omit advance notice procurements awarded in accordance and public participation. The good On April 8, 2003 (68 FR 17097), OMB with the Federal Acquisitions cause requirement is satisfied when the announced its intent to establish a new Regulations (FAR). The use of CCR as a prior public procedure is FFR. Consistent with the Federal central grantee repository was instituted ‘‘impracticable, unnecessary, or contrary Financial Assistance Management for competitive grant programs with the to the public interest.’’ The Department Improvement Act of 1999 (Pub. L. 106– launch in 2005 of the Grants.gov system. finds that a delay in the effectiveness of 107) and the goal of governmentwide Applicants for HUD competitive this interim rule in order to solicit prior grant streamlining efforts, the new FFR assistance should be familiar with the public comment is unnecessary. consolidates into a single report the CCR registration requirement, since this In accordance with the Paperwork current SF–269, Financial Status Report requirement has been included in the Reduction Act of 1995, OMB published (Long Form); SF–269A, Financial Status notices of funding availability (NOFAs) the FFR for comment on April 8, 2003 Report (Short Form); SF–272, Federal published by HUD over the last several (68 FR 17097). The April 8, 2003 Cash Transactions Report; and the SF– years (see e.g., 73 FR 79548, published publication generated nearly 200 272A, Federal Cash Transactions December 29, 2008; 72 FR 11434, comments from a wide range of Report. The use of the FFR provides a published March 13, 2007). recipients of Federal financial uniform, governmentwide format and This interim rule codifies the CCR assistance, including state and local reduces burden on grantees that are registration requirement by adding a government, non-profit entities, reporting using electronic systems by new § 5.1004. Accordingly, entities institutions of higher education, and reducing the number of forms to report. (private nonprofits, educational associations. These comments were The use of the FFR also provides for organizations, state and regional considered by OMB in developing the standard reporting period end dates and agencies, etc,) subject to § 5.1001 that FFR. The FFR has also been approved due dates for the submission of cash receive HUD assistance are required to by OMB, OMB has directed Federal management and financial information. register with CCR and have an active agencies to commence using this form, The FFR will simplify reporting CCR registration in order for HUD to and it is already being used by procedures for grantees and facilitate obligate funds and for an awardee to recipients of Federal assistance. uniformity in agencies’ grantmaking receive funds from HUD. HUD believes In addition, this interim rule would processes. that codifying the CCR registration require applicants and awardees of HUD On December 7, 2007 (72 FR 69248), requirement will facilitate applicant and financial assistance to register with CCR OMB published a Federal Register awardee use of a single public website and possess an active CCR registration. notice announcing the promulgation of which consolidates data on awards This is not a new requirement for the new FFR. This notice also directed made under various types of Federal applicants of HUD assistance. Rather, as that Federal grant-making agencies Financial Assistance, pursuant to the noted the requirement has existed for begin using the FFR not later than Federal Funding Accountability and several years through HUD’s NOFAs. September 30, 2008. Subsequently, on Transparency Act of 2006 Therefore, applicants and awardees for August 13, 2008 (73 FR 47246), OMB (Transparency Act) (Pub. L. 109–282) the bulk of HUD’s financial assistance published a notice that requires Federal (Transparency Act) and help ensure are familiar with the requirement and agencies to transition to the new form data quality for grantee information for already possess an active Central no later than October 1, 2009. In making the USASpending.gov website created Contractor Registration. this transition, OMB requested that in conformance with the requirements Although HUD has determined that agencies incorporate the requirement of the Transparency Act. good cause exists to publish this rule for into agency grant agreements and C. Removal of References to SF–270 and effect without prior solicitation of program regulations as necessary. public comment, the Department HUD regulations at 24 CFR parts 84 SF–271 recognizes the value and importance of and 85 reference the SF–269, SF–269A, HUD is also using this interim rule to public input in the rulemaking process. SF–272, and the SF–272A. This rule remove references to the SF–270, Accordingly, HUD is issuing these removes these references and substitutes Request for Advance or Reimbursement, regulatory amendments on an interim the FFR. This rule also amends §§ 84.52 and the SF–271, Outlay Report and basis and providing for a 60-day public and 85.41 to conform the reporting Request for Reimbursement for comment period. All comments will be requirements to those provided for by Construction Programs. The HUD considered in the development of the the FFR. electronic financial system does away final rule. with the need for the SF–270 and the B. Requirement for Central Contractor SF–271. Both of these forms were III. Findings and Certifications Registration initially referenced by OMB more than This interim rule also codifies the Executive Order 12866, Regulatory 30 years ago, and technological Planning and Review requirement that applicants for HUD innovations have made these forms assistance have an active registration in obsolete for HUD’s purposes. To This rule is not a significant the Central Contractor Registration acknowledge this, this interim rule regulatory action under section 3(f) of (CCR). CCR was established to facilitate removes references to SF–270 and SF– Executive Order 12866, Regulatory the Federal government’s compliance 271. Planning and Review, and it was not with the Prompt Payment Act (Pub. L. reviewed by the Office of Management 97–177) (31 U.S.C. 3901 et seq.) as II. Justification for Interim Rulemaking and Budget. This rule is not significant amended and is the primary registrant HUD generally publishes regulatory because it would conform HUD database for the Federal government. changes for public comment before regulations to refer to the FFR, remove

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outdated references to forms that are registration requirement that HUD 24 CFR Part 85 obsolete, and codify a requirement that grantees are already meeting. Therefore, Accounting, Grant programs, Indians, HUD has included for several years in the undersigned certifies that this rule Intergovernmental relations, Reporting its notices of funding availability. will not have a significant impact on a and recordkeeping requirements. Paperwork Reduction Act substantial number of small entities ■ Accordingly, for the reasons described within the meaning of the RFA. The information collection in the preamble, HUD amends 24 CFR requirements contained in this interim Notwithstanding HUD’s view that this parts 5, 84, and 85 as follows: rule have been submitted to the Office rule will not have a significant effect on PART 5—GENERAL HUD PROGRAM of Management and Budget (OMB) a substantial number of small entities, REQUIREMENTS; WAIVERS under the Paperwork Reduction Act of HUD specifically invites comments to 1995 (44 U.S.C. 3501–3520). In this rule that will meet HUD’s objectives ■ 1. The authority citation for 24 CFR accordance with the Paperwork as described in this preamble. part 5 continues to read as follows: Reduction Act, an agency may not Executive Order 13132, Federalism Authority: 42 U.S.C. 1437a, 1437c, 1437d, conduct or sponsor, and a person is not 1437f, 1437n, 3535(d); Sec. 327, Pub. L. 109– required to respond to, a collection of Executive Order 13132 (entitled 115, 119 Stat. 2936, and Sec. 607, Pub. L. information unless the collection ‘‘Federalism’’) prohibits an agency from 109–162, 119 Stat. 3051. displays a currently valid OMB control publishing any rule that has federalism number. The OMB control number for implications if the rule either imposes Subpart K—Application, Registration, the FFR is 0348–0061. substantial direct compliance costs on and Submission Requirements Environmental Impact state and local governments and is not ■ 2. Revise the heading of subpart K to This interim rule does not direct, required by statute, or the rule preempts read as set forth above. provide for assistance or loan and state law, unless the agency meets the ■ 3. Add § 5.1004 to read as follows: mortgage insurance for, or otherwise relevant requirements of section 6 of the § 5.1004 Central contractor registration. govern or regulate real property Executive Order. This interim rule does acquisition, disposition, leasing, not have federalism implications and Applicants for HUD financial rehabilitation, alteration, demolition, or does not impose substantial direct assistance that are subject to this new construction; or establish, revise, or compliance costs on state and local subpart are required to register with the provide for standards for construction or governments or preempt state law Central Contractor Registration (CCR) construction materials, manufactured within the meaning of the Executive and have an active registration in CCR housing, or occupancy. Accordingly, Order. in order for HUD to obligate funds and for an awardee to receive an award of under 24 CFR 50.19(c)(1), this rule is Unfunded Mandates Reform Act. categorically excluded from funds from HUD. environmental review under the Title II of the Unfunded Mandates PART 84—UNIFORM ADMINISTRATIVE National Environmental Policy Act of Reform Act of 1995 (UMRA) (12 U.S.C. REQUIREMENTS FOR GRANTS AND 1969 (42 U.S.C. 4321). 1531–1538) establishes requirements for AGREEMENTS WITH INSTITUTIONS Regulatory Flexibility Act Federal agencies to assess the effects of OF HIGHER EDUCATION, HOSPITALS, their regulatory actions on state, local, The Regulatory Flexibility Act (RFA) AND OTHER NON-PROFIT and tribal governments, and on the ORGANIZATIONS (5 U.S.C. 601 et seq.), generally requires private sector. This interim rule would an agency to conduct a regulatory not impose any Federal mandates on ■ 4. The authority citation for 24 CFR flexibility analysis of any rule subject to any state, local, or tribal governments, part 84 continues to read as follows: notice and comment rulemaking or on the private sector, within the requirements unless the agency certifies Authority: 42 U.S.C. 3535(d). meaning of UMRA. that the rule will not have a significant ■ 5. In § 84.22, revise the first sentence economic impact on a substantial List of Subjects of paragraph (d) and remove paragraph number of small entities. As noted (m) to read as follows: earlier in this preamble, this interim 24 CFR Part 5 § 84.22 Payment. rule conforms HUD regulations to Administrative practice and * * * * * requirements applicable to all grantees procedure, Aged, Claims, Crime, (d) Requests for Treasury check that are already in place, as a result of Government contracts, Grants programs- action previously taken by OMB, and advance payments shall be submitted housing and community development, small entities were provided the through electronic means determined by Individuals with disabilities, opportunity for comment in connection the authorizing HUD program, or on Intergovernmental relations, Loans with OMB’s publications. With respect forms as may be authorized by OMB. programs-housing and community to financial reporting, the interim rule *** development, Low and moderate streamlines the financial reporting * * * * * income housing, Mortgage insurance, requirement by replacing one form for ■ 6. Revise § 84.52 to read as follows: the several that have been used prior to Penalties, Pets, Public housing, Rent fiscal year 2010. As a result, the FFR subsidies, Reporting and recordkeeping § 84.52 Financial reporting. will reduce the burden on all entities, requirements, Social security, (a) The Federal financial report (FFR), including small entities, by simplifying Unemployment compensation, Wages. or such other form as may be approved the task of filing required financial 24 CFR Part 84 by OMB, is authorized for obtaining reports. Similarly, CCR registration has financial information from recipients. been required of applicants and grantees Accounting, colleges and universities, The applicability of the FFR form shall for HUD’s competitive programs to Grant programs, hospitals, Non-profit be determined by the appropriate HUD ensure the proper identity of applicants. organizations, Reporting and program, and the grantee will be This interim rule codifies the CCR recordkeeping requirements. notified of any program requirements in

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reference to the FFR upon receipt of the (f) When HUD needs additional § 85.41 Financial reporting. award. A HUD program may, where information or more frequent reports, (a) * * * appropriate, waive the use of the FFR the following shall be observed. (3) Grantees shall follow all for its grantees and require an (1) When additional information is applicable standard and supplemental alternative reporting system. needed to comply with legislative Federal agency instructions approved by (b) HUD shall prescribe whether the requirements or governmentwide OMB to the extent required under the FFR shall be on a cash or accrual basis. requirements, HUD shall issue Paperwork Reduction Act of 1980 for If HUD requires accrual information and instructions to require recipients to use in connection with forms specified the recipient’s accounting records are submit such information under the in paragraphs (b) and (c) of this section. not normally kept on the accrual basis, ‘‘Remarks’’ section of the reports or other *** the recipient shall not be required to means. * * * * * convert its accounting system, but shall (2) When HUD determines that a (b) Financial Status Report—(1) Form: develop such accrual information recipient’s accounting system does not Grantees will use the FFR to report the through best estimates based on an meet the standards in § 84.21, additional status of funds for all non-construction analysis of the documentation on hand. pertinent information to further monitor grants, for construction grants or grants awards may be obtained by written (c) HUD shall determine the which include both construction and notice to the recipient until such time frequency of the FFR for each project or non-construction activities as as the system is brought up to standard. program, considering the size and determined by HUD. HUD, in obtaining this information, complexity of the particular project or (2) Accounting basis. HUD shall shall comply with report clearance program. However, the report shall not prescribe whether the FFR shall be on requirements of 5 CFR part 1320. be required more frequently than a cash or accrual basis. If HUD requires (3) HUD may elect to accept the accrual information and the grantee’s quarterly or less frequently than identical information from the annually. The reporting period end accounting records are not normally recipients through a system to system kept on the accrual basis, the grantee dates shall be March 31, June 30, data interface as determined by HUD. September 30 or December 31. A final shall not be required to convert its FFR shall be required at the completion § 84.82 [Amended] accounting system but shall develop such accrual information through an of the award agreement and shall use ■ 7. In § 84.82, remove paragraph (c)(3). the end date of the project or grant analysis of the documentation on hand. period as the reporting end date. PART 85—ADMINISTRATIVE (3) HUD shall determine the frequency of the FFR for each project or (d) HUD requires recipients to submit REQUIREMENTS FOR GRANTS AND program, considering the size and the FFR no later than 30 days after the COOPERATIVE AGREEMENTS TO complexity of the particular project or end of each specified reporting period STATE, LOCAL AND FEDERALLY program. However, the report will not for quarterly and semi-annual reports, RECOGNIZED INDIAN TRIBAL be required more frequently than and 90 calendar days for annual reports. GOVERNMENTS quarterly or less frequently than Final reports shall be submitted no later annually. The reporting period end than 90 days after the project or grant ■ 8. The authority citation for 24 CFR dates shall be March 31, June 30, period end date. Extensions of reporting part 85 continues to read as follows: September 30 or December 31. A final due dates may be approved by HUD Authority: 42 U.S.C. 3535(d). FFR shall be required at the completion upon request of the recipient. HUD may ■ 9. In § 85.3, revise the definition of of the award agreement and shall use require awardees to submit the FFR ‘‘expenditure report’’ to read as follows: the end date of the project or grant electronically. Electronic submission period as the reporting end date. may be waived for cause in accordance § 85.3 Definitions. (4) HUD requires recipients to submit with HUD’s waiver policy in § 5.110 of * * * * * the FFR (original and two copies), not this title. Expenditure report means the Federal later than 30 days after the end of each (e) (1) When funds are advanced to financial report (FFR) or such other specified reporting period for quarterly recipients HUD shall use the FFR to financial reporting form as may be and semiannual reports and 90 days for monitor cash advanced to recipients and approved by the Office of Management annual reports. Final reports shall be to obtain disbursement information for and Budget. submitted no later than 90 days after the each agreement with the recipients. * * * * * expiration or termination of grant HUD may require forecasts of Federal ■ 10. Revise § 85.23(b) to read as support. cash requirements in the ‘‘Remarks’’ follows: (c) (1) For grants paid by Treasury section of the FFR and may require check advances or electronic transfer of recipients to report in the ‘‘Remarks’’ § 85.23 Period of availability of funds. funds, the grantee will submit the FFR, section the amount of cash advances * * * * * unless the terms of the award exempt received and retained in excess of three (b) Liquidation of obligations. A the grantee from this requirement or days and any interest earned on such grantee must liquidate all obligations proscribe an alternate method of cash advances. Recipients shall provide incurred under the award not later than financial reporting. HUD will use these short narrative explanations of actions 90 days after the end of the funding reports to monitor cash advanced to taken to reduce early drawdowns and period (or as specified in a program grantees and to obtain disbursement or excess balances. regulation) to coincide with the financial status information for each (2) Recipients shall be required to submission of the FFR. HUD may grant from grantees. The format of the submit not more than the original and extend this deadline at the request of FFR may be adapted as appropriate two copies of the FFR or submit the the grantee. when reporting is to be accomplished report electronically. HUD may require ■ 11. In § 85.41, revise the first sentence with the assistance of automatic data a quarterly report from recipients of paragraph (a)(3), revise paragraphs (b) processing equipment provided that the receiving advances totaling $1 million and (c), and remove paragraphs (d) and information to be submitted is not or more per year. (e), to read as follows: changed in substance. HUD may require

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forecasts of Federal cash requirements Guaranty Corporation, 1200 K Street, status. In comparison with the interest in the ‘‘Remarks’’ section of the report. NW., Washington, DC 20005, 202–326– assumptions in effect for July 2010, (2) Cash in hands of subgrantees. 4024. (TTY/TDD users may call the these interest assumptions represent a When considered necessary and feasible Federal relay service toll-free at 1–800– decrease of 0.25 percent in the HUD may require grantees to report the 877–8339 and ask to be connected to immediate annuity rate and are amount of cash advances in excess of 202–326–4024.) otherwise unchanged. For private-sector three days’ needs in the hands of their SUPPLEMENTARY INFORMATION: PBGC’s payments, the interest assumptions (set subgrantees or contractors and to regulations prescribe actuarial forth in Appendix C to part 4022) will provide short narrative explanations of assumptions—including interest be the same as those used by PBGC for actions taken by the grantee to reduce assumptions—for valuing and paying determining and paying lump sums (set the excess balances. plan benefits of terminating single- forth in Appendix B to part 4022). ■ 12. In § 85.50, revise paragraph (b)(2), employer plans covered by title IV of PBGC has determined that notice and remove paragraph (b)(3), and the Employee Retirement Income public comment on this amendment are redesignate paragraph (b)(4) as Security Act of 1974. The interest impracticable and contrary to the public paragraph (b)(3) and paragraph (b)(5) as assumptions are intended to reflect interest. This finding is based on the paragraph (b)(4) to read as follows: current conditions in the financial and need to determine and issue new § 85.50 Closeout. annuity markets. interest assumptions promptly so that These interest assumptions are found the assumptions can reflect current * * * * * in two PBGC regulations: the regulation market conditions as accurately as (b) * * * on Benefits Payable in Terminated possible. (2) The Federal financial report form, Single-Employer Plans (29 CFR Part as well as other forms prescribed by the Because of the need to provide 4022) and the regulation on Allocation program. immediate guidance for the valuation of Assets in Single-Employer Plans (29 and payment of benefits in plans with * * * * * CFR Part 4044). Assumptions under the valuation dates during August 2010, Dated: June 16, 2010. asset allocation regulation are updated PBGC finds that good cause exists for Shaun Donovan, quarterly; assumptions under the benefit making the assumptions set forth in this Secretary. payments regulation are updated amendment effective less than 30 days [FR Doc. 2010–17328 Filed 7–14–10; 8:45 am] monthly. This final rule updates only after publication. the assumptions under the benefit BILLING CODE 4210–67–P PBGC has determined that this action payments regulation. is not a ‘‘significant regulatory action’’ Two sets of interest assumptions are under the criteria set forth in Executive prescribed under the benefit payments PENSION BENEFIT GUARANTY Order 12866. regulation: (1) A set for PBGC to use to CORPORATION Because no general notice of proposed determine whether a benefit is payable rulemaking is required for this 29 CFR Part 4022 as a lump sum and to determine lump- amendment, the Regulatory Flexibility sum amounts to be paid by PBGC (found Act of 1980 does not apply. See 5 U.S.C. Benefits Payable in Terminated Single- in Appendix B to Part 4022), and (2) a 601(2). Employer Plans; Interest Assumptions set for private-sector pension for Valuing and Paying Benefits practitioners to refer to if they wish to List of Subjects in 29 CFR Part 4022 use lump-sum interest rates determined Employee benefit plans, Pension AGENCY: Pension Benefit Guaranty using PBGC’s historical methodology Corporation. insurance, Pensions, Reporting and (found in Appendix C to Part 4022). recordkeeping requirements. ACTION: Final rule. This amendment (1) adds to Appendix B to Part 4022 the interest ■ In consideration of the foregoing, 29 SUMMARY: Pension Benefit Guaranty assumptions for PBGC to use for its own CFR part 4022 is amended as follows: Corporation’s regulation on Benefits lump-sum payments in plans with Payable in Terminated Single-Employer valuation dates during August 2010, and PART 4022—BENEFITS PAYABLE IN Plans prescribes interest assumptions (2) adds to Appendix C to Part 4022 the TERMINATED SINGLE–EMPLOYER for valuing and paying certain benefits interest assumptions for private-sector PLANS under terminating single-employer pension practitioners to refer to if they ■ 1. The authority citation for part 4022 plans. This final rule amends the benefit wish to use lump-sum interest rates continues to read as follows: payments regulation to adopt interest determined using PBGC’s historical assumptions for plans with valuation methodology for valuation dates during Authority: 29 U.S.C. 1302, 1322, 1322b, dates in August 2010. Interest August 2010. 1341(c)(3)(D), and 1344. assumptions are also published on The interest assumptions that PBGC ■ 2. In appendix B to part 4022, Rate Set PBGC’s Web site (http://www.pbgc.gov). will use for its own lump-sum payments 202, as set forth below, is added to the DATES: Effective August 1, 2010. (set forth in Appendix B to part 4022) table. FOR FURTHER INFORMATION CONTACT: will be 2.25 percent for the period Catherine B. Klion, Manager, Regulatory during which a benefit is in pay status Appendix B to Part 4022—Lump Sum and Policy Division, Legislative and and 4.00 percent during any years Interest Rates for PBGC Payments Regulatory Department, Pension Benefit preceding the benefit’s placement in pay * * * * *

For plans with a valuation date Immediate annuity Deferred annuities Rate set rate (percent) On or after Before (percent) i1 i2 i3 n1 n2

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For plans with a valuation date Immediate annuity Deferred annuities Rate set rate (percent) On or after Before (percent) i1 i2 i3 n1 n2

******* 202 8–1–10 9–1–10 2.25 4.00 4.00 4.00 7 8

■ 3. In appendix C to part 4022, Rate Set Appendix C to Part 4022—Lump Sum 202, as set forth below, is added to the Interest Rates for Private-Sector table. Payments

For plans with a valuation date Immediate Deferred annuities Rate set annuity (percent) On or after Before rate (percent) i1 i2 i3 n1 n2

******* 202 8–1–10 9–1–10 2.25 4.00 4.00 4.00 7 8

Issued in Washington, DC, on this 7th day 6. On the same page, in the second requested for Channel 284A at of July 2010. column, under the DATES section, in the Kingsland, notification has not been Vincent K. Snowbarger, first bulleted paragraph in the column, received. If a construction permit is Acting Director, Pension Benefit Guaranty in the second line, ‘‘July 12, 2010’’ granted prior to the receipt of formal Corporation. should read ‘‘July 13, 2010’’. concurrence in the allotment by the [FR Doc. 2010–17200 Filed 7–14–10; 8:45 am] 7. On page 39851, in the second Mexican government, the construction BILLING CODE 7709–01–P column, in the sixth line from the permit will include the following bottom, ‘‘July 12, 2010’’ should read condition: ‘‘Operation with the facilities ‘‘July 13, 2010’’. specified for Kingsland herein is subject DEPARTMENT OF VETERANS 8. On the same page, in the third to modification, suspension or, AFFAIRS column, in the 15th line from the top, termination without right to hearing, if ‘‘July 12, 2010’’ should read ‘‘July 13, found by the Commission to be 38 CFR Part 3 2010’’. necessary in order to conform to the RIN 2900–AN32 9. On page 39852, in the third 1992 USA–Mexico FM Broadcast column, in the file line, the file date ‘‘7– Agreement.’’ 9–10’’ is corrected to read ‘‘7–12–10’’. Stressor Determinations for DATES: Effective August 12, 2010. Posttraumatic Stress Disorder [FR Doc. C1–2010–16885 Filed 7–14–10; 8:45 am] ADDRESSES: Federal Communications Correction BILLING CODE 1505–01–D Commission, 445 12th Street, SW, Washington, DC 20554. In rule document 2010–16885 beginning on page 39843 in the issue of FOR FURTHER INFORMATION CONTACT: FEDERAL COMMUNICATIONS Rolanda F. Smith, Media Bureau, (202) Tuesday, July 13, 2010 make the COMMISSION following corrections: 418–2180. 1. On page 39843, in the first column, 47 CFR Part 73 SUPPLEMENTARY INFORMATION: This is a under the DATES section, in the second summary of the Commission’s Report line, ‘‘July 12, 2010’’ should read ‘‘July [DA 10–1146; MB Docket No. 09–180; RM– and Order, MB Docket No. 09–180, 11569; RM–11570] 13, 2010’’. adopted June 25, 2010, and released 2. On the same page, in the same FM TABLE OF ALLOTMENTS, June 28, 2010. The full text of this column, under the DATES section, in the Kingsland, Texas Commission document is available for first bulleted paragraph, in the first and inspection and copying during normal second lines, ‘‘July 12, 2010’’ should AGENCY: Federal Communications business hours in the FCC Reference read ‘‘July 13, 2010’’. Commission Information Center (Room CY–A257), 3. On the same page, in the same ACTION: Final rule. 445 12th Street, SW., Washington, DC. column, under the DATES section, in the The complete text of this decision second bulleted paragraph, in the first SUMMARY: The Audio Division grants a may also be purchased from the and second lines, ‘‘July 12, 2010’’ should Petition for Rule Making issued at the Commission’s copy contractor, Best read ‘‘July 13, 2010’’. request of Katherine Pyeatt, proposing Copy and Printing, Inc., 445 12th Street, 4. On the same page, in the same the allotment of Channel 284A at SW, Room CY–B402, Washington, DC column, under the DATES section, in the Kingsland, Texas, as its first local aural 20554, 800–378–3160 or via the third bulleted paragraph, in the third transmission service. The reference company’s website, . 13, 2010’’. Kingsland are 30–40–03 NL and 98–28– The Commission will send a copy of 5. On the same page, in the same 29 WL, located 3.5 kilometers (2.2 this Report and Order in a report to be column, under the DATES section, in the miles) west of Kingsland. Kingsland is sent to Congress and the Government fourth bulleted paragraph, in the second located within 320 kilometers (199 Accountability Office pursuant to the line, ‘‘July 12, 2010’’ should read ‘‘July miles) of the U.S.–Mexican border. Congressional Review Act, see 5 U.S.C. 13, 2010’’. Although concurrence has been § 801(a)(1)(A).

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This document does not contain Company, requesting the deletion of ■ As stated in the preamble, the Federal proposed information collection Channel 244C2 at Maupin, Oregon. We Communications Commission amends requirements subject to the Paperwork are deleting Channel 244C2 at Maupin 47 CFR part 73 as follows: Reduction Act of 1995, Public Law 104– because there is no other expression of 13. In addition, therefore, it does not interest in the vacant channel. It is PART 73—RADIO BROADCAST contain any proposed information Commission policy to refrain from SERVICES collection burden ‘‘for small business maintaining an allotment were there are concerns with fewer than 25 no bona fide expressions of interest. ■ 1. The authority citation for part 73 continues to read as follows: employees,’’ pursuant to the Small DATES: Effective August 12, 2010. Business Paperwork Relief Act of 2002, Authority: 47 U.S.C. 154, 303, 334, Public Law 107–198, see 44 U.S.C. ADDRESSES: Federal Communications 336. 3506(c)(4). Commission, 445 12th Street, SW, Provisions of the Regulatory Washington, DC 20554. § 73.202 [Amended] Flexibility Act of 1980 do not apply to FOR FURTHER INFORMATION CONTACT: ■ 2. Section 73.202(b), the Table of FM this proceeding. Rolanda F. Smith, Media Bureau, (202) Allotments under Oregon, is amended People with Disabilities: To request 418–2180. by removing Maupin, Channel 244C2. materials in accessible formats for SUPPLEMENTARY INFORMATION: This is a people with disabilities (Braille, large Federal Communications Commission. summary of the Commission’s John A. Karousos, print, electronic files, audio format), Memorandum Opinion and Order, MB send an e–mail to [email protected] or call Assistant Chief, Audio Division, Media Docket No. 09–130, adopted June 25, Bureau. the Consumer & Government Affairs 2010, and released June 28, 2010. The Bureau at 202–418–0530 (voice) , 202– full text of this Commission document [FR Doc. 2010–17226 Filed 7–14–10; 8:45 am] 418–0432 (tty). is available for inspection and copying BILLING CODE 6712–01–S List of Subjects in 47 CFR Part 73 during normal business hours in the Radio, Radio broadcasting. FCC Reference Information Center (Room CY–A257), 445 12th Street, SW., ■ As stated in the preamble, the Federal Washington, DC. GENERAL SERVICES Communications Commission amends ADMINISTRATION The complete text of this decision 47 CFR part 73 as follows: may also be purchased from the 48 CFR Parts 516 and 552 PART 73—RADIO BROADCAST Commission’s copy contractor, Best SERVICES Copy and Printing, Inc., 445 12th Street, SW, Room CY–B402, Washington, DC [GSAR Amendment 2010–03; GSAR Case 2006–G504 (Change 46) Docket 2008–0007; ■ 1. The authority citation for part 73 20554, 800–378–3160 or via the Sequence 12] continues to read as follows: company’s website, . RIN 3090–AI58 336. The Commission will send a copy of this Memorandum Opinion and Order § 73.202 [Amended] General Services Administration in a report to be sent to Congress and Acquisition Regulation; Rewrite of ■ 2. Section 73.202(b), the Table of FM the Government Accountability Office GSAR Part 516, Types of Contracts Allotments under Texas, is amended by pursuant to the Congressional Review adding Kingsland, Channel 284A. Act, see 5 U.S.C. 801(a)(1)(A). AGENCIES: Office of Acquisition Policy, Federal Communications Commission. This document does not contain General Services Administration (GSA). John A. Karousos, proposed information collection ACTION: Final rule. Assistant Chief, requirements subject to the Paperwork Reduction Act of 1995, Public Law 104– Audio Division, SUMMARY: The General Services 13. In addition, therefore, it does not Media Bureau. Administration (GSA) is amending the contain any proposed information General Services Administration [FR Doc. 2010–17225 Filed 7–14–10; 8:45 am] collection burden ‘‘for small business Acquisition Regulation (GSAR) to BILLING CODE 6712–01–S concerns with fewer than 25 update GSAR Part 516, Types of employees,’’ pursuant to the Small Contracts. GSAR part 516 has been Business Paperwork Relief Act of 2002, revised to add and/or clarify policy FEDERAL COMMUNICATIONS Public Law 107–198, see 44 U.S.C. pertaining to requirements for types of COMMISSION 3506(c)(4). contracts. Provisions of the Regulatory 47 CFR Part 73 DATES: Effective Date: August 16, 2010. Flexibility Act of 1980 do not apply to [DA 10–1148; MB Docket No. 09–130; RM– this proceeding. FOR FURTHER INFORMATION CONTACT: For 11538] People with Disabilities: To request clarification of content, contact Mr. materials in accessible formats for Warren J. Blankenship, Procurement FM Table of Allotments, Maupin, people with disabilities (Braille, large Analyst, at (202) 501–1900. For Oregon print, electronic files, audio format), information pertaining to status or publication schedules, contact the AGENCY: Federal Communications send an e–mail to [email protected] or call Regulatory Secretariat (MVCB), Room Commission the Consumer & Government Affairs 4041, 1800 F Street, NW., Washington, ACTION: Final rule. Bureau at 202–418–0530 (voice) , 202– 418–0432 (tty). DC, 20405, (202) 501–4755. Please cite SUMMARY: Amendment 2010–03, GSAR Case 2006– The Audio Division grants the List of Subjects in 47 CFR Part 73 Petition for Reconsideration filed on G504 (Change 46). behalf of Maupin Broadcasting Radio, Radio broadcasting. SUPPLEMENTARY INFORMATION:

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A. Background Letter Contracts. Comment: The next commenter noted The GSAM Rewrite and Project and that GSA should require contracting In the final rule, these four subparts Process officers to include the fixed–price basis are retained. Additionally, other for the requirements (e.g., performance This rule is part of the GSA important changes include the addition period, man–hours), in a solicitation/ Acquisition Manual (GSAM) Rewrite of the verbiage ‘‘Additional’’ at the request for quotation if it is to be Project to revise the regulation in order beginning of the title to GSAR 516.603– awarded and reported as a fixed–price to maintain consistency with the 70, Limitations on the use of letter contract. In other words, the GSAM Federal Acquisition Regulation (FAR), contracts for architect–engineer (A–E) should forbid contracting officers from update regulations, and implement services and the addition of the verbiage procuring or reporting the action as a streamlined and innovative acquisition ‘‘under the PBS Design Excellence fixed–price contract award. procedures. The GSAM incorporates the Program’’ added at the end of the title; Response: The team does not concur GSAR as well as internal agency revision of paragraph (a) in GSAR with the commenter. Though the team acquisition policy. 516.603–70 to clarify that a complete concurs with the intent of the comment, The GSA published an Advance price proposal is required prior to the comment has more to do with Notice of Proposed Rulemaking (ANPR) definitization of a contract in coding and reporting of contract types. in the Federal Register at 71 FR 7910 on accordance with FAR 52.216–25; Thus, this is not appropriate for this February 15, 2006, with a request for removal of GSAR 516.603–70 from GSAR part. The use of time–and– comments on the entire GSAM. As a regulatory to non–regulatory because it management (T&M)/labor–hour vs. result, six comments were received on provides guidance to the contracting fixed–price contracts is adequately GSAR part 516. In addition, applicable officer; and revisions to proposed GSAR covered in FAR sections 16.601, 16.602, statutes, GSA Acquisition Letters, 552.216–74, Task–Order and Delivery– and 16.202–2, respectively. Federal Acquisition Service (FAS) Order Ombudsman, to clarify the Comment: The next commenter noted (formerly the Federal Supply Service Ombudsman’s role and responsibilities, that the GSAM should prohibit GSA (FSS)) and Public Building Service as well as, to provide contact contracting officers from unilaterally (PBS) Acquisition Letters, and GSA information. reducing any hours or contract price on delegations of authority were Discussion of Comments GSAR subpart 516.6 not–to–exceed considered in developing the initial There were six public comments contracts, or de–obligating awarded draft. Prior to publication of a proposed received in response to the ANPR funds without a bilateral supplemental rule, there was extensive internal review published in the Federal Register at 71 agreement. It may be more appropriate and comment. FR 7910 on February 15, 2006. A to address this in GSAR part 543, but A proposed rule for GSAR part 516 proposed rule was published in the the violations seem to occur only on was published in the Federal Register at Federal Register at 74 FR 4596 on July not–to–exceed (T&M/labor–hour) 73 FR 39275 on July 9, 2008. The public contracts that are being awarded and 9, 2008. The comment period closed comment period for GSAR part 516 reported by GSA contracting officers as September 8, 2008, with 11 comments closed on September 8, 2008. A total of fixed–price contracts. received. 11 comments were received by the close Response: The team concurs with the Comment: One commenter noted that of the public comment period. commenter; however, proper placement The proposed rule aligned GSAR part the rule is unnecessarily broad in scope. of the referenced action should be made 516 to the structure of FAR part 16; It would relax requirements for the use in GSAR Part 543, Contract revised the prescriptions for clauses of sinking lines that are already in place Modifications. included in GSAR 516.203–4, Contract and being used by many New England Comment: The next commenter noted clauses; and GSAR 516.506, Solicitation lobster fisherman. Moreover, the that GSA should consider adding the Provisions and Contract Clauses; and proposed rule would leave no word ‘‘Additional’’ at the beginning of made changes to the title and protections in place for whales during the GSAR 516.603–70, Limitations on numbering of GSAR 516.603–3, the delay, except for the requirement to the use of letter contracts for architect– Limitations. Additionally, the use weak links. The National Marine engineer (A–E) services. This could associated clauses located in GSAR Fisheries Service (NMFS) has serve as a simple reminder that there are 552.216 were amended to: relocate determined that weak links alone are other ‘‘limitations’’ that must be GSAR 552.216–70, Economic Price inadequate to prevent entanglements of considered in accordance with FAR Adjustment—FSS Multiple Award whales. 16.603–3. In particular, the vast majority Schedule Contracts, to GSAR 552.238; Response: The team does not concur of contracting officers fail to obtain the retain and revise GSAR 552.216–71, with the commenter. This comment had written determination from the Head of Economic Price Adjustment—Special no relevance to the case therefore, no the Contracting Activity (HCA), or Order Program Contracts, revise GSAR further action was necessary. designee, that ‘‘no other contract is 552.216–72, Placement of Orders; make Comment: The next commenter noted suitable.’’ minor edits to GSAR 552.216–73, that GSA needs to remind contracting Response: The team concurs with the Ordering information; and include a officers under GSAR subpart 516.2 that, commenter. The text has been revised new GSAR 552.216–74, Task–Order and in order for a contract to be procured on accordingly. Delivery–Order Ombudsman. a firm fixed–price basis, the solicitation Comment: The next commenter noted The following subparts were retained: must be based on reasonably definite that restriction placed on contractors to functional or detailed specification submit a ‘‘price proposal before award’’ when the contracting officer can Subpart Number Subpart Title of a letter contract, at FAR 16.603–3(c), establish fair and reasonable prices at requires contracting officers to include 516.2 Fixed–Price Contracts. the outset. in the mandated clause at FAR 52.216– 516.4 Incentive Contracts. 516.5 Indefinite-Delivery Response: The team does not concur 25 a ‘‘definitization schedule’’ including Contracts. with the commenter. The team reviewed ‘‘(1) dates for submission of the 516.6 Time-and-Materials, FAR subpart 16.2 and found that this contractor price proposal.’’ Similarly, Labor-Hour, and topic was adequately covered. the FAR clause 52.216–25 itself

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includes notes to the contracting officer Delivery/Indefinite Quantity (ID/IQ) Response: The team concurs with the to insert ‘‘dates for submission of contracts, consistent with the commenter. As such, the team has proposal.’’ Isn’t this requirement procedures in the contract.’’ revised the clause to conform to the inconsistent with the flexibilities Response: The team concurs with the commenter’s concerns regarding the demanded throughout the FAR, commenter. The text has been revised to GSA Ombudsman’s authority and to especially in FAR part 1, in addition to incorporate the commenter’s suggested outline the exact designation of the GSA the FAR 16.6 regulations? language for clarification. Ombudsman, inclusive of contact Response: The team does not concur Comment: The next commenter noted information. with the commenter. A full proposal is that the proposed clause GSAR This is not a significant regulatory required prior to definitization in 552.216–74, Task–Order and Delivery– action and, therefore, was not subject to accordance with FAR 52.216–25. Order Ombudsman, is not clear, as review under Section 6(b) of Executive Paragraph (a) of GSAR 516.603–70 has written, as to whether a contractor with Order 12866, Regulatory Planning and been revised for clarification of this a complaint should go through the Review, dated September 30, 1993. This point. contracting officer to reach the rule is not a major rule under 5 U.S.C. Comment: The next commenter noted Ombudsman (with a copy to the 804. a concern with the prohibition placed contracting officer), or whether a on contracting officers to ‘‘not authorize contractor could do either. The B. Regulatory Flexibility Act the A–E to begin the design effort before commenter suggests adding the The General Services Administration the letter contract is definitized.’’ The following: ‘‘Written complaints shall be certifies that this final rule will not have commenter feels that this may defeat the submitted to the Ombudsman, with a a significant economic impact on a whole purpose of a letter contract copy to the Contracting Officer.’’ substantial number of small entities which, according to FAR 16.603–1, is to Response: The team concurs with the within the meaning of the Regulatory authorize ‘‘the contractor to begin commenter. The text has been revised to Flexibility Act, 5 U.S.C. 601, et seq., immediately to perform the services. If incorporate the commenter’s suggested because the revisions are not considered this is so, then the determination should language for clarification. substantive. The revisions only update support any decision to not award a Comment: The next commenter noted and reorganize existing coverage. letter contract if contracting officers that GSAR 552.216–74, Task–Order and comply with FAR 16.603–3. Therefore, Delivery–Order Ombudsman, is not C. Paperwork Reduction Act the commenter’s recommendation is to clear as to whether the Ombudsman, The Paperwork Reduction Act does delete GSAR 516.603–70 in its entirety should he or she find that fair apply; however, these changes do not from the GSAM/GSAR. Alternatively, opportunity is not being provided to a impose additional information GSA should consider incorporating contractor, is going to direct the collection requirements to the oversight requirements into this section contracting activity to provide fair paperwork burden previously approved to review all determinations that opportunity in the future; is going to under OMB Numbers 3090–0243 and authorize letter contracts to ensure direct that an order be withdrawn from 3090–0248. decisions are being made appropriately. the firm that received it; or change the The GSA should also consider auditing decision of the acquisition team (if such List of Subjects in 48 CFR Parts 516 and all unilateral/administrative an order has not yet been placed). 552 modifications that involve any change Although, this information does not Government procurement. in funding/costs. need to go into the clause, the GSAR Dated: May 6, 2010. Response: The team does not concur should spell out the actual role of the Rodney P. Lantier, with the commenter. The team will Ombudsman so that acquisition teams retain GSAR 516.603–70 because it are aware. Acting Senior Procurement Executive, Office Response: The team partially concurs of Acquisition Policy, General Services speaks to those services that can be Administration. performed outside of the actual design with the commenter. The Ombudsman’s ■ effort. This section has been revised to jurisdiction covers all actions as they Therefore, GSA amends 48 CFR parts pertain to task– and delivery–order 516 and 552 as set forth below: clarify that only those services ■ independent of the design effort can actions. As such, the team more 1. The authority citation for 48 CFR commence without definitization. appropriately revised GSAR Subpart parts 516 and 552 continues to read as Otherwise, the contracting officer shall 516.5, Indefinite–Delivery Contracts, to follows: not commence the design effort until add a new section GSAR 516.505, Task– Authority: 40 U.S.C. 121(c). definitization of the contract. Order and Delivery–Order Ombudsman, Comment: The next commenter noted to outline this in paragraph (b). PART 516—TYPES OF CONTRACTS that the proposed clause GSAR Additionally, since this is being ■ 2. Revise section 516.203–4 to read as 552.216–74, Task–Order and Delivery– directed to contracting officers, it was follows: Order Ombudsman, allows GSA to added to the non–regulatory portion of comply with FAR 16.505(b)(5), which this subpart. 516.203–4 Contract clauses. requires each agency to designate such Comment: The next two commenters (a) Special Order Program Contracts. an Ombudsman. However, the clause, as noted that the proposed clause GSAR In multiyear solicitations and contracts, written, is imprecise and could be 552.216–74, Task–Order and Delivery– after making the determination required confusing to contractors and GSA Order Ombudsman, as written, is too by FAR 16.203–3, use 552.216–71, acquisition teams. The commenter broad in nature when it states ‘‘The GSA Economic Price Adjustment Special suggests adding the following: ‘‘GSA has Ombudsman will exercise jurisdiction Order Program Contracts, or a clause designated a Task–Order and Delivery– on any matters pertaining to ID/IQ prepared as authorized in paragraph Order Ombudsman who will review contracts awarded by GSA.’’ The (a)(3) of this subsection. complaints from contractors and ensure commenters recommend that the first (1) If the contract includes one or that they are afforded a fair opportunity sentence be deleted in its entirety and more options to extend the term of the for consideration in the award of task or that the clause sets forth who actually contract, use the clause with its delivery orders under Indefinite is designated as Ombudsman. Alternate I or a clause substantially the

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same as 552.216–71 with its Alternate I the date of the clause, and the first computer EDI. If computer–to–computer suitably modified. sentence of paragraph (b); the date of EDI is not possible, FAS will use an (2) In a contract requiring a minimum Alternate I, the Alternate I introductory alternative EDI method allowing the adjustment before the price adjustment text, and the introductory text of Contractor to receive orders by facsimile mechanism is effectuated, use the basic Alternate I (b); the date of Alternate II, transmission. Subject to the Contractor’s clause with Alternate II or with the Alternate II introductory text, and agreement, other agencies may place Alternate I and Alternate II. Alternate II paragraph (g) to read as orders by EDI. (3) If the Producer Price Index is not follows: * * * * * an appropriate indicator for price (g) The basic content and format of adjustment, modify the clause to use an 552.216–71 Economic Price Adjustment— Special Order Program Contracts. the TPA will be provided by: General alternate indicator for adjusting prices. Services Administration, Office of the As prescribed in 516.203–4(a), insert Similarly, if other aspects of 552.216–71 Chief Information Officer (QI), 2100 are not appropriate, use an alternate the following clause: ECONOMIC PRICE ADJUSTMENT— Crystal Drive, Arlington, VA 22202, clause following established procedures. Telephone: (703) 605–9444. (b) Adjustments based on cost indexes SPECIAL ORDER PROGRAM CONTRACTS (AUG 2010) Alternate I. (AUG 2010). As of labor or material. (1) If the prescribed in 516.506(a), substitute the contracting officer decides to provide * * * * * (b) During the term of the contract, the following paragraphs (a), (b), (c), and (d) for adjustments based on cost indexes of for paragraphs (a), (b), (c), and (d) of the labor or material, prepare a clause that award price may be adjusted once during each 12–month period upward basic clause: defines each of the following elements: (a) All delivery orders (orders) under or downward. However, if an upward (i) The type of labor and/or material this contract will be placed by the adjustment, a maximum of subject to adjustment; General Services Administration’s lll*lll percent shall apply. * (ii) The labor rates, including any Federal Acquisition Service (FAS). * * ** fringe benefits and/or unit prices of * * * * * * materials that may be increased or * * * * * Alternate I. (AUG 2010). As decreased; ■ 7. Amend section 552.216–73 by— (iii) The index(es) that will be used to prescribed in 516.203–4(a)(1) and (2), ■ a. Revising the introductory paragraph measure changes in price levels and the substitute the following paragraphs (b), and the date of the clause; base period or reference point from (e), and (f) for paragraphs (b), (e), and (f) ■ b. Removing from paragraph (a) which changes will be measured; and of the basic clause: ‘‘Federal Supply Service (FSS)’’ and (iv) The period during which the (b) Once during each 12–month adding ‘‘Federal Acquisition Service price(s) will be subject to adjustment. period, the contract price may be (FAS)’’ in its place; (2) The contracting director must adjusted upward or downward a ■ c. Adding paragraph (e); approve use of this clause. maximum of lll*lll percent. ■ d. Removing from Alternate I ■ 3. Revise section 516.506 to read as * * * * * ‘‘516.506(e)’’ and adding ‘‘516.506(c)’’ in follows: Alternate II. (AUG 2010). As its place; and prescribed in 516.203–4(a)(2), add the ■ e. Removing Alternate II. 516.506 Solicitation provisions and following paragraph (g) to the basic ■ The revised and added text reads as contract clauses. clause. follows: (a) In solicitations and contracts for (g) No price adjustment will be made Special Order Program items, when the unless the percentage change in the PPI 552.216–73 Ordering Information. contract authorizes FAS and other is at least lll*lll percent. As prescribed in 516.506(c), insert the activities to issue delivery or task The Contracting Officer should insert following provision: orders, insert the clause at 552.216–72, a lower percent than the maximum ORDERING INFORMATION (AUG 2010) Placement of Orders. If only FAS will percentage stated in paragraph (b) of the * * * * * issue delivery or task orders, insert the clause. (e) Offerors marketing through dealers clause with its Alternate I. ■ 6. Amend section 552.216–72 by— are requested to indicate below whether (b) In solicitations and contracts for ■ a. Revising the introductory text, the those dealers will be participating in the GSA awarded ID/IQ contracts, insert date of the clause, and paragraphs (c) proposed contract. clause 552.216–74, Task–Order and and (g); Yes ( ) No ( ) Delivery–Order Ombudsman. ■ b. Revising the date of Alternate I, the If ‘‘yes’’ is checked, ordering (c) If the clause at 552.216–72 is Alternate I introductory text, and the information to be inserted above shall prescribed, insert the provision at first sentence of Alternate I paragraph reflect that in addition to offeror’s name, 552.216–73, Ordering Information, in (a); address, and facsimile transmission solicitations for Special Order Program ■ c. Removing from Alternate I telephone number, orders can be items and in other FAS Program paragraphs (c) and (d) the word ‘‘FSS’’ addressed to the offeror’s name, c/o solicitations. and adding ‘‘FAS’’ in its place; and nearest local dealer. In this event, two ■ d. Removing Alternates II, III, and IV. copies of a list of participating dealers Subpart 516.6 [Removed] ■ The revised text reads as follows: shall accompany this offer, and shall also be included in Contractor’s Federal ■ 4. Remove subpart 516.6, consisting of 552.216–72 Placement of Orders. Supply Schedule pricelist. sections 516.603 and 516.603-3. As prescribed in 516.506(a), insert the * * * * * PART 552—SOLICITATION following clause: ■ 8. Add section 552.216–74 to read as PLACEMENT OF ORDERS (AUG 2010) PROVISIONS AND CONTRACT follows: CLAUSES * * * * * (c) If the Contractor agrees, General 552.216–74 Task–Order and Delivery– ■ 5. Amend section 552.216–71 by Services Administration’s Federal Order Ombudsman. revising the section heading, the Acquisition Service (FAS) will place all As prescribed in 516.506(b), insert the introductory text, the clause heading, orders by EDI using computer–to– following clause:

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TASK–ORDER AND DELIVERY–ORDER DATES: Effective Date: This rule is instructions under the FAQs tab on the OMBUDSMAN (AUG 2010) effective July 15, 2010. home page. GSA has designated a Task–Order and Comments Due Date: Comments must II. Background Delivery–Order Ombudsman who will reach the Department of Homeland review complaints from contractors and Security, Office of the Chief The U.S. Troop Readiness, Veterans’ ensure that they are afforded a fair Procurement Officer, Acquisition Policy Care, Katrina Recovery, and Iraq opportunity for consideration in the and Legislation, on or before August 16, Accountability Appropriations Act, award of task or delivery orders under 2010. 2007, Public Law 110–28, section 6405, Indefinite Delivery/Indefinite Quantity ADDRESSES: Please submit written 121 Stat. 112, 176 (2007) (codified as 6 (ID/IQ) contracts, consistent with the comments, identified by agency name U.S.C. 396; hereinafter ‘‘Section 396’’), procedures in the contract. Written and docket number DHS–2009–0006, by limits firms that can serve as lead complaints shall be submitted to the one of the following methods: system integrators on DHS acquisitions Ombudsman, with a copy to the (1) Federal eRulemaking Portal: of major systems. Such contractors may Contracting Officer. http://www.regulations.gov. To submit have no direct financial interest in the In the case that the contractor is not comments, follow instructions on development or construction of any satisfied with the resolution of the www.regulations.gov and use docket individual system or element of any complaint by the GSA Task–Order and number DHS–2009–0006. system of systems they would integrate, Delivery–Order Ombudsman, the (2) By mail to the Department of unless one of the stated exceptions has contractor may follow the procedures Homeland Security, Office of the Chief been satisfied. outlined in subpart 33.1. Procurement Officer, Acquisition Policy One exception applies when the The GSA Ombudsman is the Director, and Legislation, ATTN: Timothy J. contractor is selected by a subcontractor Office of Acquisition Integrity located Frank, 245 Murray Drive SW., STOP as a lower-tier subcontractor, through a at: General Services Administration 0415, Washington, DC 20528–0415. process over which the contractor had (GSA), Office of Governmentwide Policy FOR FURTHER INFORMATION CONTACT: no control, to develop or construct an (OGP), Office of Acquisition Policy Timothy J. Frank, Senior Procurement individual system or element of any (MV), Acquisition Integrity Division Analyst, at (202) 447–5252 for system of systems the contractor would (MVA), 1800 F Street, NW., Room 4014, clarification of content. Please cite integrate. The other exception applies Washington, D.C. 20405, Telephone: HSAR Case 2009–003. where the lead system integrator was (202) 219–3454, Fax: (202) 219–3615, E- selected using competitive procedures, SUPPLEMENTARY INFORMATION: DHS takes appropriate steps to prevent mail:[email protected]. I. Request for Comments [FR Doc. 2010–17140 Filed 7–14–10; 8:45 am] II. Background any organizational conflicts of interest BILLING CODE 6820–61–S III. Discussion of Interim Rule in the selection process, and the IV. Regulatory Analyses Secretary of Homeland Security certifies A. Executive Order 12866 Assessment these facts to various committees in DEPARTMENT OF HOMELAND B. Determination To Issue an Interim Rule Congress. SECURITY C. Regulatory Flexibility Act Section 396 also requires DHS to D. Paperwork Reduction Act update its acquisition regulations and to 48 CFR Parts 3002, 3007, 3009, 3016, E. National Environmental Policy Act include a definition of ‘‘lead system 3034, 3035, and 3052 I. Request for Comments integrators’’ modeled after that used by the Department of Defense and a [Docket No. DHS–2009–0006] Interested persons are invited to specification of various types of participate in this rulemaking by RIN 1601–AA49 contracts and fee structures that are submitting written comments, views, or appropriate for use with lead system Homeland Security Acquisition arguments on all or any aspect of this integrators. This rule implements Regulation; Lead System Integrators rule. Comments must be received by Section 396. [HSAR Case 2009–003] August 16, 2010. Comments should be This rule is issued by DHS’s Chief organized by Homeland Security Procurement Officer, who is the Senior AGENCY: Office of the Chief Procurement Acquisition Regulation (HSAR) Part, Procurement Executive (SPE), see 41 Officer, DHS. and address the specific section that is U.S.C. 414 and DHS Delegation Number ACTION: Interim rule with request for being commented on. All comments 0700, under authority of 5 U.S.C. 301– comments. received will be posted without change 302, the Office of Federal Procurement to http://www.regulations.gov, including Policy Act, Public Law 93–400, 88 Stat. SUMMARY: The Department of Homeland any personal information provided. See 796 (1974), including sections 22 and Security (DHS) is issuing an interim rule ADDRESSES above for information on 25, 41 U.S.C. 418b and 421, and FAR 48 amending the Homeland Security how to submit comments. If you submit CFR part 1, subpart 1.3. Acquisition Regulation (HSAR) to comments by mail, please submit them implement section 6405 of the U.S. in an unbound format, on 81⁄2-by-11- III. Discussion of Interim Rule Troop Readiness, Veterans’ Care, inch paper, suitable for copying and The interim rule revises (HSAR) 48 Katrina Recovery, and Iraq optical character recognition. If you CFR 3002.101, 3007.106, 3009.5, 3016.1, Accountability Appropriations Act, would like DHS to acknowledge receipt 3034.004, 3035.008, 3052.209–74 and 2007. This section of the Act and these of comments submitted by mail, please 3052.209–75 to implement Public Law implementing regulations restrict enclose a self- addressed stamped post 110–28, Title VI, Section 6405. contractors from acting as lead system card or envelope. DHS will consider all This rule changes the HSAR as integrators in the acquisition of DHS comments and material received during follows: major systems if they have direct the comment period. Access to the • Amends the definition of ‘‘Major financial interests in the development or docket, including background system’’ in (HSAR) 48 CFR 3002.101 and construction of any individual system or documents and comments received, can removes the reference to the obsolete element of any system of systems they be obtained at http://www. Management Directive (MD) 1400, integrate subject to stated exceptions. regulations.gov which contains relevant Investment Review Process. The

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definition of ‘‘Major system’’ for DHS this interim rule without prior in the development or construction of has been revised in accordance with opportunity for public comment. This any individual system or element of any OMB Circular A–109, Major System action is necessary because it system of systems while performing Acquisitions, and FAR 2.101. implements 6 U.S.C. 396, which lead system integrator functions. • Removes the ‘‘Reserved’’ specifies that the section applies to Presumably, entities which do not identification from (HSAR) 48 CFR 3007 contracts entered into after July 1, 2007, receive the desired return on revenue to and adds a reference to the newly- and that DHS shall update the HSAR justify participating as lead system revised (HSAR) 48 CFR 3009.570 in new prior to that date. Nevertheless, integrator would choose not to propose (HSAR) 48 CFR 3007.106–70 to address pursuant to 41 U.S.C. 418(b) and FAR on the particular contract. Such an limitations on the use of certain 1.501, DHS will consider public entity could still choose to propose as contractors as lead system integrators. comments received in response to this • a subcontractor under the prime Amends (HSAR) 48 CFR 3009 to interim rule with request for comment contract, thereby mitigating the effect in the formation of a final rule. add new section 3009.570 which even further. describes the limitations on the use of C. Regulatory Flexibility Act lead system integrators and provides In addition, this rule is not prescriptions for a new provision and The Department of Homeland discretionary; a statute requires that clause found at (HSAR) 48 CFR Security certifies that the interim rule DHS address these matters in its 3052.209–74 and 3052.209–75, amending (HSAR) 48 CFR 3002.101, acquisition regulation. 3007.106, 3009.5, 3016.1, 3034.004, respectively, for use in certain D. Paperwork Reduction Act solicitations and contracts. 3035.008, 3052.209–74 and 3052.209– • Amends (HSAR) 48 CFR 3016 to 75, will not have a significant economic The Paperwork Reduction Act does impact on a substantial number of small add subpart 3016.1 to address selection not apply because the rule does not entities within the meaning of the of the most appropriate contract type impose any information collection Regulatory Flexibility Act, 5 U.S.C. 601, and fee structure. requirements that require the approval • Removes the (HSAR) 48 CFR 3034 et seq. The factual basis for certification is presented in the following analysis of of the Office of Management and Budget ‘‘Reserved’’ identification and adds a under 44 U.S.C. 3501, et seq. reference in new section 3034.004 the effects of this rule. Application of pointing to 3009.570 for the policy the rule is limited to offerors or E. National Environmental Policy Act applicable to acquisition strategies in contractors providing services as lead the use of lead system integrators. system integrators or considering the We have analyzed this rule under • Amends (HSAR) 48 CFR 3035 to provision of such services. Lead system Department of Homeland Security add section 3035.008, which refers to integrators are limited to contracts for Directive 023–01, which guides the 3009.570 describing limitations on the the development or production of major Department in complying with the use of certain contractors as lead system systems, and often involve the National Environmental Policy Act of contractor performing functions closely integrators. 1969 (NEPA) (42 U.S.C. 4321–4370f), associated with inherently • Adds the new provision at (HSAR) and have concluded that this action is governmental functions. 48 CFR 3052.209–74, Limitations on one of a category of actions which do Under this interim rule, an entity that Contractors Acting as Lead System not individually or cumulatively have a receives a contract as a lead system significant effect on the human Integrators. integrator cannot have any direct • Adds the new clause at (HSAR) 48 environment. This rule, which does not financial interest in the development or involve any extraordinary CFR 3052.209–75, Prohibited Financial construction of any individual system or Interests for Lead System Integrators. circumstances, is categorically excluded element of any system of systems while under paragraphs A3(b) and A3(d) in performing lead system integrator IV. Regulatory Analyses. Table I of Appendix A of Directive 023– functions in the acquisition of a major 01 because it implements legislation by A. Executive Order 12866 Assessment system by the Department of Homeland amending acquisition regulations This is a not a significant regulatory Security under this contract. Lead without changing the regulation’s action under Section 6 of Executive system integrator contracts usually Order 12866, Regulatory Planning and extend several years, and we estimate environmental effect. Review, dated September 30, 1993. The that a limited number of such contracts List of Subjects in 48 CFR Parts 3002, Office of Management and Budget has are in effect within DHS at any one 3007, 3009, 3016, 3034, 3035, and 3052 not reviewed it under that Order. This time. Very few contracts of this rule is not a major rule under 5 U.S.C. character are awarded in any given year. Government procurement. 804. This rule helps to avoid The limitations on entities (both large Dated: June 30, 2010. organizational conflicts of interest in the and small) apply only to contractors Richard K. Gunderson, award and performance of contracts who choose to perform work for the awarded by the Department of Department of Homeland Security as a Acting Chief Procurement Officer, Homeland Security that involve the use lead system integrator. If an entity does Department of Homeland Security. of lead system integrators. Additionally, believe that participating in the ■ Accordingly, DHS amends 48 CFR it encourages the use of a larger number particular contract as lead system parts 3002, 3007, 3009, 3016, 3034, of contractors by establishing integrator would impose a significant 3035, and 3052 as follows: limitations on the extent of work that economic impact on their operation, the ■ 1. Revise the authority citation for 48 can be performed by lead system entity would make a business decision integrators. whether the revenue generated by doing CFR parts 3002, 3007, 3009, 3016, 3034, business with the Department of 3035, and 3052 to read as follows: B. Determination To Issue an Interim Homeland Security as a lead system Authority: 5 U.S.C. 301–302, 41 U.S.C. Rule integrator would provide a financial 418b(a) and (b), 41 U.S.C. 414, 48 CFR part DHS has determined that urgent and return sufficient to justify the restriction 1, subpart 1.3, and DHS Delegation Number compelling reasons exist to promulgate of not having a direct financial interest 0700.

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PART 3002—DEFINITIONS OF WORDS Subpart 3009.5—Organizational and contract for the acquisition of a major AND TERMS Consultant Conflicts of Interest system, the contracting officer shall— (a) Determine whether the prospective 3009.570 Limitations on contractors acting ■ 2. Amend section 3002.101 by contractor meets the definition of ‘‘lead as lead system integrators. ’’ revising the definition of ‘‘major system’’ system integrator ; (b) Consider all information regarding to read as follows: 3009.570–1 Definitions. the prospective contractor’s direct ‘‘Direct Financial Interest,’’ as used in 3002.101 Definitions. financial interests in view of the this section, is defined in the clause at prohibition at (HSAR) 48 CFR Major system means, for DHS, that HSAR 48 CFR 3052.209–75, Prohibited 3009.570–2(a); and combination of elements that will Financial Interests for Lead System (c) Apply the following procedures: function together to produce the Integrators. (1) After assessing the offeror’s direct capabilities required to fulfill a mission ‘‘Lead system integrator,’’ as used in financial interests in the development or need, including hardware, equipment, this section, is defined in the clause at construction of any individual system or software, or any combination thereof, (HSAR) 48 CFR 3052.209–75, Prohibited element of any system of systems, if the but excluding construction or other Financial Interests for Lead System offeror— improvements to real property. A DHS Integrators. (i) Has no direct financial interest in such systems, the contracting officer major system is one where the total 3009.570–2 Policy. lifecycle costs for the system are shall document the contract file to that (a) Except as provided in paragraph effect and may then further consider the estimated to equal or exceed $300M (in (b) of this subsection, under 6 U.S.C. offeror for award of the contract; constant 2009 dollars), or if the Deputy 396, no entity performing lead system (ii) Has a direct financial interest in Secretary has designated a program or integrator functions in the acquisition of such systems, but the exception in project as a major system. This a major system (See (HSAR) 48 CFR (HSAR) 3009.570–2(b)(2) applies, the corresponds to a DHS Level 1 or 2 3002.101) by DHS may have any direct contracting officer shall document the capital investment acquisition. financial interest in the development or contract file to that effect and may then * * * * * construction of any individual system or further consider the offeror for award of element of any system of systems under the contract; ■ 3. Add new part 3007 to read as the program in which the entity is (iii) Has a direct financial interest in follows: performing lead system integrator such systems and the exception in functions. (HSAR) 3009.570–2(b)(2) does not PART 3007—ACQUISITION PLANNING (b) The prohibition in paragraph (a) of apply, but the conditions in (HSAR) Subpart 3007.1—Acquisition Plans this subsection does not apply if— 3009.570–2(b)(1)(i) and (ii) do apply, the (1) The Secretary of Homeland contracting officer— Sec. Security certifies to the Committees on (A) Shall document the contract file to 3007.106 Additional Requirements for Appropriations of the Senate and the that effect; Major Systems. House of Representatives, the (B) May, in coordination with 3007.106–70 Limitations on Lead System Committee on Homeland Security of the program officials, request an exception Integrators. House of Representatives, the for the offeror from the Secretary of Homeland Security, in accordance with Subpart 3007.1—Acquisition Plans Committee on Transportation and Infrastructure of the House of Homeland Security Acquisition Manual 3007.106 Additional Requirements for Representatives, the Committee on section 3009.570; and Major Systems. Homeland Security and Governmental (C) Shall not award to the offeror Affairs of the Senate, and the Committee unless the Secretary of Homeland 3007.106–70 Limitations on Lead System on Commerce, Science and Security grants the exception and Integrators. Transportation of the Senate that— provides the required certification to Congress; or See (HSAR) 48 CFR 3009.570 for (i) The entity was selected by DHS as (iv) Has a direct financial interest in a contractor to develop or construct the policy applicable to acquisition such systems and the exceptions in system or element concerned through strategies that consider the use of lead (HSAR) 3009.570–2(b)(1) and (2) do not the use of competitive procedures, and system integrators. apply, the contracting officer shall not (ii) DHS took appropriate steps to award to the offeror. PART 3009—CONTRACTOR prevent any organizational conflict of QUALIFICATIONS interest in the selection process; or 3009.570–4 Solicitation provision and (2) The entity was selected by a contract clause. ■ 4. Add sections 3009.570 through subcontractor to serve as a lower-tier (a) Use the provision at (HSAR) 48 3009.570–4 to Subpart 3009.5 to read as subcontractor, through a process over CFR 3052.209–74, Limitations on follows: which the entity exercised no control. Contractors Acting as Lead System (c) CONSTRUCTION—Nothing in this Integrators, in solicitations for the Subpart 3009.5—Organizational and section 3009.570 shall be construed to acquisition of a major system when the Consultant Conflicts of Interest preclude an entity described in acquisition strategy envisions the use of Sec. paragraph (a) of this subsection from a lead system integrator. 3009.570 Limitations on contractors acting performing work necessary to integrate (b) Use the clause at (HSAR) 48 CFR as lead system integrators. two or more individual systems or 3052.209–75, Prohibited Financial 3009.570–1 Definitions. elements of a system of systems with Interests for Lead System Integrators— 3009.570–2 Policy. each other. (1) In solicitations that include the 3009.570–3 Procedures. provision at (HSAR) 48 CFR 3052.209– 3009.570–4 Solicitation provision and 3009.570–3 Procedures. 74; and contract clause. In making a responsibility (2) In contracts when the contractor determination before awarding a will fill the role of a lead system

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integrator for the acquisition of a major PART 3052—SOLICITATION information or commitment will allow DHS system. PROVISIONS AND CONTRACT to meet that standard. CLAUSES (f) This provision implements the PART 3016—TYPES OF CONTRACTS requirements of 6 U.S.C. 396, as added by Section 6405 of the U.S. Troop Readiness, ■ 8. Sections 3052.209–74 and Veterans’ Care, Katrina Recovery, And Iraq ■ 5. Add subpart 3016.1 to read as 3052.209–75 are added to read as Accountability Appropriations Act, 2007 follows: follows: (Pub. L. 110–28). Subpart 3016.1—Selecting Contract Types 3052.209–74 Limitations on Contractors (End of provision) Acting as Lead System Integrators. Sec. 3052.209–75 Prohibited Financial Interests 3016.170 Contracts with Lead System As prescribed in (HSAR) 48 CFR for Lead System Integrators. Integrators. 3009.570–4(a), use the following As prescribed in (HSAR) 48 CFR provision: Subpart 3016.1—Selecting Contract 3009.570–4(b), use the following clause: Types LIMITATIONS ON CONTRACTORS PROHIBITED FINANCIAL INTERESTS ACTING AS LEAD SYSTEM FOR LEAD SYSTEM INTEGRATORS 3016.170 Contracts with Lead System INTEGRATORS (JUL 2010) (JUL 2010) Integrators. (a) Definitions. ‘‘Direct financial interest,’’ (a) Definitions. As used in this clause— The contracting officer should ‘‘lead system integrator,’’ ‘‘lead system (1) ‘‘Direct financial interest,’’ for the negotiate the most appropriate contract integrator with system responsibility,’’ and purpose of this clause and contract, and ‘‘ type and fee structure based on risks lead system integrator without system subject to exceptions set forth 6 U.S.C. 396(b) responsibility,’’ as used in this provision, as implemented, means: inherent in the work to be performed, in have the meanings given in the clause of this accordance with (FAR) 48 CFR (i) Developing or constructing any solicitation entitled ‘‘Prohibited Financial individual system or element of any system 16.103(a). Contract type and fee Interests for Lead System Integrators’’ of systems for which the Contractor is the structure should be commensurate with ((HSAR) 48 CFR 3052.209–75). lead system integrator; the work to be performed and the risks (b) General. Unless an exception is granted, (ii) Owning or being in a position to exert assumed. Worthwhile existing guidance no contractor performing lead system corporate control over a subcontractor at any integrator functions in the acquisition of a level under the prime contract; on contract type selection, pricing, and major system by the Department of fee structures, such as exists in Vol. I, (iii) Owning, or being in a position to exert Homeland Security may have any direct corporate control over an entity that either— Ch. 4 of the Contract Reference Pricing financial interest in the development or (A) Is a subcontractor at any level under Guides [http://www.acq.osd.mil/dpap/ construction of any individual system or the prime contract, or cpf/docs/contract_pricing_finance_ element of any system of systems. (B) Owns or is in a position to control guide/vol4_ch1.pdf] can be consulted to (c) Representations. (1) The offeror another entity that is a subcontractor at any determine the appropriate contract type represents that it does [ ] does not [ ] level under the prime contract; and propose to perform this contract as a lead and fee structure for use in varied (iv) Participating or sharing in the profits system integrator with system responsibility. of another firm’s development or contracts with lead system integrators in (2) The offeror represents that it does [ ] construction of any individual system or the production, fielding and does not [ ] propose to perform this contract element of any system of systems for which sustainment of complex systems. as a lead system integrator without system the Contractor is the lead system integrator responsibility. or agreeing to participate in the profits of the ■ 6. Add part 3034 to read as follows: (3) If the offeror answered in the firm from such development or construction. affirmative in paragraph (c)(1) or (2) of this (2) ‘‘Lead system integrator’’ includes ‘‘lead PART 3034—MAJOR SYSTEM provision, the offeror represents that it does system integrator with system responsibility’’ ACQUISITION [ ] does not [ ] have any direct financial and ‘‘lead system integrator without system interest in the development or construction responsibility.’’ Subpart 3034.0—General of any system(s), subsystem(s), system of (3) ‘‘Lead system integrator with system Sec. systems, element of any system of systems, responsibility’’ means a prime contractor for 3034.004 Acquisition strategy. or services it proposes or intends to seek to the development or production of a major satisfy this solicitation. system, if the prime contractor is not 3034.0 General (d) If the offeror answered in the expected at the time of award to perform a affirmative in paragraph (c)(3) of this substantial portion of the work on the system 3034.004 Acquisition strategy. provision, the offeror should contact the and the major subsystems. Contracting Officer for guidance on whether (4) ‘‘Lead system integrator without system See (HSAR) 48 CFR 3009.570 for an exception may apply and what responsibility’’ means a prime contractor policy applicable to acquisition responsibilities the offeror may have in under a contract for the procurement of strategies that consider the use of lead qualifying for an exception. services, the primary purpose of which is to system integrators. (e) If the offeror does have a direct perform acquisition functions closely financial interest, the offeror shall be associated with inherently governmental PART 3035—RESEARCH AND prohibited from receiving an award under functions (see section 7.503(d) of the Federal this solicitation, unless: Acquisition Regulation) with regard to the DEVELOPMENT CONTRACTING (1) The offeror submits to the Contracting development or production of a major Officer appropriate evidence that the offeror system. ■ 7. Add section 3035.008 to read as was selected by a subcontractor to serve as (5) The phrase ‘‘substantial portion of the follows: a lower-tier subcontractor through a process work,’’ as used in the definition of ‘‘lead over which the offeror exercised no control; system integrator with system responsibility,’’ 3035.008 Evaluation for award. or may relate to the dollar value of the effort or (2) the conditions described in (HSAR) 48 to the criticality of the effort performed. See (HSAR) 48 CFR 3009.570 for CFR 3009.570–2(b)(1)(i) and (ii) exist, after an (b) Limitations. The Contracting Officer has limitations on the award of contracts to opportunity is afforded to the offeror to determined that the Contractor meets the contractors acting as lead system provide information or commitments as may definition of lead system integrator with [ ] integrators. be necessary to meet (HSAR) 48 CFR without [ ] system responsibility. Unless an 3009.570–2(b)(1)(ii), assuming any such exception is granted, the Contractor shall not

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have any direct financial interest in the Officer can determine whether an exception time of award or has violated the agreement development or construction of any applies or whether the Contractor will be in paragraph (c) of this clause, the individual system or element of any system allowed to continue performance on this Government may terminate this contract for of systems while performing lead system contract. If an organizational conflict of default or may take other remedial measures integrator functions in the acquisition of a interest in the performance of this contract as appropriate in the Contracting Officer’s major system by the Department of that is attributable to the Contractor’s direct sole discretion. Homeland Security under this contract. financial interest cannot be avoided, (e) This clause implements the (c) Agreement. The Contractor agrees that eliminated, or mitigated to the Contracting requirements of 6 U.S.C. 396, as added by during performance of this contract it will Officer’s satisfaction, the Contracting Officer Section 6405 of the U.S. Troop Readiness, not acquire any direct financial interest as may terminate this contract for default or Veterans’ Care, Katrina Recovery, And Iraq described in paragraph (b) of this clause, or, may take other remedial measures as Accountability Appropriations Act, 2007 if it does acquire or plan to acquire such appropriate in the Contracting Officer’s sole (Pub. L. 110–28). interest, it will immediately notify the discretion. Contracting Officer. The Contractor further (d) Notwithstanding any other clause of (End of clause) agrees to provide to the Contracting Officer this contract, if the Contracting Officer all relevant information regarding the change determines that the Contractor [FR Doc. 2010–16582 Filed 7–14–10; 8:45 am] in financial interests so that the Contracting misrepresented its financial interests at the BILLING CODE 9110–9B–P

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Proposed Rules Federal Register Vol. 75, No. 135

Thursday, July 15, 2010

This section of the FEDERAL REGISTER Washington, DC 20585–0121. Please would accept written comments through contains notices to the public of the proposed submit one signed paper original. July 6, 2010. issuance of rules and regulations. The • Hand Delivery/Courier: Ms. Brenda The Air-Conditioning, Heating, and purpose of these notices is to give interested Edwards, U.S. Department of Energy, Refrigeration Institute (AHRI) requested persons an opportunity to participate in the Building Technologies Program, Sixth an extension of the time to submit rule making prior to the adoption of the final Floor, 950 L’Enfant Plaza, SW., comments. In its request, AHRI stated rules. Washington, DC 20024. Please submit that because many AHRI members will one signed paper original. be attending the ASHRAE meetings, and DEPARTMENT OF ENERGY Docket: For access to the docket to considering the 4th of July holiday, read background documents, a copy of industry would not have adequate time 10 CFR Part 430 the transcript of the public meeting, or to appropriately respond to all the comments received, go to the U.S. questions and issues raised by DOE in [Docket Number: EE–2010–BT–STD–0011] Department of Energy, Resource Room the framework document. of the Building Technologies Program, RIN 1904–AC22 Based on the number and scope of Sixth Floor, 950 L’Enfant Plaza, SW., questions and issues raised in the DOE Energy Conservation Program: Energy Washington, DC 20024, (202) 586–2945, framework document (and during the Conservation Standards for Furnace between 9 a.m. and 4 p.m., Monday public meeting), DOE believes that Fans: Reopening of Public Comment through Friday, except Federal holidays. reopening the comment period to allow Period Please call Ms. Brenda Edwards first at additional time for interested parties to the above telephone number for submit comments is appropriate. AGENCY: Office of Energy Efficiency and additional information regarding Therefore, DOE is reopening the Renewable Energy, Department of visiting the Resource Room. comment period until July 27, 2010 to Energy. FOR FURTHER INFORMATION CONTACT: Mr. provide interested parties additional ACTION: Proposed rule; reopening of Mohammed Khan, U.S. Department of time to prepare and submit comments. public comment period. Energy, Office of Energy Efficiency and DOE will accept comments received no Renewable Energy, Building later than July 27, 2010 and will SUMMARY: This document announces a Technologies Program, EE–2J, 1000 consider any comments received reopening of the time period for Independence Avenue, SW., between July 6, 2010 and July 27, 2010 submitting comments on the framework Washington, DC 20585–0121. to be timely filed. document to establish energy Telephone: (202) 586–7892. E-mail: Issued in Washington, DC, on July 8, 2010. conservation standards for the use of [email protected]. electricity for purposes of circulating air Mr. Eric Stas, U.S. Department of Cathy Zoi, through duct work of residential heating Energy, Office of the General Counsel, Assistant Secretary, Energy Efficiency and and cooling systems (‘‘furnace fans’’). GC–71, 1000 Independence Avenue, Renewable Energy. The comment period closed on July 6, SW., Washington, DC, 20585–0121. [FR Doc. 2010–17212 Filed 7–14–10; 8:45 am] 2010. The comment period is reopened Telephone: (202) 586–9507. E-mail: BILLING CODE 6450–01–P from July 15, 2010 until July 27, 2010. [email protected]. DATES: Comments, data, and SUPPLEMENTARY INFORMATION: The U.S. DEPARTMENT OF ENERGY information relevant to the furnace fan Department of Energy (DOE) initiated a rulemaking will be accepted until July rulemaking to consider establishing new 10 CFR Part 431 27, 2010. energy conservation standards or energy [Docket No. EERE–2010–BT–STD–0003] ADDRESSES: Interested parties may use standards for furnace fans on June submit comments, identified by docket 3, 2010 by publishing a notice in the RIN 1904–AC19 number EERE–2010–BT–STD–0011 Federal Register (75 FR 31323). The and/or Regulation Identifier Number notice informed interested parties of the Energy Conservation Program: Re- (RIN) 1904–AC22, by any of the availability of a framework document Opening of the Public Comment Period following methods: that detailed the expected analytical for Commercial Refrigeration • Federal eRulemaking Portal: http:// approach and scope of coverage for the Equipment www.regulations.gov. Follow the rulemaking, and identified several AGENCY: Office of Energy Efficiency and instructions for submitting comments. issues on which DOE is particularly Renewable Energy, Department of • E-mail: FurnFans-2010-STD- interested in receiving comment. DOE Energy. [email protected]. Include docket held a public meeting on June 18, 2010 ACTION: Proposed rule: Re-opening of number EERE–2010–BT–STD–0011 to discuss and receive comments on its public comment period. and/or RIN 1904–AC22 in the subject analytical approach and associated line of the message. issues. (A transcript of the public SUMMARY: On May 6, 2010, the U. S. • Mail: Ms. Brenda Edwards, U.S. meeting is currently available on the Department of Energy (DOE) published Department of Energy, Building DOE Web page at the following URL: a Notice of Public Meeting (NOPM) in Technologies Program, Mailstop EE–2J, http://www.eere.energy.gov/buildings/ the Federal Register to announce the Framework Document for Furnace Fans, appliance_standards/residential/ availability of the framework document Docket No. EERE–2010–BT–STD–0011 furnace_fans_framework.html) DOE for commercial refrigeration equipment and/or RIN 1904–AC22, 1000 announced in the Federal Register and provide notice of a public meeting. Independence Avenue, SW., notice and at the public meeting that it The NOPM provided for the submission

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of comments by June 7, 2010, and Independence Avenue, SW., explanation of the competitive injury to comments were also accepted at a Washington, DC 20585–0121. the submitting person which would public meeting held on May 18, 2010. Telephone: (202) 586–2192. E-mail: result from public disclosure, (6) when This document announces that the [email protected]. such information might lose its period for submitting comments on the Mr. Michael Kido, U.S. Department of confidential character due to the framework document for commercial Energy, Office of the General Counsel, passage of time, and (7) why disclosure refrigeration equipment is to be re- GC–71, 1000 Independence Avenue, of the information would be contrary to opened from July 15, 2010 to July 30, SW., Washington, DC 20585–0121, (202) the public interest. 586–8145, [email protected]; or 2010. Issued in Washington, DC, on July 8, 2010. Ms. Elizabeth Kohl, U.S. Department of DATES: DOE will accept comments, data, Energy, Office of the General Counsel, Cathy Zoi, and information regarding the GC–71, 1000 Independence Avenue, Assistant Secretary, Energy Efficiency and framework document for commercial Renewable Energy. SW., Washington, DC 20585–0121, (202) refrigeration equipment received 586–7796, [email protected]. [FR Doc. 2010–17213 Filed 7–14–10; 8:45 am] between July 15, 2010 and July 30, 2010. SUPPLEMENTARY INFORMATION: On May 6, BILLING CODE 6450–01–P ADDRESSES: Any comments submitted 2010, DOE published a NOPM in the must identify the framework document Federal Register (75 FR 24824) to for commercial refrigeration equipment, DEPARTMENT OF ENERGY announce the availability of the and provide docket number EERE– framework document for commercial 10 CFR Part 431 2010–BT–STD–0003 and/or RIN number refrigeration equipment and provide 1904–AC19. Comments may be notice of a public meeting. The NOPM [Docket No. EERE–2008–BT–STD–0015] submitted using any of the following provided for the submission of RIN 1904–AB86 methods: comments by June 7, 2010, and • Federal eRulemaking Portal: http:// comments were also accepted at a Energy Conservation Program: Re- www.regulations.gov. Follow the public meeting held on May 18, 2010. Opening of the Public Comment Period instructions for submitting comments. The People’s Republic of China for Walk-In Coolers and Walk-in • E-mail: CRE-2010-STD- submitted a request for DOE to extend Freezers [email protected]. Include docket the comment period to allow additional number EERE–2010–BT–STD–0003 AGENCY: Office of Energy Efficiency and time for review of the documents and and/or RIN 1904–AC19 in the subject Renewable Energy, Department of the submission of comments. DOE has line of the message. Submit electronic Energy. determined that an extension of the comments in WordPerfect, Microsoft public comment period is appropriate as ACTION: Proposed Rule: re-opening of Word, PDF, or ASCII file format and a result of this comment and is hereby public comment period. avoid the use of special characters or extending the comment period. DOE SUMMARY: On April 5, 2010, the U. S. any form of encryption. will consider any comments received • Postal Mail: Ms. Brenda Edwards, Department of Energy (DOE) published between July 15, 2010 and July 30, 2010 U.S. Department of Energy, Building a Notice of Public Meeting (NOPM) in and deems any comments received Technologies Program, Mailstop EE–2J, the Federal Register to announce the between publication of the NOPM on 1000 Independence Avenue, SW., availability of the technical support May 6, 2010 and July 30, 2010 to be Washington, DC 20585–0121. document for walk-in coolers and timely submitted. Telephone: (202) 586–2945. Please freezers and a public meeting on May submit one signed original paper copy. Further Information on Submitting 14, 2010. On April 14, 2010, DOE • Hand Delivery/Courier: Ms. Brenda Comments published a correction notice to change Edwards, U.S. Department of Energy, Under Title 10 of the Code of Federal the date of the public meeting to May Building Technologies Program, 950 Regulations 1004.11, any person 19, 2010 and extend the deadline for the L’Enfant Plaza, SW., 6th Floor, submitting information that he or she submission of comments to May 28, Washington, DC 20024. Please submit believes to be confidential and exempt 2010. This document announces that one signed original paper copy. by law from public disclosure should the period for submitting comments on Docket: For access to the docket to submit two copies: one copy of the the preliminary technical support read background documents or document including all the information document for walk-in coolers and walk- comments received, visit the U.S. believed to be confidential, and one in freezers is to be re-opened from July Department of Energy, Resource Room copy of the document with the 15, 2010 to July 30, 2010. of the Building Technologies Program, information believed to be confidential DATES: DOE will accept comments, data, 950 L’Enfant Plaza, SW., 6th Floor, deleted. DOE will make its own and information regarding the Washington, DC, 20024, (202) 586–2945, determination about the confidential preliminary technical support document between 9 a.m. and 4 p.m. Monday status of the information and treat it for walk-in coolers and walk-in freezers through Friday, except Federal holidays. according to its determination. received between July 15, 2010 and July Please call Ms. Brenda Edwards at the Factors of interest to DOE when 30, 2010 above telephone number for additional evaluating requests to treat submitted ADDRESSES: Any comments submitted information regarding visiting the information as confidential include (1) must identify the preliminary analysis Resource Room. Please note: DOE’s A description of the items, (2) whether for walk-in coolers and walk-in freezers, Freedom of Information Reading Room and why such items are customarily and provide docket number EERE– (Room 1E–190 at the Forrestal Building) treated as confidential within the 2008–BT–STD–0015 and/or RIN number no longer houses rulemaking materials. industry, (3) whether the information is 1904–AB86. Comments may be FOR FURTHER INFORMATION CONTACT: Mr. generally known by or available from submitted using any of the following Charles Llenza, U.S. Department of other sources, (4) whether the methods: Energy, Office of Energy Efficiency and information has previously been made • Federal eRulemaking Portal: http:// Renewable Energy, Building available to others without obligation www.regulations.gov. Follow the Technologies, EE–2J, 1000 concerning its confidentiality, (5) an instructions for submitting comments.

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• E-mail: WICF-2008-STD- comments to May 28, 2010. 75 FR DEPARTMENT OF TRANSPORTATION [email protected]. Include docket 19297. Comments were accepted number EERE–2008–BT–STD–0015 through May 28, 2010 and were also Federal Aviation Administration and/or RIN 1904–AB86 in the subject accepted at the public meeting held on line of the message. Submit electronic May 19, 2010. At the public meeting, 14 CFR Part 39 comments in WordPerfect, Microsoft DOE received a request to further extend [Docket No. FAA–2010–0711; Directorate Word, PDF, or ASCII file format and the comment period to allow for the Identifier 2008–SW–25–AD] avoid the use of special characters or consideration of issues discussed at the RIN 2120–AA64 any form of encryption. public meeting. DOE has determined • Postal Mail: Ms. Brenda Edwards, that an extension of the public comment Airworthiness Directives; Robinson U.S. Department of Energy, Building period is appropriate as a result of this Helicopter Company (Robinson) Model Technologies Program, Mailstop EE–2J, request and is hereby re-opening the R22, R22 Alpha, R22 Beta, and R22 1000 Independence Avenue, SW., comment period. DOE will consider any Mariner Helicopters, and Model R44, Washington, DC 20585–0121. and R44 II Helicopters Telephone: (202) 586–2945. Please comments received between July 15, 2010 and July 30, 2010 and deems any submit one signed original paper copy. AGENCY: Federal Aviation • Hand Delivery/Courier: Ms. Brenda comments received between publication Administration, DOT. of the NOPM on April 5, 2010 and July Edwards, U.S. Department of Energy, ACTION: Notice of proposed rulemaking 30, 2010 to be timely submitted. Building Technologies Program, 950 (NPRM). L’Enfant Plaza, SW., 6th Floor, Further Information on Submitting Washington, DC 20024. Please submit Comments SUMMARY: This document proposes one signed original paper copy. adopting a new airworthiness directive Docket: For access to the docket to Under Title 10 of the Code of Federal (AD) for Robinson Model R22, R22 read background documents or Regulations 1004.11, any person Alpha, R22 Beta, and R22 Mariner comments received, visit the U.S. submitting information that he or she helicopters, and Model R44 and R44 II Department of Energy, Resource Room believes to be confidential and exempt helicopters. The AD would require of the Building Technologies Program, by law from public disclosure should visually inspecting each tail rotor (T/R) 950 L’Enfant Plaza, SW., 6th Floor, submit two copies: One copy of the control pedal bearing block support Washington, DC, 20024, (202) 586–2945, document including all the information (support) for a crack, measuring the between 9 a.m. and 4 p.m. Monday believed to be confidential, and one thickness of each uncracked support, through Friday, except Federal holidays. copy of the document with the installing support safety tabs on certain Please call Ms. Brenda Edwards at the information believed to be confidential supports, and replacing supports of a above telephone number for additional certain thickness during overhaul. This deleted. DOE will make its own information regarding visiting the proposal is prompted by two reports of determination about the confidential Resource Room. Please note: DOE’s Model R22 helicopters experiencing Freedom of Information Reading Room status of the information and treat it broken supports during flight, which (Room 1E–190 at the Forrestal Building) according to its determination. resulted in the T/R control pedals no longer houses rulemaking materials. Factors of interest to DOE when becoming jammed. The actions FOR FURTHER INFORMATION CONTACT: Mr. evaluating requests to treat submitted specified by the proposed AD are Charles Llenza, U.S. Department of information as confidential include (1) intended to prevent the supports from Energy, Office of Energy Efficiency and A description of the items, (2) whether breaking, which can bind the T/R Renewable Energy, Building and why such items are customarily control pedals, resulting in a reduction Technologies, EE–2J, 1000 treated as confidential within the of yaw control and subsequent loss of Independence Avenue, SW, industry, (3) whether the information is control of the helicopter. Washington, DC 20585–0121, (202) 586– generally known by or available from DATES: Comments must be received on 2192. E-mail: other sources, (4) whether the or before September 13, 2010. [email protected]. information has previously been made ADDRESSES: Use one of the following Mr. Michael Kido, U.S. Department of available to others without obligation addresses to submit comments on this Energy, Office of General Counsel, GC– concerning its confidentiality, (5) an proposed AD: 71, 1000 Independence Avenue, SW., explanation of the competitive injury to • Federal eRulemaking Portal: Go to Washington, DC 20585–0121, (202) 586– the submitting person which would http://www.regulations.gov. Follow the 8145, [email protected]; or Ms. result from public disclosure, (6) when instructions for submitting comments. Elizabeth Kohl, U.S. Department of such information might lose its • Fax: 202–493–2251. Energy, Office of General Counsel, GC– • confidential character due to the Mail: U.S. Department of 71, 1000 Independence Avenue, SW., passage of time, and (7) why disclosure Transportation, Docket Operations, M– Washington, DC 20585–0121, (202) 586– 30, West Building Ground Floor, Room 7796, [email protected]. of the information would be contrary to the public interest. W12–140, 1200 New Jersey Avenue, SE., SUPPLEMENTARY INFORMATION: On April Washington, DC 20590. 5, 2010, DOE published a NOPM in the Issued in Washington, DC, on July 8, 2010. • Hand Delivery: U.S. Department of Federal Register to announce the Cathy Zoi, Transportation, Docket Operations, M– availability of the technical support Assistant Secretary, Energy Efficiency and 30, West Building Ground Floor, Room document for walk-in coolers and Renewable Energy. W12–140, 1200 New Jersey Avenue, SE., freezers and a public meeting on May [FR Doc. 2010–17214 Filed 7–14–10; 8:45 am] Washington, DC 20590, between 9 a.m. 14, 2010. 75 FR 17080. On April 14, BILLING CODE 6450–01–P and 5 p.m., Monday through Friday, 2010, DOE published a correction notice except Federal holidays. to change the date of the public meeting You may get the service information to May 19, 2010 and extend the identified in this proposed AD from deadline for the submission of Robinson Helicopter Company, 2901

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Airport Drive, Torrance, California helicopters, serial numbers (S/N) 0002 512 helicopters (approximately 25% of 90505, telephone (310) 539–0508, fax through 3325, that have more than 2,200 the 2,050 helicopters) have both (310) 539–5198. hours total time-in-service (TIS); and supports replaced before the next 2,200 FOR FURTHER INFORMATION CONTACT: Eric Model R44 and R44 II helicopters, S/N hours TIS overhaul. 0001 through 1200, that have more than D. Schrieber, Aviation Safety Engineer, Regulatory Findings telephone (562) 627–5348, fax (562) 2,200 hours total TIS. The AD would 627–5210, regarding Robinson Model require, within 100 hours TIS, visually We have determined that this R22 helicopters, or Fred Guerin, inspecting both A359–1 and A359–2 proposed AD would not have federalism Aviation Safety Engineer, telephone supports for a crack and replacing any implications under Executive Order (562) 627–5232, fax (562) 627–5210, cracked or broken support before further 13132. Additionally, this proposed AD regarding Robinson Model R44 flight, and if not cracked, measuring the would not have a substantial direct helicopters, at the FAA, Los Angeles thickness of both supports and if less effect on the States, on the relationship Aircraft Certification Office, Airframe than 0.050-inch thick, installing support between the national Government and Branch, 3960 Paramount Blvd., safety tabs, and at the next 2,200 hour the States, or on the distribution of Lakewood, California 90712. TIS overhaul, replacing any support that power and responsibilities among the SUPPLEMENTARY INFORMATION: is less than 0.050-inch thick with a various levels of government. support that is at least 0.050-inch thick. For the reasons discussed above, I Comments Invited This proposal is prompted by two certify that the proposed regulation: We invite you to submit any written reports of Model R22 helicopters with 1. Is not a ‘‘significant regulatory data, views, or arguments regarding this more than 7,000 hours TIS, with action’’ under Executive Order 12866; proposed AD. Send your comments to supports made from 0.040-inch thick 2. is not a ‘‘significant rule’’ under the the address listed under the caption sheet metal, experiencing broken DOT Regulatory Policies and Procedures ADDRESSES. Include the docket number supports during flight, which led to the (44 FR 11034, February 26, 1979); and ‘‘FAA–2010–0711, Directorate Identifier T/R control pedals becoming jammed, 3. will not have a significant 2008–SW–25–AD’’ at the beginning of resulting in hard landings and damage economic impact, positive or negative, your comments. We specifically invite to the helicopters. The actions specified on a substantial number of small entities comments on the overall regulatory, by the proposed AD are intended to under the criteria of the Regulatory economic, environmental, and energy prevent the supports from breaking, Flexibility Act. aspects of the proposed AD. We will which can bind the T/R control pedals, We prepared a draft economic consider all comments received by the resulting in a reduction of yaw control evaluation of the estimated costs to closing date and may amend the and subsequent loss of control of the comply with this proposed AD. See the proposed AD in light of those helicopter. AD docket to examine the draft comments. We have reviewed Robinson economic evaluation. We will post all comments we Helicopter Company Service Bulletin Authority for this Rulemaking receive, without change, to http:// SB–63 and SB–97, both dated February www.regulations.gov, including any 22, 2008, which describe procedures for Title 49 of the United States Code personal information you provide. We inspecting both supports for a crack, specifies the FAA’s authority to issue will also post a report summarizing each and if no crack is found, measuring each rules on aviation safety. Subtitle I, substantive verbal contact with FAA support and installing safety tabs on section 106, describes the authority of personnel concerning this proposed supports that are less than 0.050-inch the FAA Administrator. Subtitle VII, rulemaking. Using the search function thick, and at the next 2,200 hour TIS Aviation Programs, describes in more of our docket Web site, you can find and overhaul, replacing certain supports. detail the scope of the Agency’s read the comments to any of our This unsafe condition is likely to exist authority. dockets, including the name of the or develop on other helicopters of the We are issuing this rulemaking under individual who sent or signed the same type design. The actions would be the authority described in Subtitle VII, comment. You may review the DOT’s required to be accomplished by Part A, Subpart III, section 44701, complete Privacy Act Statement in the following specified portions of the ‘‘General requirements.’’ Under that Federal Register published on April 11, service bulletins described previously. section, Congress charges the FAA with 2000 (65 FR 19477). This proposed AD would affect 4,524 promoting safe flight of civil aircraft in helicopters of U.S. registry, and air commerce by prescribing regulations Examining the Docket proposed actions would take for practices, methods, and procedures You may examine the docket that approximately 0.5 work hour to inspect the Administrator finds necessary for contains the proposed AD, any and measure the supports. We estimate safety in air commerce. This regulation comments, and other information in that 2,050 helicopters would require an is within the scope of that authority person at the Docket Operations office additional 1 work hour to install both because it addresses an unsafe condition between 9 a.m. and 5 p.m., Monday safety tabs; 6 work hours to replace both that is likely to exist or develop on through Friday, except Federal holidays. supports if cracked or broken or before products identified in this rulemaking The Docket Operations office (telephone overhaul, or 3 work hours to replace action. (800) 647–5527) is located in Room both supports as part of a 2,200 hours W12–140 on the ground floor of the TIS overhaul, at an average labor rate of List of Subjects in 14 CFR Part 39 West Building at the street address $85 per work hour. Required parts Air transportation, Aircraft, Aviation stated in the ADDRESSES section. would cost approximately $20 per safety, Incorporation by reference, Comments will be available in the AD support if replacement is required. Safety. docket shortly after receipt. Based on these figures, the total cost impact of the proposed AD on U.S. The Proposed Amendment Discussion operators would be $1,101,830, Accordingly, pursuant to the This document proposes adopting a assuming 1,538 (approximately 75% of authority delegated to me by the new AD for Robinson Model R22, R22 the 2,050 helicopters) have both Administrator, the Federal Aviation Alpha, R22 Beta, and R22 Mariner supports replaced during overhaul, and Administration proposes to amend part

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39 of the Federal Aviation Regulations Issued in Fort Worth, Texas, on July 6, Secretary, DRBC, P.O. Box 7360, West (14 CFR part 39) as follows: 2010. Trenton, NJ 08628–0360; or by private Mark R. Schilling, mail carrier to Regulations c/o PART 39—AIRWORTHINESS Acting Manager, Rotorcraft Directorate, Commission Secretary, DRBC, 25 State DIRECTIVES Aircraft Certification Service. Police Drive, West Trenton, NJ 08628– [FR Doc. 2010–17283 Filed 7–14–10; 8:45 am] 0360. In all cases, please include the 1. The authority citation for part 39 BILLING CODE 4910–13–P commenter’s name, address and continues to read as follows: affiliation if any in the comment and Authority: 49 U.S.C. 106(g), 40113, 44701. include ‘‘Water Quality Criteria’’ in the DELAWARE RIVER BASIN subject line. § 39.13 [Amended] COMMISSION FOR FURTHER INFORMATION CONTACT: The 2. Section 39.13 is amended by 18 CFR Part 410 current rule and the full text of the adding a new airworthiness directive to proposed amendments are posted on the read as follows: Amendments to the Water Quality Commission’s Web site, http:// Robinson Helicopter Company: Docket No. Regulations, Water Code and www.drbc.net, along with the report FAA–2010–0711; Directorate Identifier Comprehensive Plan to Update Water entitled ‘‘Water Quality Criteria for 2008–SW–25–AD. Quality Criteria for Toxic Pollutants in Toxic Pollutants for Zones 2–6 of the Applicability: Model R22, R22 Alpha, R22 the Delaware Estuary and Extend Delaware Estuary: Basis and Beta, and R22 Mariner helicopters, serial These Criteria to Delaware Bay Background Document’’ (DRBC, June numbers (S/N) 0002 through 3325, that have 2010) and a set of PowerPoint slides more than 2,200 hours total time-in-service AGENCY: Delaware River Basin presented to the Commission at the (TIS); and Model R44 and R44 II helicopters, Commission. latter’s public meeting on December 9, S/N 0001 through 1200, that have more than ACTION: Notice of proposed rulemaking. 2009 by the chair of the Commission’s 2,200 hours total TIS, certificated in any SUMMARY: The Delaware River Basin Toxics Advisory Committee. Hard category. copies of these materials may be Compliance: Required as indicated, unless Commission (DRBC or ‘‘Commission’’) accomplished previously. will hold a public hearing to receive obtained for the price of postage by To prevent the tail rotor (T/R) control comments on proposed amendments to contacting Ms. Paula Schmitt at 609– pedal bearing block support (support) from the Commission’s Water Quality 883–9500, ext. 224. For questions about breaking, which can bind the T/R control Regulations, Water Code and the technical basis for the rule, please pedals, resulting in a reduction of yaw Comprehensive Plan to update many of contact Dr. Ronald MacGillivray at 609– control and subsequent loss of control of the the Commission’s stream quality 477–7252. For queries about the helicopter, accomplish the following: objectives (also called water quality rulemaking process, please contact (a) Within 100 hours TIS, visually inspect criteria) for human health and aquatic Pamela Bush at 609–477–7203. each A359–1 (left) and A359–2 (right) pedal life for toxic pollutants in the Delaware SUPPLEMENTARY INFORMATION: support for a crack by referring to the figure Estuary (DRBC Water Quality Zones 2 in Robinson Helicopter Company (Robinson) Background. At the request of the Service Bulletin SB–97, dated February 22, through 5) and to extend application of states of Delaware, New Jersey and 2008 (SB–97) for all Model R22 helicopters, the criteria to Delaware Bay (DRBC Pennsylvania, which border the and Robinson Service Bulletin SB–63, dated Water Quality Zone 6). The proposed Delaware Estuary (hereinafter, ‘‘the February 22, 2008 (SB–63) for all Model R44 changes will bring the Commission’s Estuary States’’), the Commission in helicopters. criteria for toxic pollutants into 1996 adopted water quality criteria for (1) If you find a crack in a support, before conformity with current guidance human health and aquatic life for Water further flight, replace the cracked support published by the U.S. Environmental Quality Zones 2 through 5 (Trenton, with an airworthy support that is at least Protection Agency (EPA) and provide a New Jersey to Delaware Bay) of the main 0.050-inch thick. more consistent regulatory framework stem Delaware River and the tidal (2) For each uncracked support, measure for managing the tidal portion of the portions of its tributaries for a set of the thickness of the support. If the support main stem Delaware River. pollutants that included the list of is less than 0.050-inch thick, before further DATES: The public hearing will take Priority Pollutants published by the flight, install a safety tab on the support in place on Thursday, September 23, 2010 EPA in accordance with section 307 of accordance with steps 4 and 5 of the at 2:30 p.m. and will continue on that Compliance Procedures section in SB–97 or the federal Clean Water Act (CWA); day until all those who wish to testify SB–63, as appropriate for your model other pollutants for which EPA had helicopter. are afforded an opportunity to do so. published national recommended (b) At the next 2,200 hours TIS overhaul, Written comments will be accepted criteria in accordance with section replace any support that is less than 0.050- through 5 p.m. on Friday, October 1, 304(a) of the CWA; and additional inch thick, with an airworthy support that is 2010. pollutants for which one or more of the at least 0.050-inch thick. ADDRESSES: The public hearing will take Estuary States had adopted criteria. See (c) To request a different method of place in the Goddard Room at the 40 CFR 401.15 (consisting of a list of 65 compliance or a different compliance time Commission’s office building, located at toxic pollutants, including categories of for this AD, follow the procedures in 14 CFR 25 State Police Drive, West Trenton, pollutants, for which effluent 39.19. Contact the Manager, Los Angeles New Jersey. Driving directions are limitations are required in accordance Aircraft Certification Office, FAA, ATTN: available on the Commission’s Web site, with section 307(a)(1) of the Clean Eric D. Schrieber, Aviation Safety Engineer, Water Act, 33 U.S.C. 1317(a)(1)); 3960 Paramount Blvd., Lakewood, California http://www.drbc.net. Please do not rely 90712, telephone (562) 627–5348, fax (562) on Internet mapping services as they Appendix A of 40 CFR Part 423 627–5210 (regarding Model R22 helicopters); may not provide accurate directions to (consisting of a list of 129 ‘‘Priority or ATTN: Fred Guerin, Aviation Safety this location. Pollutants,’’ individual chemicals and Engineer, telephone (562) 627–5232, fax Written comments may be submitted forms of chemicals for which EPA has (562) 627–5210 (regarding Model R44 by e-mail to [email protected] by fax established national criteria); and 33 helicopters) for information about previously to Regulations at 609–883–9522; by U.S. U.S.C. 1314(a) (providing for criteria approved alternative methods of compliance. Mail to Regulations c/o Commission development and publication by EPA).

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Managing an interstate waterway that across interstate waters. The TAC’s assumptions on which the TAC relied in is simultaneously an industrial and recommendations were formally developing the revised criteria. commercial hub, a source of drinking presented to the Commissioners at a The proposed changes to tables 3, 5, water for urban and suburban public meeting on December 9, 2009 by 6 and 7 are described briefly below: populations in three states and a fragile then TAC chair, Christopher S. Crocket For Table 3, ‘‘Maximum Contaminant tidal ecosystem is a complex task. After of the Philadelphia Water Department. Levels [‘‘MCLs’’] to be Applied as nearly fifteen years of applying uniform Dr. Crockett’s PowerPoint presentation Human Health Stream Quality human health and aquatic life criteria in is available on the Commission’s Web Objectives in Zones 2 and 3’’: the Delaware Estuary, the Commission site. • Antimony, Cadmium, 1,2- has determined that maintaining a No Change Proposed to Criteria for Dichloropropane, Ethylbenzene and uniform set of criteria in a single PCBs and Taste and Odor. The 1,2,4-Trichlorobenzene are proposed to regulatory code is an essential predicate amendments proposed by the be removed because the proposed to measuring and managing the Commission in this rulemaking do not updates to Table 7 (criteria for systemic ecological health of this vital interstate include changes to the Commission’s toxicants) would establish DRBC criteria resource. criteria for polychlorinated biphenyls for these compounds more stringent Since 1996, EPA has updated its (PCBs), currently listed in Table 6 than the MCLs. guidance for the development of human (criteria for carcinogens) and Table 7 • Nickel is proposed to be removed health water quality criteria and its list (criteria for systemic toxicants) of because the MCL for nickel was of national recommended water quality Article 3 of the Commission’s Water withdrawn by the EPA. criteria for many toxic pollutants to Quality Regulations and Water Code, or • Chromium (total) is proposed to be reflect advances in scientific knowledge. to the criteria to protect the taste and replaced by Chromium III for Although the states have independently odor of ingested water and fish, set forth consistency with current EPA guidance. amended some of their criteria to in Table 4 of the same Article. The • Current MCL values for Beryllium, conform to the current guidance and Commission initiated a separate Copper, Lead, alpha-BHC, beta-BHC, national recommended criteria, the rulemaking in August of 2009 to update 2,4-Dichloro-phenoxyacetic acid (2,4-D), Commission has not yet done so. The its human health criteria for Methoxychlor, Toxaphene, Dioxin result is that many of DRBC’s estuary carcinogenic effects for PCBs in the (2,3,7,8-TCDD), 2,4,5-Trichloro- toxics criteria are not currently Delaware Estuary (see 74 FR 41100). phenoxypropionic acid (2,4,5-TP- consistent with state criteria, best The comment period for that proposal Silvex), Benzene, Carbon Tetrachloride, available science, or current EPA ended on October 19, 2009 and the 1,2-Dichloroethane, 1,1- guidance. Moreover, because the Bay Commission has not yet approved a Dichloroethylene, Dichloromethane and Estuary comprise a single tidal final rule. The current PCB criteria will (methylene chloride), system in which each water quality continue in effect pending completion Tetrachloroethylene (PCE), Toluene, zone is at times downstream and at of the Commission’s separate 1,1,1-Trichloroethane, 1,1,2- times upstream of the adjacent zone or rulemaking for PCBs. The Commission’s Trichloroethane, Trichloroethylene, zones, regulators, dischargers and other Toxics Advisory Committee has not yet Vinyl Chloride, Benzo(a)pyrene, stakeholders have determined that they taken up the matter of revisions to the are ill-served by excluding the Bay from Asbestos, Bis(2-Ethylhexyl) Phthalate, criteria to protect taste and odor. application of uniform criteria in the Fluoride, Nitrate, and Estuary. Amending the criteria at this Proposed Changes. The Commission’s Pentachlorophenol are proposed to be time is necessary to restore consistency criteria for human health and aquatic added because these MCL values were and fairness in the regulation of life in the Delaware Estuary are listed in developed by EPA after 1996 in discharges, to facilitate coordination tables 3, 5, 6 and 7 of section 3.30 accordance with the Safe Drinking among state and federal programs and to ‘‘Interstate Streams—Tidal’’ of the Water Water Act, 42 U.S.C.A. § 1412g–1(b). continue to ensure that regulation of Quality Regulations and Water Code. In As to Table 5, ‘‘Stream Quality water quality in the shared interstate addition to extending these criteria to Objectives for Toxic Pollutants for the waters of the Estuary and Bay is based Water Quality Zone 6, two major types Protection of Aquatic Life’’, Table 6, on the best science available. of changes to the criteria are proposed: ‘‘Stream Quality Objectives for The proposed amendments to the (1) Compounds are proposed to be Carcinogens’’ and Table 7, ‘‘Stream Commission’s human health and added to or deleted from the four tables Quality Objectives for Systemic aquatic life criteria for the Estuary and and (2) numeric criteria for many of the Toxicants,’’ nearly all of the freshwater Bay were developed by the compounds currently listed in the tables and marine criteria are proposed to be Commission’s standing Toxics Advisory are proposed to be revised. In addition, updated to conform to current EPA Committee (TAC), comprised of to assist users sub-headings have been guidance, resulting in minor changes in representatives of the four basin states— added for categories of pollutants most instances and substantial changes Delaware, New Jersey, New York and (metals, pesticides, etc.) and the in some. Most but not all of the Pennsylvania—and members of the sequence of the parameters has been proposed criteria are more stringent academic, agricultural, public health, modified to arrange them within these than the existing criteria. industrial and municipal sectors and categories. Minor changes for Proposed changes to Table 6 (criteria non-governmental environmental consistency in spelling and for carcinogens) also include the community. The TAC in 2007 adopted capitalization are also proposed. The following: as its objectives (a) evaluating recent additions, deletions and criteria changes • Beryllium and 1,1-Dichloroethene data and current methodologies for are proposed in order to make the list are proposed to be removed because establishing water quality criteria for of regulated compounds consistent with EPA no longer lists these compounds as toxic pollutants and (b) developing current EPA guidance and to ensure the carcinogens. recommendations for revising the criteria are uniform throughout the • 1,1,1,2-Tetrachloroethane is Commission’s 1996 criteria to reflect shared waters. The Basis and proposed to be removed because it is no current science and risk assessment Background Document cited above sets longer recommended by the EPA for procedures and provide for consistency forth in detail the policies and technical water quality criteria development.

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• Arsenic, beta-BHC, N-Nitrosodi-N- Endosulfan Sulfate, Endrin Aldehyde, • The column identifying EPA butylamine, N-Nitrosodiethylamine, and Benzene, 2-Chloronaphthalene, classifications is proposed to be N-Nitrosopyrrolidine are proposed to be Cyanide, 2-Methyl-4,6-dinitrophenol, removed from Table 7 because this added because EPA and an Estuary State Pentachlorobenzene, 1,2,4,5- information is not needed for have adopted criteria for them. Tetrachloro-benzene, 2,4,5- application of the criteria for systemic • Dinitrotoluene mixture (2, 4 & 2, 6) Trichlorophenol, and Vinyl Chloride are toxicants. Detailed information on is proposed to be replaced by 2, 4- proposed to be added to Table 7 because derivation of the criteria, including EPA Dinitrotoluene to be consistent with EPA and an Estuary State adopted classifications, is presented in the Basis current EPA guidance. criteria for them. • Hexachlorobutadiene is proposed to and Background Document posted on • DDT is proposed to be replaced be moved to Table 6 (criteria for DRBC’s Web site. with ‘‘DDT and Metabolites (DDD and carcinogens) from Table 7 because its Extension of Criteria to Delaware Bay DDE)’’ to conform to current EPA toxicity is based on carcinogenicity. (Zone 6). A new section 3.10.6C.11. is guidance relating to the systemic Proposed changes to Table 7 (criteria proposed to be added to make tables 3 for systemic toxicants) also include the toxicity of DDT and its degradation products, DDD and DDE. DDT, DDD and through 7 of Article 3 of the Water following: Quality Regulations and Water Code • 1,1,1,2-Tetrachloroethane is DDE, which are also deemed to be carcinogens, continue to be listed applicable to Water Quality Zone 6, proposed to be removed because it is no Delaware Bay. longer recommended by the EPA for individually in Table 6. water quality criteria development. • Hexachlorobutadiene has been It is proposed to amend the Water • Chromium (Total), Methylmercury, moved from Table 7 to Table 6 because Quality Regulations and Water Code as alpha-Endosulfan, beta-Endosulfan, its toxicity is based on carcinogenicity. follows:

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Dated: July 8, 2010. e-mail [email protected]. If you Viewing Comments and Documents Pamela M. Bush, have questions on viewing or submitting Commission Secretary. material to the docket, call Renee V. To view comments, as well as documents mentioned in this preamble [FR Doc. 2010–17118 Filed 7–14–10; 8:45 am] Wright, Program Manager, Docket Operations, telephone 202–366–9826. as being available in the docket, go to BILLING CODE 6360–01–P http://www.regulations.gov, click on the SUPPLEMENTARY INFORMATION: ‘‘read comments’’ box, which will then Public Participation and Request for become highlighted in blue. In the DEPARTMENT OF HOMELAND Comments ‘‘Keyword’’ box insert ‘‘USCG–2010– SECURITY We encourage you to participate in 0518’’ and click ‘‘Search.’’ Click the Coast Guard this rulemaking by submitting ‘‘Open Docket Folder’’ in the ‘‘Actions’’ comments and related materials. All column. You may also visit the Docket 33 CFR Part 100 comments received will be posted Management Facility in Room W12–140 on the ground floor of the Department [Docket No. USCG–2010–0518] without change to http:// www.regulations.gov and will include of Transportation West Building, 1200 RIN 1625–AA08 any personal information you have New Jersey Avenue, SE., Washington, provided. DC 20590, between 9 a.m. and 5 p.m., Special Local Regulations; Sabine Monday through Friday, except Federal River, Orange, TX Submitting Comments holidays. We have an agreement with the Department of Transportation to use AGENCY: Coast Guard, DHS. If you submit a comment, please include the docket number for this the Docket Management Facility. ACTION: Notice of proposed rulemaking. rulemaking (USCG–2010–0518), Privacy Act SUMMARY: The Coast Guard proposes to indicate the specific section of this establish a temporary Special Local document to which each comment Anyone can search the electronic Regulation in the Port Arthur Captain of applies, and provide a reason for each form of comments received into any of the Port Zone on the Sabine River, suggestion or recommendation. You our dockets by the name of the Orange, Texas. This Special Local may submit your comments and individual submitting the comment (or Regulation is intended to restrict vessels material online (via http:// signing the comment, if submitted on from portions of the Sabine River during www.regulations.gov) or by fax, mail, or behalf of an association, business, labor the Thunder on the Sabine boat races. hand delivery, but please use only one union, etc.). You may review a Privacy This Special Local Regulation is of these means. If you submit a Act notice regarding our public dockets necessary to protect spectators and comment online via http:// in the January 17, 2008, issue of the vessels from the hazards associated with www.regulations.gov, it will be Federal Register (73 FR 3316). powerboat races. considered received by the Coast Guard when you successfully transmit the Public Meeting DATES: Comments and related material comment. If you fax, hand deliver, or must be received by the Coast Guard on We do not now plan to hold a public mail your comment, it will be or before August 16, 2010. meeting. But you may submit a request considered as having been received by for one using one of the four methods ADDRESSES: You may submit comments the Coast Guard when it is received at specified under ADDRESSES. Please identified by docket number USCG– the Docket Management Facility. We explain why you believe a public 2010–0518 using any one of the recommend that you include your name meeting would be beneficial. If we following methods: and a mailing address, an e-mail determine that one would aid this (1) Federal eRulemaking Portal: address, or a telephone number in the rulemaking, we will hold one at a time http://www.regulations.gov. body of your document so that we can (2) Fax: 202–493–2251. contact you if we have questions and place announced by a later notice (3) Mail: Docket Management Facility regarding your submission. in the Federal Register. (M–30), U.S. Department of To submit your comment online, go to Background and Purpose Transportation, West Building Ground http://www.regulations.gov, click on the Floor, Room W12–140, 1200 New Jersey ‘‘submit a comment’’ box, which will This temporary special local Avenue, SE., Washington, DC 20590– then become highlighted in blue. In the regulation is necessary to ensure the 0001. ‘‘Document Type’’ drop down menu safety of vessels and spectators from (4) Hand delivery: Same as mail select ‘‘Proposed Rule’’ and insert hazards associated with a powerboat address above, between 9 a.m. and 5 ‘‘USCG–2010–0518’’ in the ‘‘Keyword’’ race. The Captain of the Port has p.m., Monday through Friday, except box. Click ‘‘Search’’ then click on the determined that powerboat races in Federal holidays. The telephone number balloon shape in the ‘‘Actions’’ column. close proximity to watercraft and is 202–366–9329. If you submit your comments by mail or infrastructure pose significant risk to To avoid duplication, please use only hand delivery, submit them in an public safety and property. The likely one of these four methods. See the unbound format, no larger than 81⁄2 by combination of large numbers of ‘‘Public Participation and Request for 11 inches, suitable for copying and recreation vessels, powerboats traveling Comments’’ portion of the electronic filing. If you submit at high speeds, and large numbers of SUPPLEMENTARY INFORMATION section comments by mail and would like to spectators in close proximity to the below for instructions on submitting know that they reached the Facility, water could easily result in serious comments. please enclose a stamped, self-addressed injuries or fatalities. Establishing a FOR FURTHER INFORMATION CONTACT: If postcard or envelope. We will consider special local regulation around the you have questions on this proposed all comments and material received location of the race course will help rule, call or e-mail Mr. Scott Whalen, during the comment period and may ensure the safety of persons and Marine Safety Unit Port Arthur, TX, change the rule based on your property at these events and help Coast Guard; telephone 409–719–5086, comments. minimize the associated risks.

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Discussion of Proposed Rule through broadcast notice to mariners concerning its provisions or options for This proposed temporary special local and Marine Safety Information Bulletin. compliance, please contact Mr. Scott regulation is necessary to ensure the During non-enforcement hours all Whalen, Marine Safety Unit Port Arthur, safety of spectators and vessels during vessels will be allowed to transit TX; telephone (409) 719–5086, e-mail the setup, course familiarization, testing through the safety zone without [email protected]. The Coast permission of the Captain of the Port, and race in conjunction with the Guard will not retaliate against small Port Arthur or a designated Orange, TX, Thunder on the Sabine boat entities that question or complain about representative. Additionally, scheduled races. The powerboat race and this proposed rule or any policy or breaks will be provided to allow waiting associated testing will occur between 8 action of the Coast Guard. vessels to transit safely through the a.m. on September 25, 2010 and 6 p.m. safety zone. Collection of Information on September 26, 2010. The special This proposed rule would call for no local regulation will be enforced daily Small Entities new collection of information under the from 8 a.m. to 6 p.m. on September 25 Under the Regulatory Flexibility Act Paperwork Reduction Act of 1995 (44 and 26, 2010. (5 U.S.C. 601–612), we have considered U.S.C. 3501–3520.). The special local regulation will whether this proposed rule would have encompass all waters of the Sabine a significant economic impact on a Federalism River adjacent to Naval Reserve Center substantial number of small entities. A rule has implications for federalism and Orange, TX public boat ramp. The The term ‘‘small entities’’ comprises under Executive Order 13132, northern boundary will be from the end small businesses, not-for-profit Federalism, if it has a substantial direct ° ′ ″ of Navy Pier One at 30 05 45 N/ organizations that are independently effect on State or local governments and ° ′ ″ 093 43 24 W then easterly to the rivers owned and operated and are not would either preempt State law or eastern shore. The southern boundary is dominant in their fields, and impose a substantial direct cost of a line shoreline to shoreline at latitude governmental jurisdictions with compliance on them. We have analyzed ° ′ ″ 30 05 33 N. All geographic coordinates populations of less than 50,000. this proposed rule under that Order and are North American Datum of 1983 The Coast Guard certifies under 5 have determined that it does not have [NAD 83]. U.S.C. 605(b) that this proposed rule implications for federalism. All persons and vessels shall comply would not have a significant economic with the instructions of the Coast Guard impact on a substantial number of small Unfunded Mandates Reform Act Captain of the Port or the designated on entities. The Unfunded Mandates Reform Act scene patrol personnel. Entry into, This proposed rule would not have a of 1995 (2 U.S.C. 1531–1538) requires transiting, or anchoring within the significant economic impact on a Federal agencies to assess the effects of special local regulation area is substantial number of small entities for their discretionary regulatory actions. In prohibited unless authorized by the the following reasons: (1) This rule will particular, the Act addresses actions Captain of the Port or his designated on only be enforced from 8 a.m. until 6 that may result in the expenditure by a scene representative. For authorization p.m. each day that it is effective; (2) State, local, or tribal government, in the to enter the proposed safety zone, during non-enforcement hours all aggregate, or by the private sector of vessels can contact the Captain of the vessels will be allowed to transit $100,000,000 (adjusted for inflation) or Port’s on scene representative on VHF through the safety zone without having more in any one year. Though this Channel 16 or Vessel Traffic Service to obtain permission from the Captain of proposed rule would not result in such Port Arthur on VHF Channel 65A, by the Port, Port Arthur or a designated an expenditure, we do discuss the telephone at (409) 719–5070, or by representative; and (3) vessels will be effects of this rule elsewhere in this facsimile at (409) 719–5090 allowed to pass through the zone with preamble. Regulatory Analyses permission of the Coast Guard Patrol Commander during scheduled break Taking of Private Property We developed this proposed rule after periods between races and at other This proposed rule would not cause a considering numerous statutes and times when permitted by the Coast taking of private property or otherwise executive orders related to rulemaking. Guard Patrol Commander. have taking implications under Below we summarize our analyses If you think that your business, Executive Order 12630, Governmental based on 13 of these statutes or organization, or governmental Actions and Interference with executive orders. jurisdiction qualifies as a small entity Constitutionally Protected Property Regulatory Planning and Review and that this rule would have a Rights. significant economic impact on it, This proposed rule is not a significant please submit a comment (see Civil Justice Reform regulatory action under section 3(f) of ADDRESSES) explaining why you think it This proposed rule meets applicable Executive Order 12866, Regulatory qualifies and how and to what degree standards in sections 3(a) and 3(b)(2) of Planning and Review, and does not this rule would economically affect it. Executive Order 12988, Civil Justice require an assessment of potential costs Reform, to minimize litigation, and benefits under section 6(a)(3) of that Assistance for Small Entities eliminate ambiguity, and reduce Order. The Office of Management and Under section 213(a) of the Small burden. Budget has not reviewed it under that Business Regulatory Enforcement Order. Fairness Act of 1996 (Pub. L. 104–121), Protection of Children We expect the economic impact of we want to assist small entities in We have analyzed this proposed rule this proposed rule to be so minimal that understanding this proposed rule so that under Executive Order 13045, a full Regulatory Evaluation is they can better evaluate its effects on Protection of Children from unnecessary. The basis of this finding is them and participate in the rulemaking. Environmental Health Risks and Safety that the safety zone will only be in effect If the rule would affect your small Risks. This rule is not an economically for 10 hours each day and notifications business, organization, or governmental significant rule and would not create an to the marine community will be made jurisdiction and you have questions environmental risk to health or risk to

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safety that might disproportionately that this action is one of a category of vessels specifically authorized by the affect children. actions which do not individually or Captain of the Port, Port Arthur or a cumulatively have a significant effect on designated representative. Indian Tribal Governments the human environment. This rule (2) Persons or vessels requiring entry This proposed rule does not have involves the establishment of a special into or passage through must request tribal implications under Executive local regulation. Based on our permission from the Captain of the Port, Order 13175, Consultation and preliminary determination, there are no Port Arthur, or a designated Coordination with Indian Tribal factors in this case that would limit the representative. They may be contacted Governments, because it would not have use of a categorical exclusion under on VHF Channel 13 or 16, or by a substantial direct effect on one or section 2.B.2 of the Instruction. telephone at (409) 723–6500. more Indian tribes, on the relationship Therefore, we believe that this rule (3) All persons and vessels shall between the Federal Government and should be categorically excluded. comply with the instructions of the Indian tribes, or on the distribution of Because this event establishes a special Captain of the Port, Port Arthur, power and responsibilities between the local regulation, paragraph (34)(h) of designated representatives and Federal Government and Indian tribes. figure 2–1 of the Instruction applies. designated on-scene U.S. Coast Guard Energy Effects Thus, no further environmental patrol personnel. On-scene U.S. Coast documentation is required. We seek any Guard patrol personnel include We have analyzed this proposed rule comments or information that may lead commissioned, warrant, and petty under Executive Order 13211, Actions to the discovery of a significant officers of the U.S. Coast Guard. Concerning Regulations That environmental impact from this Dated: June 3, 2010. Significantly Affect Energy Supply, proposed rule. Distribution, or Use. We have J.J. Plunkett, determined that it is not a ‘‘significant List of Subjects in 33 CFR Part 100 Captain, U.S. Coast Guard, Captain of the energy action’’ under that order because Marine safety, Navigation (water), Port, Port Arthur. it is not a ‘‘significant regulatory action’’ Reporting and recordkeeping [FR Doc. 2010–17115 Filed 7–14–10; 8:45 am] under Executive Order 12866 and is not requirements, Waterways. BILLING CODE 9110–04–P likely to have a significant adverse effect For the reasons discussed in the on the supply, distribution, or use of preamble, the Coast Guard proposes to energy. The Administrator of the Office amend 33 CFR part 100 as follows: ENVIRONMENTAL PROTECTION of Information and Regulatory Affairs AGENCY has not designated it as a significant PART 100—SAFETY OF LIFE ON energy action. Therefore, it does not NAVIGABLE WATERS 40 CFR Parts 257, 261, 264, 265, 268, require a Statement of Energy Effects 271 and 302 under Executive Order 13211. 1. The authority citation for part 100 continues to read as follows: [EPA–HQ–RCRA–2009–0640; FRL–9175–4] Technical Standards Authority: 33 U.S.C. 1233. RIN 2050–AE81 The National Technology Transfer 2. Add a new temporary § 100.35T08– Hazardous and Solid Waste and Advancement Act (NTTAA) (15 0518 to read as follows: U.S.C. 272 note) directs agencies to use Management System; Identification voluntary consensus standards in their § 100.35T08–0518 Safety Zone; Sabine and Listing of Special Wastes; regulatory activities unless the agency River, Orange, TX. Disposal of Coal Combustion provides Congress, through the Office of (a) Definitions. As used in this section Residuals From Electric Utilities Management and Budget, with an ‘‘Participant Vessel’’ means all vessels AGENCY: explanation of why using these registered with event officials to race or Environmental Protection standards would be inconsistent with work in the event. These vessels include Agency (EPA). applicable law or otherwise impractical. race boats, rescue boats, tow boats, and ACTION: Announcement of public Voluntary consensus standards are picket boats associated with the race. hearings. technical standards (e.g., specifications (b) Location. The following area is a SUMMARY: On June 21, 2010, EPA of materials, performance, design, or safety zone: all waters of the Sabine proposed to regulate the disposal of coal operation; test methods; sampling River, shoreline to shoreline, adjacent to combustion residuals generated from procedures; and related management the Naval Reserve Unit and the Orange the combustion of coal at electric systems practices) that are developed or public boat ramps located in Orange, utilities and by independent power adopted by voluntary consensus TX. The northern boundary is from the producers. Given the significant public standards bodies. end of Navy Pier One at 30°05′45″ N/ This proposed rule does not use 093°43′24″ W then easterly to the rivers interest in this proposed rule and to technical standards. Therefore, we did eastern shore. The southern boundary is further public participation not consider the use of voluntary a line shoreline to shoreline at latitude opportunities, EPA is announcing five consensus standards. 30°05′33″ N. public hearings to be held in cities (c) Effective Period. This regulation is across the United States. The hearings Environment effective from 8 a.m. on September 25, will provide the public with an We have analyzed this proposed rule 2010, to 6 p.m. on September 26, 2010. opportunity to present data, views or under Department of Homeland This regulation will be enforced daily arguments concerning the proposed Security Management Directive 023–01 from 8 a.m. until 6 p.m. on September rule. The public hearings will take place and Commandant Instruction 25 and 26, 2010. in Arlington, Virginia; Denver, M16475.lD, which guide the Coast (d) Regulations. Colorado; Dallas, Texas; Charlotte, Guard in complying with the National (1) In accordance with the general North Carolina; and Chicago, Illinois. Environmental Policy Act of 1969 regulations in § 100.35 of this part, entry DATES: A public hearing will be (NEPA) (42 U.S.C. 4321–4370f), and into this zone is prohibited to all vessels conducted in Arlington, Virginia, on have made a preliminary determination except participant vessels and those August 30, 2010; Denver, Colorado, on

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September 2, 2010; Dallas, Texas, on 5304P, Washington, DC 20460; concerning the proposed rule. EPA may September 8, 2010; Charlotte, North telephone number (703) 308–8449; e- ask clarifying questions during the oral Carolina, on September 14, 2010; and mail address [email protected]. presentations, but will not respond Chicago, Illinois, on September 16, Questions concerning the proposed rule formally to any comments or the 2010. Persons who wish to present oral should be addressed to. Alexander presentations made. testimony at one or more of the public Livnat, Office of Resource Conservation Each public hearing will consist of hearings must preregister at least three and Recovery, U.S. Environmental three sessions, a morning session business days prior to the hearing. The Protection Agency, 5304P; 1200 starting at 10 a.m. (local time) and last day to preregister will be August 25, Pennsylvania Ave., NW., Washington ending at noon, an afternoon session 2010, for the Arlington, Virginia, public DC 20460, telephone number: (703) starting at 1 p.m., and ending at 5 p.m., hearing; August 30, 2010, for the 308–7251, e-mail address: and an evening session beginning at Denver, Colorado, public hearing; [email protected], or Steve 6:30 and ending at 9 p.m. or later, if September 2, 2010, for the Dallas, Texas, Souders, Office of Resource necessary, depending on the number of public hearing; September 9, 2010, for Conservation and Recovery, U.S. speakers that preregister for the hearing. the Charlotte, North Carolina, public Environmental Protection Agency, If you would like to present oral hearing; and September 13, 2010, for the 5304P; 1200 Pennsylvania Ave., NW., testimony at the hearing, please Chicago, Illinois, public hearing. The Washington DC 20460, telephone preregister at the following Web site: preregistration cut-off time is 5 p.m. number: (703) 308–8431, e-mail address: http://www.epa.gov/epawaste/nonhaz/ Eastern Daylight Time (EDT) on the [email protected]. industrial/special/fossil/ccr-rule/ccr- form.htm. If you would like to present final day of preregistration for the five SUPPLEMENTARY INFORMATION: The public hearings. See SUPPLEMENTARY oral testimony and are unable to proposed rule was published in the preregister at this Web site, please INFORMATION for information on how to Federal Register on June 21, 2010 (75 register. contact either Bonnie Robinson or FR 35128). Additional information on Elaine Eby at the addresses given above ADDRESSES: The public hearings will be the proposed rule can be found at http:// under FOR FURTHER INFORMATION held at the following locations: www.epa.gov/coalashrule. (Note: The CONTACT prior to the close of the Arlington, VA—August 30, 2010, Hyatt Agency will shortly be publishing in the preregistration period. Note that you Regency, 2799 Jefferson Davis Federal Register several administrative only need to preregister if you wish to Highway, Arlington, VA 22202, corrections that are needed to the June present oral testimony. That is, you do Phone: (703) 418–1234, 21, 2010 print publication of the not have to preregister in order to http://www.crystalcity.hyatt.com. proposed rule. An unofficial pre- observe the public hearing or to submit Denver, CO—September 2, 2010, Grand publication version of the corrected only a written statement (see below). Hyatt, 1750 Welton Street, Denver, CO proposed rule and a summary of the The Agency encourages, however, all 80202, Phone: (303) 295–1234, administrative corrections made to the persons planning to attend one or more http://www.granddenver.hyatt.com. rule is available at http://www.epa.gov/ of the public hearings to preregister for Dallas, TX—September 8, 2010, Hyatt coalashrule in the meantime.) it, which will facilitate the planning of Regency Dallas, 300 Reunion On June 21, 2010, EPA proposed to the event. As noted above, Boulevard, Dallas, TX 75207, Phone: establish regulatory requirements preregistration closes at 5 p.m. EDT (214) 651–1234, applicable to the disposal of coal three business days prior to each public http://www.dallasregency.hyatt.com. combustion residuals, commonly hearing. If you do not preregister by the Charlotte, NC—September 14, 2010, known as coal ash, generated from the deadline and wish to provide oral Holiday Inn Charlotte (Airport), 2707 combustion of coal at electric utilities testimony, EPA may allow, if time Little Rock Road, Charlotte, NC and by independent power producers. permits, some or all unregistered 28214, Phone: (704) 394–4301, These regulations were proposed under persons to present oral testimony at the http://www.hicharlotteairport.com. the authority of sections 1008(a), public hearing. EPA will consider such Chicago, IL—September 16, 2010, 2002(a), 3001, 3004, 3005, and 4004 of requests on a first-come, first-served Hilton Chicago, 720 South Michigan the Solid Waste Disposal Act of 1970, as basis on the day of the public hearing, Avenue, Chicago, IL 60605, Phone: amended by the Resource Conservation according to the time available. (312) 922–4400, and Recovery Act of 1976 (RCRA), as If you wish to submit only a written http://www.chicagohilton.com/ amended by the Hazardous and Solid statement at the public hearing (that is, hotels__hiltonchicago.aspx. Waste Amendments of 1984 (HSWA), 42 you do not want to present oral U.S.C. 6907(a), 6912(a), 6921,6924, 6925 testimony), EPA officials will accept For additional details on the public and 6944. These statutes, combined, are such written statements at the morning, hearings please see SUPPLEMENTARY commonly referred to as ‘‘RCRA.’’ afternoon, and evening sessions. EPA INFORMATION. Several of these statutory provisions will place such statements in the docket FOR FURTHER INFORMATION CONTACT: If require that EPA offer the public an to the rulemaking and will consider you have questions concerning the ‘‘opportunity for a hearing’’ as part of the your statement as part of the rulemaking public hearing, please contact Bonnie process for adopting a final requirement. record. You do not need to preregister Robinson, Office of Resource See, e.g., 42 U.S.C. 6907(a), for the hearing if you wish only to Conservation and Recovery, U.S. 6921(b)(1)(C)(3)(C). submit a written statement; however, as Environmental Protection Agency, 1200 To date, EPA has received a previously stated, preregistration is Pennsylvania Ave., NW., Mailcode submission requesting multiple hearings encouraged. 5304P, Washington, DC 20460; on the proposed rule, and given the Oral testimony will be limited to 3 telephone number (703) 308–8429; e- significant public interest in this rule, minutes for each person to address the mail address: [email protected] EPA is announcing five public hearings proposed rule. We will not be providing or Elaine Eby, Office of Resource to be held in cities across the United equipment for persons to show Conservation and Recovery, U.S. States. The public hearings will provide overhead slides or make computerized Environmental Protection Agency, 1200 interested parties the opportunity to slide presentations. EPA encourages Pennsylvania Ave., NW., Mailcode present data, views, or arguments each person to provide two copies of

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their oral testimony either electronically 14 West Longitude. See Supplementary Commission proposes to amend 47 CFR or computer disk, CD–ROM, or paper Information infra. Part 73 as follows: copy at the public hearing. Verbatim DATES: The deadline for filing comments transcripts of the public hearings and is August 16, 2010. Reply comments PART 73—RADIO BROADCAST written statements will be included in must be filed on or before August 31, SERVICES the docket to this rulemaking. 2010. 1. The authority citation for Part 73 Any person needing special ADDRESSES: Federal Communications continues to read as follows: accommodations at the public hearings, Commission, 445 12th Street, SW., Authority: 47 U.S.C. 154, 303, 334, 336. including wheelchair access or sign Washington, DC 20554. In addition to language translation, should contact filing comments with the FCC, § 73.202 [Amended] Bonnie Robinson or Elaine Eby at the interested parties should serve counsel 2. Section 73.202(b), the Table of FM addresses given above under FOR for petitioner as follows: J. Dominic Allotments under Oregon, is amended FURTHER INFORMATION CONTACT at least Monahan, Esq., Forum Building, 777 by adding Gearhart, Channel 243A. five business days in advance of the High Street–Suite 300, Post Office Box Federal Communications Commission. public hearing. 10747, Eugene, Oregon 97401. Finally, in addition to today’s public John A. Karousos, FOR FURTHER INFORMATION CONTACT: hearing announcement, EPA will be Deborah A. Dupont, Media Bureau (202) Assistant Chief, Audio Division, Media Bureau. maintaining a Web site providing the 418–7072. most up-to-date information on these [FR Doc. 2010–17300 Filed 7–14–10; 8:45 am] SUPPLEMENTARY INFORMATION: This is a public hearings. See http:// BILLING CODE 6712–01–P synopsis of the Commission’s Notice of www.epa.gov/epawaste/nonhaz/ Proposed Rule Making, MB Docket No. industrial/special/fossil/ccr-rule/ccr- 10–118, adopted June 10, 2010, and hearing.htm. Those persons planning to released June 14, 2010. The full text of DEPARTMENT OF COMMERCE participate in the public hearing this Commission decision is available process, either by providing oral National Oceanic and Atmospheric for inspection and copying during testimony or observing the hearing, are Administration normal business hours in the FCC urged to visit this Web site at least two Reference Information Center (Room days prior to the date of the each public 50 CFR Part 679 CY–A257), 445 12th Street, SW., hearing to determine if there are any Washington, DC 20554. The complete [Docket No. 0911031392–91399–01] relevant announcements or changes text of this decision may also be RIN 0648–AY34 related to the hearing. purchased from the Commission’s copy Dated: July 8, 2010. contractor, Best Copy and Printing, Inc., Fisheries of the Exclusive Economic Suzanne Rudzinski, 445 12th Street, SW., Room CY–B402, Zone Off Alaska; Bering Sea Subarea Acting Director, Office of Resource Washington, DC 20554, (800) 378–3160, Conservation and Recovery. or via the company’s Web site, http:// AGENCY: National Marine Fisheries [FR Doc. 2010–17143 Filed 7–14–10; 8:45 am] www.bcpiweb.com. This document does Service (NMFS), National Oceanic and BILLING CODE 6560–50–P not contain proposed information Atmospheric Administration (NOAA), collection requirements subject to the Commerce. Paperwork Reduction Act of 1995, ACTION: Proposed rule; request for FEDERAL COMMUNICATIONS Public Law 104–13. In addition, comments. COMMISSION therefore, it does not contain any proposed information collection burden SUMMARY: NMFS issues a proposed rule 47 CFR Part 73 ‘‘for small business concerns with fewer that would implement Amendment 94 than 25 employees,’’ pursuant to the to the Fishery Management Plan for [DA 10–1060; MB Docket No. 10–118; RM– Groundfish of the Bering Sea and 11603]. Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. Aleutian Islands Management Area Radio Broadcasting Services; 3506 (c)(4). (FMP). Amendment 94, if approved, Gearhart, OR The Provisions of the Regulatory would require participants using Flexibility Act of 1980 do not apply to nonpelagic trawl gear in the directed AGENCY: Federal Communications this proceeding. Members of the public fishery for flatfish in the Bering Sea Commission. should note that from the time a Notice subarea to modify the trawl gear to raise ACTION: Proposed rule. of Proposed Rule Making is issued until portions of the gear off the ocean the matter is no longer subject to bottom. Amendment 94 also would SUMMARY: This document sets forth a Commission consideration or court change the boundaries of the Northern proposal to amend the FM Table of review, all ex parte contacts are Bering Sea Research Area to establish Allotments, Section 73.202(b) of the prohibited in Commission proceedings, the Modified Gear Trawl Zone (MGTZ) Commission’s rules, 47 CFR Section such as this one, which involve channel and to expand the Saint Matthew Island 73.202(b). The Commission requests allotments. See 47 CFR 1.1204(b) for Habitat Conservation Area. Nonpelagic comment on a petition filed by Black rules governing permissible ex parte trawl gear also would be required to be Hills Broadcasting, L.P. proposing the contacts. modified to raise portions of the gear off allotment of FM Channel 243A as the For information regarding proper the ocean bottom if used in any directed first local service at Gearhart, Oregon. filing procedures for comments, see 47 fishery for groundfish in the proposed The channel can be allotted at Gearhart CFR 1.415 and 1.420. MGTZ. This action is necessary to in compliance with the Commission’s reduce potential adverse effects of minimum distance separation List of Subjects in 47 CFR Part 73 nonpelagic trawl gear on bottom habitat, requirements with a site restriction of Radio, Radio broadcasting. to protect additional blue king crab 8.2 km (5.1 miles) south of Gearhart, at For the reasons discussed in the habitat near St. Matthew Island, and to 45–57–11 North Latitude and 123–56– preamble, the Federal Communications allow for efficient flatfish harvest as the

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distribution of flatfish in the Bering Sea Stevens Fishery Conservation and Modified Nonpelagic Trawl Gear changes. This action is intended to Management Act (Magnuson-Stevens Nonpelagic trawl gear uses a pair of promote the goals and objectives of the Act). Regulations implementing the long lines called sweeps to herd fish Magnuson-Stevens Fishery FMP appear at 50 CFR part 679. General into the net. These lines drag across the Conservation and Management Act, the regulations governing U.S. fisheries also bottom and may adversely impact FMP, and other applicable laws. appear at 50 CFR part 600. benthic organisms (e.g., crab species, sea DATES: Written comments must be The Council submitted Amendment whips, sponges, and basket stars). received by August 30, 2010. 94 for review by the Secretary of Approximately 90 percent of the bottom ADDRESSES: Send comments to Sue Commerce, and a notice of availability contact of nonpelagic trawl gear used to Salveson, Assistant Regional of Amendment 94 was published in the target flatfish is from the sweeps, which Administrator, Sustainable Fisheries Federal Register on June 29, 2010, with can be more than 1,000 feet (304.8 m) Division, Alaska Region, NMFS, Attn: comments on Amendment 94 invited in length. Based on research by the Ellen Sebastian. You may submit through August 30, 2010 (75 FR 37371). Alaska Fisheries Science Center (AFSC), comments, identified for this action by Comments may address Amendment 94 NMFS and described in the EA/RIR/ 0648–AY34 (PR), by any one of the or this proposed rule, but must be IRFA (see ADDRESSES), nonpelagic trawl following methods: received by 1700 hours, A.D.T. on gear can be modified to raise the sweeps • Electronic Submissions: Submit all August 30, 2010 to be considered in the off the bottom to reduce potential electronic public comments via the approval/disapproval decision on adverse effects on bottom habitat while Federal eRulemaking Portal at http:// Amendment 94. All comments received maintaining effective catch rates for www.regulations.gov. flatfish target species in sand and mud • Mail: P.O. Box 21668, Juneau, AK by that time, whether specifically directed to Amendment 94, or to this bottom habitat. AFSC studies comparing 99802. nonpelagic trawl gear to modified • proposed rule, will be considered in the Fax: (907) 586–7557. nonpelagic trawl gear show that the • approval/disapproval decision on Hand delivery to the Federal modified nonpelagic trawl gear reduces Amendment 94. Building: 709 West 9th Street, Room mortality and disturbance of sea whips, 420A, Juneau, AK. Background basket stars, sponges, and crab species. No comments will be posted for The studies further show that modified public viewing until after the comment If approved by NMFS, Amendment 94 nonpelagic trawl gear does not period has closed. All comments would require participants in the significantly reduce catch rates of received are a part of the public record directed fishery for flatfish in the Bering flatfish species. In 2008 and 2009, the and will generally be posted to Sea subarea to use modified nonpelagic AFSC and NOAA Office for Law www.regulations.gov without change. trawl gear. It also would change the Enforcement worked with the fishing All Personal Identifying Information boundaries of the Northern Bering Sea industry to test the modified nonpelagic (e.g., name, address) voluntarily Research Area (NBSRA) to establish the trawl gear under normal fishing submitted by the commenter may be MGTZ, and would expand the Saint conditions and determined that this gear publicly accessible. Do not submit Matthew Island Habitat Conservation can be safely used and efficiently Confidential Business Information or Area (SMIHCA). Four minor technical inspected. Details of the development of otherwise sensitive or protected changes to the FMP also would be the modified nonpelagic trawl gear are information. made, three of which do not result in in the EA/RIR/IRFA for this action (see NMFS will accept anonymous regulatory changes. Details on these ADDRESSES). comments (enter N/A in the required The Council recommended that fields, if you wish to remain minor technical changes are in the EA/ nonpelagic trawl gear used in the Bering anonymous). You may submit RIR/IRFA for this action (see Sea flatfish fishery or in the MGTZ be attachments to electronic comments in ADDRESSES) and in the notice of modified by adding elevating devices to Microsoft Word, Excel, WordPerfect, or availability for Amendment 94 a portion of the trawl gear that contacts Adobe PDF file formats only. published in the Federal Register on the bottom, including sweeps and Electronic copies of Amendment 94, June 29, 2010 (75 FR 37371). One minor portions of the net bridles. Some gear maps of the action area, and the technical amendment for the NBSRA configurations may have long net Environmental Assessment/Regulatory would require a regulatory amendment bridles that make up a substantial Impact Review/Initial Regulatory and is further explained below. portion of the gear’s bottom contact. The Flexibility Analysis (EA/RIR/IRFA) In October 2009, the Council elevating devices are any kind of a prepared for this action may be obtained unanimously adopted Amendment 94. device that raises the sweeps or net from www.regulations.gov or from the Modifying nonpelagic trawl gear was bridles off the bottom (e.g., bobbins, Alaska Region Web site at http:// considered with the Council’s discs). The modified nonpelagic trawl alaskafisheries.noaa.gov. The EA for development of Amendment 89 to the gear would have to be constructed and Amendment 89, which contains FMP (73 FR 43362, July 25, 2008). maintained to meet three gear standards information referenced in this proposed Amendment 89 established the Bering for elevating devices: location, rule, is available from the Alaska Region Sea Habitat Conservation Measures, clearance, and spacing. These standards Web site at http:// closing portions of the Bering Sea are intended to allow flexibility in the alaskafisheries.noaa.gov. subarea to nonpelagic trawling and construction of the modified gear, while FOR FURTHER INFORMATION CONTACT: establishing the NBSRA and SMIHCA. ensuring the gear functions in a manner Melanie Brown, 907–586–7228. The Council adopted Amendment 89 in that would reduce the potential adverse SUPPLEMENTARY INFORMATION: The June 2007, but developed the modified impacts of the nonpelagic trawl gear on Bering Sea groundfish fisheries are nonpelagic trawl gear action separately benthic organisms, as demonstrated in managed under the FMP. In 1981, the through subsequent coordination with the AFSC studies described above. North Pacific Fishery Management NMFS, the United States Coast Guard, The first proposed standard would Council (Council) prepared the FMP and the nonpelagic trawl fishing apply to the location of the elevating under the authority of the Magnuson- industry. devices on the gear. Proposed Figure 26

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to part 679 shows a diagram of the elevating device. The size of the measurements made as directed in modified nonpelagic trawl gear, elevating devices would likely depend proposed Figure 27 to part 679 would including identification of the parts of on the type of equipment used to provide information to determine the the gear. The portion of the gear where retrieve and deploy the gear, the size of minimum clearance needed when the elevating devices would be required is elevating devices available, and the cost supporting material for the elevating identified as the elevated section shown of the gear. device has a larger cross section than in the proposed Figure 26. The elevated Proposed Figure 25 to part 679 shows the cross section of the line between section is identified in proposed Figure locations for measuring the clearance of elevating devices. 26 both for gear using, and for gear not a variety of elevating devices and While the proposed clearance using, headline extensions from the net methods used to attach the elevating standard does not directly measure the to provide flexibility in the construction devices to the sweeps and net bridles. distance between the seafloor and the of the modified gear. A vessel would be Proposed Figure 25 to part 679 should sweep during fishing—such distance required to place elevating devices on be used as a reference to ensure may be affected by the devices pressing the sweeps beginning no more than 180 identification of the correct location for into the substrate and the sag of the feet (54.9 m) from the door bridles and measuring compliance with the sweeps between devices—the clearance ending at the connection of the net clearance standard, regardless of the standard would provide an objective bridles to the sweeps, if the net bridles methods and materials used to construct measurement that could be compared to are 180 feet (54.9 m) or less in length. and maintain the gear. the elevation gained by devices used If the net bridles are longer than 180 feet The proposed regulations also would during AFSC studies. The AFSC- (54.9 m), then the elevating devices prohibit the cross section of the line modified nonpelagic trawl gear studies would be required on the bottom net between elevating devices from being show that 3 inches (7.6 cm) of clearance bridle ending 180 feet (54.9 m) before greater than the cross section of the for elevating devices spaced 60 feet the net attachment to the net bridles. material at the nearest measurement (18.3 m) apart, and 4 inches (10.2 cm) Elevating devices would not be required location. This would prevent the use of of clearance for elevating devices spaced on the 180-foot (54.9 m) portion of the line material of a larger cross section 90 feet (27.4 m) apart, reduced effects on bottom lines adjacent to the door bridle than the material at the measurement benthic organisms. To allow for a minor and the portion of the net bridle less location, which would likely result in amount of wear of the elevating devices than 180 feet (54.9 m), because these not achieving the clearance intended but to ensure clearances similar to those locations either do not contact the with the gear standards as shown in used in the AFSC studies, the proposed bottom, or the elevating devices in these proposed Figures 25 and 27 to part 679. clearance standard would be based on locations may interfere with the Portions of the line between elevating 2.5 inches (6.4 cm) and 3.5 inches (8.9 devices that are doubled for section handling of the gear. This 180-foot (54.9 cm). terminations, or used for line-joining The third proposed gear standard m) elevating device allowance for the devices, would not be required to be a would require spacing the elevating net bridles provides some flexibility in smaller cross section than the measuring devices at a minimum of 30 feet (9.1 m) the construction of the gear as net location. This would allow some and a maximum of 95 feet (29 m), bridles are typically between 90 feet flexibility for the construction and depending on the clearance provided by (27.4 m) and 200 feet (61 m). Some maintenance of the gear while ensuring the elevating devices. The minimum vessels may use pelagic doors, which that most, if not all, of the line between distance between elevating devices is are likely to lift up to 180 feet (54.9 m) elevating devices provides the intended necessary to ensure no more contact of of the sweep off the bottom; therefore clearance. To ensure sufficient strength the elevating devices occurs than is the 180-foot (54.9 m) elevating device in the joining of line sections, necessary to provide clearance from the allowance at the door end of the gear supporting material used for the bottom. Elevating devices that provide would ensure elevating devices are not elevating devices may need to be a more clearance allow for greater required where the gear is not likely to greater cross section than the cross distance between the elevating devices. contact the bottom. These 180-foot (54.9 section of the line material between The AFSC studies determined that m) allowances would result in elevating devices. To ensure this larger spacing the devices at 60 feet (18.3 m), approximately two to four fewer cross section of the supporting material with a clearance of less than 3.5 inches elevating devices being used on part of is accounted for in measuring the (8.9 cm) produced similar reductions in this portion of gear that may contact the clearance, the proposed regulations impacts to benthic organisms as spacing bottom. The locations of the elevating would include equations to reduce the the elevating devices at 90 feet (27.4 m) devices were recommended to the required minimum clearance at the with more than 3.5 inches (8.9 cm) of Council by the AFSC in consultation measuring points in proposed Figure 25 clearance. The spacing standard would with the fishing industry. The Council to part 679 by one half the portion of the require that if the elevating devices determined that the recommended supporting material cross section that is provide more than 3.5 inches (8.9 cm) locations were appropriate to raise the greater than the cross section of the line of clearance, the devices must be spaced sweeps and any bottom lines beyond the material between elevating devices. at least 30 feet (9.1 m) and no more than 180-foot (54.9 m) allowances, while not Using these equations would ensure that 95 feet (29 m) apart. If the elevating requiring more elevating devices than the additional elevation provided by devices provide between 2.5 inches (6.4 would be necessary to achieve results supporting material with a cross section cm) and 3.5 inches (8.9 cm) of similar to the AFSC-modified larger than the line material would be clearance, the devices must be spaced at nonpelagic trawl gear studies. credited towards meeting the minimum least 30 feet (9.1 m) and no more than The second proposed gear standard clearance required as measured per 65 feet (19.8 m) apart. The additional 5 would require that elevating devices proposed Figure 25 to part 679. Figure feet (1.5 m) in the spacing standard provide a minimum clearance of 2.5 27 would be added to 50 CFR part 679 compared to the spacing used in the inches (6.4 cm). Clearance is the to show the measurement locations to AFSC studies would allow for minor separation that a device creates between determine the cross sections of the line movement of the elevating devices the sweep or net bridle and a parallel material, and of the supporting material during use, as well as for minor hard surface, measured adjacent to the for the elevating devices. Cross section amounts of extra spacing that may occur

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from gear construction and elevating devices on the gear in this gear. The NBSRA was established under maintenance. This would allow some manner would elevate the majority of Amendment 89 (73 FR 43362, July 25, flexibility in the construction and the gear similar to the elevation used in 2008) to provide a location with little to maintenance of the gear, while reducing the AFSC research and allow for no nonpelagic trawling for the purpose impacts to a similar degree as seen in operational and maintenance of studying the effects of nonpelagic the AFSC-modified nonpelagic trawl efficiencies for the vessel operators. trawling on bottom habitat. The gear studies. Manufacturers of the Boundary Changes of Specific Areas SMIHCA also was established under modified nonpelagic trawl gear likely Amendment 89 to protect blue king crab Proposed Amendment 94 would would place the elevating devices at 60 include boundary changes to areas with habitat from the potential impacts of feet (18.3 m) and 90 feet (27.4 m) nonpelagic trawl gear restrictions in the nonpelagic trawl gear. Figure 1 shows spacing as the devices would likely be Bering Sea subarea. Amendment 94 and the current southern boundary of the mounted where sections of line are this proposed rule would reduce the NBSRA, and how this boundary would joined, and the line is available in 90 NBSRA to establish the MGTZ and to change with the proposed revision to feet (27.4 m) lengths. By working with increase the SMIHCA (Figure 1). The the SMIHCA eastern border and with the nonpelagic trawl fishing industry, NBSRA and the SMIHCA are currently the proposed MGTZ. the AFSC determined that locating the closed to fishing with nonpelagic trawl BILLING CODE 3510–22–P

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BILLING CODE 3510–22–C

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The Council recommended moving local area resources, and stock survey species, with little Pacific halibut the eastern boundary of the SMIHCA, information. The geographic coordinates occurrence. This area would provide the parallel to the current boundary, to the designating the northern boundary of opportunity to fish for flatfish resources eastern edge of the 12-nautical mile the MGTZ follow the whole number with little potential for Pacific halibut (nm) Territorial Sea surrounding Saint latitude to facilitate mapping and bycatch. The opportunity for directed Matthew Island. NMFS’ annual trawl management in the area, and includes fishing for flatfish in the MGTZ is surveys from 2007 through 2009 have the area identified by the fishing important to the fishing industry found blue king crab in the area east of industry as an important location for because of the low abundance of Pacific the SMIHCA out to the edge of the 12- flatfish resources. Based on public halibut in this area, and the potential nm Territorial Sea. Based on this testimony in October 2009, the Council movement of the flatfish species information, the Council’s Crab Plan recommended the proposed eastern distribution farther north under Team recommended moving the eastern boundary of the MGTZ, to create a changing ocean conditions. The boundary of the SMIHCA to the eastern buffer between flatfish fishing and the reopening of the MGTZ to fishing with extent of the 12-nm Territorial Sea. Nunivak Island, Etolin Strait, modified nonpelagic trawl gear was an Expanding the SMIHCA based on the Kuskokwim Bay Habitat Conservation incentive to the fishing industry to best available information would ensure Area, a location important for continue the development of modified the SMIHCA meets the Council’s intent subsistence activities that was nonpelagic trawl gear after the Council’s to protect blue king crab habitat east of established under Amendment 89 (73 recommendation of Amendment 89. Saint Matthew Island. The Council also FR 43362, July 25, 2008). The southern recommended that the eastern border of boundary of the MGTZ matches the The minor technical change to the the SMIHCA meet the western border of current boundary of the NBSRA, FMP that requires a regulatory change is the proposed MGTZ, so that no portion allowing for fishing in the MGTZ in the revision to the northern boundary of of the NBSRA would lie between these waters adjacent to the portion of the the NBSRA to match the southern areas, thus simplifying management. Bering Sea subarea currently open to boundary of Statistical Area 400 at the This common boundary also would lie nonpelagic trawl fishing. Nonpelagic Bering Strait. Area 514 of the Bering Sea along a division in habitat types, with trawling within the MGTZ would subarea extends north to the southern the habitat in the western side of the require the use of modified nonpelagic boundary of Area 400 (Figure 2). The proposed MGTZ more favorable to trawl gear, regardless of the target coordinates of the current northern flatfish species and the habitat in the species. Because the MGTZ is currently boundary of the NBSRA are incorrectly eastern side of the proposed revised closed to nonpelagic trawling, the described in Table 43 to part 679, and SMIHCA more favorable to crab species. Council recommended mitigating any leave an area open to nonpelagic Detailed information regarding NMFS’ potential effects from nonpelagic trawling near the Bering Strait. The resource surveys and bottom habitats of trawling by requiring that all nonpelagic Council intended for the entire northern the SMIHCA and the proposed MGTZ trawl fishing gear used in the MGTZ portion of the Bering Sea subarea to be are in the EA/RIR/IRFA for this meet the standards proposed here for part of the NBSRA. This minor technical proposed action (see ADDRESSES). modified nonpelagic trawl gear. The amendment would close this area, The proposed boundaries of the AFSC surveys in the western portion of which is currently open to nonpelagic MGTZ are based on management goals, the MGTZ show primarily flatfish trawling.

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Proposed Regulatory Amendments use of modified nonpelagic trawl gear apply to vessels that are directed fishing The Council recommended, and the for the directed flatfish fishery in the for flatfish based on a fishing trip and Secretary proposes, the following Bering Sea subarea under proposed the species composition of the catch, as regulatory changes and additions to 50 § 679.7(c)(5), and would list the species described in the proposed definition for CFR part 679 to implement Amendment that are flatfish for purposes of the directed fishing for flatfish. The fishing 94. modified nonpelagic trawl gear trip definition also applies to 1. Section 679.2 would be revised to requirement. The definition for recordkeeping and reporting add a definition for the MGTZ, and to ‘‘federally permitted vessels’’ would be requirements in § 679.5. Under this add text to several definitions to support revised to include the fishery proposed rule, the heading for the first the requirement to use nonpelagic trawl restrictions that would be established definition of a fishing trip would be gear that has been modified to meet the for the MGTZ, and for modified revised to add ‘‘recordkeeping and gear standards that would be specified nonpelagic trawl gear fishing in the reporting requirements under § 679.5’’ to at § 679.24. The definition for ‘‘directed Bering Sea subarea. This revision would reflect the full scope of the current fishing’’ would be revised by adding a identify vessels that would need to application of this definition in 50 CFR subparagraph specific to directed comply with the modified nonpelagic part 679. A definition for the ‘‘Modified fishing for flatfish in the Bering Sea trawl gear requirements. The definition Gear Trawl Zone’’ would be added to subarea. This revision would require the for ‘‘fishing trip’’ would be revised to define this proposed fishery

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management area consistent with other 6. Section 679.22 lists the closure describes the economic impact this fishery management area definitions areas for the Alaska groundfish proposed rule, if adopted, would have and for use under the proposed revised fisheries. Because the MGTZ would be on small entities. Descriptions of the definition for ‘‘federally permitted closed to nonpelagic trawling, except for action, the reasons it is under vessels.’’ directed fishing with modified consideration, and its objectives and 2. Subparagraph (5) would be added nonpelagic trawl gear, this section legal basis, are included at the to § 679.7(c) to prohibit directed fishing would be revised to add the MGTZ. This beginning of this section in the for Bering Sea flatfish without modified revision is necessary to identify the preamble and in the summary section of nonpelagic trawl gear that meets the area, and the gear type that would be the preamble. A summary of the standards specified at proposed required in this area. analysis follows. A copy of this analysis § 679.24(f). This revision is needed to 7. Paragraph (f) would be added to is available from NMFS (see require the use of modified nonpelagic § 679.24 to establish enforceable ADDRESSES). trawl gear for directed fishing for flatfish standards for modified nonpelagic trawl The proposed action would: Require in the Bering Sea subarea, for directed gear. The standards would include a nonpelagic trawl vessels targeting fishing for groundfish with nonpelagic minimum clearance for the sweeps, and flatfish in the Bering Sea subarea to use trawl gear within the MGTZ, and to a minimum and maximum distance elevating devices on trawl sweeps to ensure the modified nonpelagic trawl between elevating devices, depending raise them off the seafloor; adjust the gear meets the standards specified at on the clearance provided by the southern boundary of the NBSRA to § 679.24(f). Subparagraphs (3) and (4) elevating devices. The standards also exclude the MGTZ; and provide would be added and reserved to allow would describe the measuring locations additional closure area to the SMIHCA. for future rulemaking recommended by to determine compliance with the Any person fishing with nonpelagic the Council for Pacific cod fishing in the clearance requirement and cross section trawl gear in the MGTZ would be BSAI parallel fisheries. If approved, the limitations for the line between required to use the modified nonpelagic Pacific cod parallel fishery rulemaking elevating devices. This revision is trawl gear that meets the gear standards. is likely to be effective before necessary to ensure that standards are Amendment 94 would adjust the rulemaking for Amendment 94. Adding described in the regulations to facilitate SMIHCA eastern boundary to be and reserving subparagraphs (3) and (4) construction, maintenance, and consistent with the Council’s intent to will provide less confusion as these inspection of modified nonpelagic trawl protect blue king crab habitat, based on rulemakings progress simultaneously. gear that would meet the intent of the the best available scientific information. 3. Figure 17 to part 679 and Table 43 Council to reduce potential adverse This proposed rule also would adjust to part 679 would be revised to show impacts on bottom habitat from the northern boundary of the NBSRA the proposed boundaries of the NBSRA. nonpelagic trawl gear. northwards to meet the northern Figure 17 to part 679 would be revised 8. Figures 25, 26, and 27 to part 679 boundary of the Bering Sea subarea to to remove the area that is proposed to would be added to describe the ensure the northern boundary of the create the MGTZ, and to remove the measuring locations for determining NBSRA meets the Council’s intent for area that would become part of the compliance with the clearance Amendment 89. The effect of the eastern portion of the SMIHCA. The standards, and to describe the location NBSRA boundaries, including this northern portion of Figure 17 to part 679 of the elevating devices that would be northern portion, was analyzed in the also would be revised to include the required under proposed § 679.24(f). EA for Amendment 89 (see ADDRESSES). area of the Bering Sea subarea near the Section 679.24(f) would refer to these In 2007, all of the catcher/processors Bering Strait that is currently open to figures to facilitate the description of (CPs) targeting flatfish in the Bering Sea nonpelagic trawling (Figure 2). The how the modified nonpelagic trawl gear subarea (46 vessels) exceeded the $4.0 coordinates in Table 43 to part 679 is to be configured and how to million threshold that the Small would be revised to delineate the determine compliance with the Business Administration (SBA) uses to proposed new boundaries of the clearance standard for the gear. This define small fishing entities. Thus due NBSRA. These revisions are necessary revision is necessary to facilitate to their combined groundfish revenues, to implement the Council’s compliance with the gear standards for the CPs would be considered large recommended changes in the those who may be constructing, entities for purposes of the RFA. boundaries of the NBSRA and the maintaining, or inspecting the modified However, based on their combined SMIHCA, and to remove the portion of nonpelagic trawl gear. groundfish revenues, none of the four the NBSRA that would be become the catcher vessels that participated in 2007 MGTZ. Classification exceeded the SBA’s small entity 4. Table 46 to part 679 would be Pursuant to sections 304(b)(1)(A) and threshold, and these vessels are revised to delineate the proposed new 305(d) of the Magnuson-Stevens Act, the considered small entities for purposes of boundaries of the SMIHCA. The NMFS Assistant Administrator has the RFA. It is likely that some of these coordinates in Table 46 to part 679 determined that this proposed rule is vessels also are linked by company would be changed to reflect the consistent with and necessary to affiliation, which may then categorize extension of the eastern boundary to the implement Amendment 94, and in them as large entities, but there is no 12-nm Territorial Sea. This revision is accordance with other provisions of the available information regarding the necessary to establish the proposed Magnuson-Stevens Act, and other ownership status of all vessels at an boundaries of the SMIHCA. applicable law, subject to further entity level. Therefore, the IRFA may 5. Proposed Table 51 to part 679 consideration after public comment. overestimate the number of small would be added to delineate the This proposed rule has been entities directly regulated by the coordinates of the MGTZ. Because the determined to be not significant for the proposed action. proposed area is a simple shape and purposes of Executive Order 12866. The Council considered three easily identified, no figure is added to NMFS prepared an initial regulatory alternatives, an option, and a set of the regulations. This revision is flexibility analysis (IRFA), as required minor technical changes for this action. necessary to identify the boundaries of by section 603 of the Regulatory Alternative 1 is the status quo, which the proposed MGTZ. Flexibility Act (RFA). The IRFA does not meet the Council’s

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recommendations to further protect conservation and management purposes their concerns, (3) the agency’s position Bering Sea bottom habitat. Both articulated by the Council and supporting the need to issue the Alternatives 2 and 3 would require consistent with applicable statutes. regulation, and (4) a statement of the modified nonpelagic trawl gear for This regulation does not impose new extent to which the concerns of tribal vessels directly fishing for flatfish in the recordkeeping and reporting officials have been met. If the Secretary Bering Sea subarea. Additionally, under requirements on the regulated small of Commerce approves Amendment 94, Alternative 3, which is the preferred entities. a tribal impact summary statement that alternative, an area that is currently The IRFA did not reveal any Federal summarizes and responds to issues closed to nonpelagic trawling would be rules that duplicate, overlap, or conflict raised on the proposed action—and opened to vessels using modified with the proposed action. describes the extent to which the nonpelagic trawl gear. Alternative 2 Tribal Consultation concerns of tribal officials have been does not provide fishing opportunity met—will be included in the final rule within the MGTZ, and therefore does Executive Order (E.O.) 13175 of for Amendment 94. not minimize the potential economic November 6, 2000 (25 U.S.C. 450 note), impact on small entities in the same the Executive Memorandum of April 29, List of Subjects in 50 CFR Part 679 manner as provided by Alternative 3. 1994 (25 U.S.C. 450 note), and the Alaska, Fisheries, Recordkeeping and The SMIHCA option has no economic American Indian and Alaska Native reporting requirements. Policy of the U.S. Department of effect on small entities as this area is Dated: July 8, 2010. currently closed to nonpelagic trawling Commerce (March 30, 1995) outline the Eric C. Schwaab, as part of the NBSRA. The minor responsibilities of NMFS in matters changes ensure the FMP is easier to read affecting tribal interests. Section 161 of Assistant Administrator, For Fisheries, National Marine Fisheries Services. and understand, and that the FMP Public Law (Pub. L.) 108–199 (188 Stat. accurately reflects the Council’s intent 452), as amended by section 518 of For reasons set out in the preamble, and the provisions of the Magnuson- Public Law 109–447 (118 Stat. 3267), NMFS proposes to amend 50 CFR part Stevens Act. extends the consultation requirements 679 as follows: The modified nonpelagic trawl gear of E.O. 13175 to Alaska Native component of Alternatives 2 and 3 corporations. PART 679—FISHERIES OF THE contains explicit provisions regarding On October 13, 2009, NMFS received EXCLUSIVE ECONOMIC ZONE OFF mitigating potential adverse economic a request from the Native Village of ALASKA Unalakleet for tribal consultation on a effects on directly regulated entities, the 1. The authority citation for part 679 number of fishery management issues vast majority of which are large entities. continues to read as follows: The proposed regulations for regarding the Bering Sea. On February implementing the nonpelagic trawl gear 16, 2010, NMFS met with tribal Authority: 16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108–447. modification were developed in representatives from the Native Village consultation with members of the of Unalakleet, Koyuk, Stebbins, Elim, 2. In § 679.2, revise the definitions for nonpelagic trawl CP fleet to minimize Gambell, Savoonga, Saint Michael, ‘‘Federally permitted vessels’’ and potential adverse economic effects on Shaktoolik, and King Island in ‘‘Fishing trip,’’ add in alphabetical order directly regulated entities while still Unalakleet, AK. Among other issues, the definition for ‘‘Modified Gear Trawl meeting the Council’s Magnuson- proposed Amendment 94 was Zone’’ and paragraph (5) to ‘‘Directed Stevens Act objectives to minimize discussed. Among the recommendations fishing,’’ to read as follows: potential adverse effects on bottom provided to NMFS, the tribal § 679.2 Definitions. habitat caused by nonpelagic trawl gear. representatives requested that no Performance standards (rather than nonpelagic trawling be allowed to * * * * * design standards) would be required for expand northward into the northern Directed Fishing means: the modified nonpelagic trawl gear, Bering Sea. This would include not *** which simplifies compliance establishing the MGTZ in this proposed (5) With respect to the harvest of requirements for directly regulated action. In March 2010, NMFS received flatfish in the Bering Sea subarea, for entities, including small entities, while letters from the communities of purposes of nonpelagic trawl still maintaining the ability of NMFS to Shishmaref, King Island, Saint Michael, restrictions under § 679.22(a) and enforce the regulation. Solomon, Koyuk, Wales, Brevig modified nonpelagic trawl gear Additionally, the Council has Mission, and Savoonga stating concerns requirements under §§ 679.7(c)(5) and recommended that NMFS implement regarding commercial nonpelagic 679.24(f), fishing with nonpelagic trawl the amendment on a timeline that takes trawling in the NBSRA. NMFS will gear during any fishing trip that results into account the resources available to provide opportunity for further in a retained aggregate amount of directly regulated entities. NMFS has discussion on this proposed action, and yellowfin sole, rock sole, Greenland determined that implementation will will consider information shared during turbot, arrowtooth flounder, flathead not occur sooner than the beginning of these discussions in the review of this sole, Alaska plaice, and other flatfish the 2011 fishing year. Such a timetable proposed action. NMFS will contact all that is greater than the retained amount is important to allow sufficient time for tribal governments and Alaska Native of any other fishery category defined any vessels that require re-engineering corporations that may be affected by the under § 679.21(e)(3)(iv) or of sablefish. to accommodate the modified proposed action and provide them with * * * * * nonpelagic trawl gear to schedule a copy of this proposed rule. Federally permitted vessel means a shipyard time without having to forego Section 5(b)(2)(B) of E.O. 13175 vessel that is named on either a Federal participation in the fishery. The requires NMFS to prepare a tribal fisheries permit issued pursuant to preferred alternative (Alternative 3) and summary impact statement as part of the § 679.4(b) or on a Federal crab vessel options reflect the least burdensome of final rule. This statement must contain permit issued pursuant to § 680.4(k) of available management structures in (1) A description of the extent of the this chapter. Federally permitted vessels terms of directly regulated small agency’s prior consultation with tribal must conform to regulatory entities, while fully achieving the officials, (2) a summary of the nature of requirements for purposes of fishing

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restrictions in habitat conservation modified nonpelagic trawl gear that (3) Clearance Measurements and Line areas, habitat conservation zones, meets the standards at § 679.24(f). Cross Sections. (i) The largest cross habitat protection areas, and the * * * * * section of the line of the elevated Modified Gear Trawl Zone; for purposes 5. In § 679.24, add paragraph (f) to section shown in Figure 26 to this part of anchoring prohibitions in habitat read as follows: between elevating devices shall not be protection areas; for purposes of greater than the cross section of the requirements for the BS nonpelagic § 679.24 Gear Limitations. material at the nearest measurement trawl fishery pursuant to § 679.7(c)(5) * * * * * location, as selected based on the and § 679.24(f); and for purposes of (f) Modified Nonpelagic Trawl Gear. examples shown in Figure 25 to this VMS requirements. Nonpelagic trawl gear modified as part. The material at the measurement * * * * * shown in Figure 26 to this part must be location must be: Fishing trip means: used by any vessel required to be (A) The same material as the line (1) With respect to retention federally permitted and that is used to between elevating devices, as shown in requirements (MRA, IR/IU, and pollock directed fish for flatfish, as defined in Figures 25a and 25d to this part; roe stripping), recordkeeping and § 679.2, in any reporting areas of the BS (B) Different material than the line reporting requirements under § 679.5, or directed fish for groundfish with between elevating devices and used to and determination of directed fishing nonpelagic trawl gear in the Modified support the elevating device at a for flatfish. Gear Trawl Zone specified in Table 51 connection between line sections (e.g., * * * * * to this part. Nonpelagic trawl gear used on a metal spindle, on a chain), as Modified Gear Trawl Zone means an by these vessels must meet the shown in Figure 25b to this part; or area of the Bering Sea subarea specified following standards. (C) Disks of a smaller cross section at Table 51 to this part that is closed to (1) Elevated Section Minimum than the elevating device, which are directed fishing for groundfish with Clearance. Except as provided for in strung continuously on a line between nonpelagic trawl gear, except by vessels (3)(iii) of this paragraph, elevating elevating devices, as shown in Figure using modified nonpelagic trawl gear devices must be installed on the 25c to this part. meeting the standards at § 679.24(f). elevated section shown in Figure 26 to (ii) Portions of the line between * * * * * this part to raise the elevated section at elevating devices that are braided or 3. In § 679.7, reserve paragraphs (c)(3) least 2.5 inches (6.4 cm), as measured doubled for section terminations or used and (c)(4), and add paragraph (c)(5) to adjacent to the elevating device for line joining devices are not required read as follows: contacting a hard, flat surface that is to be a smaller cross section than the parallel to the elevated section, measuring location. § 679.7 Prohibitions. regardless of the elevating device (iii) Required minimum clearance for * * * * * orientation, and measured between the supporting material of a larger cross (c) * * * surface and the widest part of the line section than the cross section of the line (3) [Reserved] material. Elevating devices must be material. When the material supporting (4) [Reserved] installed on each end of the elevated (5) Conduct directed fishing for the elevating device has a larger cross section, as shown in Figure 26 to this flatfish as defined in § 679.2 with a section than the largest cross section of part. Measuring locations to determine vessel required to be federally permitted the line between elevating devices, compliance with this standard are in any reporting area of the Bering Sea except as provided for in paragraph shown in Figure 25 to this part. subarea as described in Figure 1 to this (3)(ii), based on measurements taken in part without meeting the requirements (2) Elevating Device Spacing. locations shown in Figure 27 to this for modified nonpelagic trawl gear Elevating devices must be secured along part, the required minimum clearance specified in § 679.24(f). the entire length of the elevated section shall be as following: shown in Figure 26 to this part and (A) For elevating devices spaced 30 * * * * * spaced no less than 30 feet (9.1 m) apart; 4. In § 679.22, add paragraph (a)(21) to feet (9.1 m) to 65 feet (19.8 m), the and either ≥ read as follows: required minimum clearance is [2.5 (i) If the elevating devices raise the inches¥((support material cross § 679.22 Closures. elevated section shown in Figure 26 to section¥line material cross section)/2)], (a) * * * this part 3.5 inches (8.9 cm) or less, the or (21) Modified Gear Trawl Zone. No space between elevating devices must (B) For elevating device spaced 66 feet vessel required to be federally permitted be no more than 65 feet (19.8 m); or (19.8 m) to 95 feet (29 m), the required may fish with nonpelagic trawl gear in (ii) If the elevating devices raise the minimum clearance is ≥ [3.5 the Modified Gear Trawl Zone specified elevated section shown Figure 26 to this inches¥((support material cross at Table 51 to this part, except for part more than 3.5 inches (8.9 cm), the section¥line material cross section)/2)]. federally permitted vessels that are space between elevating devices must 6. Table 43 to part 679 is revised to read directed fishing for groundfish using be no more than 95 feet (29 m). as follows:

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7. Table 46 to part 679 is revised to read as follows:

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8. Table 51 to part 679 is added to read as follows:

9. Figure 17 to part 679 is revised to read as follows:

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10. Figure 25 to part 679 is added to read as follows:

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11. Figure 26 to part 679 is added to read as follows:

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12. Figure 27 to part 679 is added to read as follows:

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[FR Doc. 2010–17166 Filed 7–14–10; 8:45 am] BILLING CODE 3510–22–C

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Notices Federal Register Vol. 75, No. 135

Thursday, July 15, 2010

This section of the FEDERAL REGISTER room is located in room 1141 of the We are asking the Office of contains documents other than rules or USDA South Building, 14th Street and Management and Budget (OMB) to proposed rules that are applicable to the Independence Avenue SW., approve our use of these information public. Notices of hearings and investigations, Washington, DC. Normal reading room collection activities for an additional 3 committee meetings, agency decisions and hours are 8 a.m. to 4:30 p.m., Monday years. rulings, delegations of authority, filing of petitions and applications and agency through Friday, except holidays. To be The purpose of this notice is to solicit statements of organization and functions are sure someone is there to help you, comments from the public (as well as examples of documents appearing in this please call (202) 690-2817 before affected agencies) concerning our section. coming. information collection. These comments Other Information: Additional will help us: information about APHIS and its DEPARTMENT OF AGRICULTURE (1) Evaluate whether the collection of programs is available on the Internet at information is necessary for the proper (http://www.aphis.usda.gov). Animal and Plant Health Inspection performance of the functions of the Service FOR FURTHER INFORMATION CONTACT: For Agency, including whether the information on regulations for the information will have practical utility; [Docket No. APHIS-2010-0066] interstate movement of certain fruit (2) Evaluate the accuracy of our from Hawaii, contact Mr. David Lamb, estimate of the burden of the collection Notice of Request for Extension of Import Specialist, Regulations, Permits, Approval of an Information Collection; of information, including the validity of and Manuals, PPQ, APHIS, 4700 River the methodology and assumptions used; Interstate Movement of Fruit from Road Unit 133, Riverdale, MD 20737; Hawaii (301) 734-0627. For copies of more (3) Enhance the quality, utility, and clarity of the information to be AGENCY: detailed information on the information Animal and Plant Health collected; and Inspection Service, USDA. collection, contact Mrs. Celeste Sickles, APHIS’ Information Collection (4) Minimize the burden of the ACTION: Extension of approval of an collection of information on those who information collection; comment Coordinator, at (301) 851-2908. are to respond, through use, as request. SUPPLEMENTARY INFORMATION: Title: Interstate Movement of Fruit appropriate, of automated, electronic, SUMMARY: In accordance with the from Hawaii. mechanical, and other collection technologies; e.g., permitting electronic Paperwork Reduction Act of 1995, this OMB Number: 0579-0331. submission of responses. notice announces the Animal and Plant Type of Request: Extension of Health Inspection Service’s intention to approval of an information collection. Estimate of burden: The public request an extension of approval of an Abstract: The Plant Protection Act (7 reporting burden for this collection of information collection associated with U.S.C. 7701 et seq.) authorizes the information is estimated to average 0.2 regulations for the interstate movement Secretary of Agriculture, either hours per response. of certain fruit from Hawaii to help independently or in cooperation with Respondents: Growers of certain fruit ensure that plant pests are not spread to States, to carry out operations or in Hawaii. the continental United States. measures to detect, eradicate, suppress, Estimated annual number of DATES: We will consider all comments control, prevent, or retard the spread of respondents: 110. that we receive on or September 13, plant pests that are new to or not widely 2010. Estimated annual number of distributed within the United States. responses per respondent: 24.7636. ADDRESSES: You may submit comments The regulations in 7 CFR part 318, State Estimated annual number of by either of the following methods: of Hawaii and Territories Quarantine responses: 2,724. ∑ Federal eRulemaking Portal: Go to Notices, prohibit or restrict the (http://www.regulations.gov/ interstate movement of fruits, Estimated total annual burden on fdmspublic/component/ vegetables, and other products from respondents: 545 hours. (Due to main?main=DocketDetail&d=APHIS- Hawaii, Puerto Rico, the U.S. Virgin averaging, the total annual burden hours 2010-0066) to submit or view comments Islands, and Guam to the continental may not equal the product of the annual and to view supporting and related United States to prevent the spread of number of responses multiplied by the materials available electronically. plant pests or noxious weeds. reporting burden per response.) ∑ Postal Mail/Commercial Delivery: In accordance with the regulations in All responses to this notice will be Please send one copy of your comment Subpart—Regulated Articles From summarized and included in the request to Docket No. APHIS-2010-0066, Hawaii and the Territories (§§ 318.13-1 for OMB approval. All comments will Regulatory Analysis and Development, through 318.13-26 ), certain fruit, such also become a matter of public record. PPD, APHIS, Station 3A-03.8, 4700 as breadfruit, jackfruit, fresh pods of Done in Washington, DC, this 9th day River Road Unit 118, Riverdale, MD cowpea and its relatives, dragon fruit, of July 2010. 20737-1238. Please state that your mangosteen, moringa pods, and melon, comment refers to Docket No. APHIS- must meet conditions for movement to Kevin Shea 2010-0066. the continental United States. These Acting Administrator, Animal and Plant Reading Room: You may read any conditions involve information Health Inspection Service. comments that we receive on this collection activities, including [FR Doc. 2010–17271 Filed 7–14–10; 10:28 am] docket in our reading room. The reading certificates and limited permits. BILLING CODE 3410–34–S

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DEPARTMENT OF AGRICULTURE All written comments will be open for Total Annual Burden: 704 Hours. public inspection at the office of the Dated: July 7, 2010. Food and Nutrition Service Food and Nutrition Service during regular business hours (8:30 a.m. to 5 Audrey Rowe, Agency Information Collection p.m. Monday through Friday) at 3101 Acting Administrator, Food and Nutrition Activities: Proposed Collection; Park Center Drive, Room 630, Service. Comment Request—Child Nutrition Alexandria, Virginia 22302. [FR Doc. 2010–17235 Filed 7–14–10; 8:45 am] Database All responses to this notice will be BILLING CODE 3410–30–P summarized and included in the request AGENCY: Food and Nutrition Service, USDA. for Office of Management and Budget approval. All comments will be a matter ACTION: Notice. of public record. COMMISSION ON CIVIL RIGHTS FOR FURTHER INFORMATION CONTACT: SUMMARY: In accordance with the Requests for additional information or Agenda and Notice of Public Meeting Paperwork Reduction Act of 1995, this of the Mississippi Advisory Committee notice invites the general public and copies of the information collection instrument and instruction should be other public agencies to comment on Notice is hereby given, pursuant to this proposed information collection. directed to Timothy Vazquez at (703) 305–2609. the provisions of the rules and This is a revision of a currently regulations of the U.S. Commission on approved collection. This collection is SUPPLEMENTARY INFORMATION: Civil Rights (Commission), and the the voluntary submission of data Title: Child Nutrition Database. Federal Advisory Committee Act OMB Number: 0584–0494. including nutrient data from the food (FACA), that a meeting of the Expiration Date: July 31, 2011. service industry to update and expand Mississippi Advisory Committee to the Type of Request: Revision of currently the Child Nutrition Database in support Commission will convene on approved collection. of the School Meals Initiative for Wednesday, August 11, 2010 at 1 p.m. Abstract: The development of the Healthy Children. and adjourn at approximately 5 p.m. Child Nutrition (CN) Database is DATES: (CST) at Mississippi College School of Written comments on this notice regulated by the United States must be received by September 13, 2010 Department of Agriculture (USDA), Law, Room 151B, 151 East Griffith to be assured of consideration. Food and Nutrition Service. This Street, Jackson, MS 39201. The purpose ADDRESSES: Comments are invited on: database is designed to be incorporated of the meeting is to conduct briefing and (a) Whether the proposed collection of in USDA-approved nutrient analysis planning a future civil rights project. information is necessary for the proper software programs and provide an Members of the public are entitled to performance of the functions of the accurate source of nutrient data. The submit written comments. The Agency, including whether the software allows schools participating in comments must be received in the information will have practical utility; the National School Lunch Program regional office by August 23, 2010. The (b) the accuracy of the Agency’s (NSLP) and School Breakfast Program address is U.S. Commission on Civil estimate of the burden of the proposed (SBP) to analyze meals and measure the Rights, 400 State Avenue, Suite 908, collection of information including the compliance of the menus to established Kansas City, Kansas 66101. Persons validity of the methodology and nutrition goals and standards specified wishing to e-mail their comments, or to assumptions used; (c) ways to enhance in 7 CFR 210.10 for the NSLP and 7 CFR present their comments verbally at the the quality, utility, and clarity of the 220.8 for the SBP. The information meeting, or who desire additional information to be collected; and (d) collection for the CN Database is information should contact Farella E. ways to minimize the burden of the conducted using an outside contractor. Robinson, Regional Director, Central collection of information on those who The CN Database is updated annually Regional Office, at (913) 551–1400, (or are to respond, including use of with brand name or manufactured foods for hearing impaired TDD 913–551– appropriate automated, electronic, commonly used in school food service. 1414), or by e-mail to mechanical, or other technological The Food and Nutrition Service’s [email protected]. collection techniques or other forms of contractor collects this data from the Hearing-impaired persons who will information technology. food industry to update and expand the attend the meeting and require the Comments may be sent to: Timothy CN Database. The submission of data services of a sign language interpreter Vazquez, Nutritionist, Nutrition and from the food industry will be strictly should contact the Regional Office at Technical Assistance Section, Nutrition voluntary, and based on analytical, least ten (10) working days before the Promotion and Technical Assistance calculated, or nutrition facts label scheduled date of the meeting. Branch, Child Nutrition Division, Room sources. Collection of this information is 630, Food and Nutrition Service, United accomplished by form FNS–710, CN Records generated from this meeting States Department of Agriculture, 3101 Database Qualification Report. may be inspected and reproduced at the Park Center Drive, Alexandria, VA Affected Public: Business for-profit Central Regional Office, as they become 22302. Comments may also be (Manufacturers of food produced for available, both before and after the submitted via fax to the attention of schools.) meeting. Persons interested in the work Timothy Vazquez at 703–305–2549 or Form: FNS—710. of this advisory committee are advised via e-mail to Estimated Number of Respondents: to go to the Commission’s Web site, [email protected] with, 16. http://www.usccr.gov, or to contact the ‘‘Vazquez/CN Database’’ in the subject Estimated Number of Responses per Central Regional Office at the above e- line. Comments will also be accepted Respondent: 22. mail or street address. through the Federal eRulemaking Portal. Estimated Total Annual Responses: The meeting will be conducted Go to http://www.regulations.gov and 352. pursuant to the provisions of the rules follow the online instructions for Estimated Time per Response: 2 and regulations of the Commission and submitting comments electronically. Hours. FACA.

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Dated in Washington, DC, July 12, 2010. within 30 days of publication of this within 30 days of publication of this Peter Minarik, notice to David Rostker, OMB Desk notice to David Rostker, OMB Desk Acting Chief, Regional Programs Officer, FAX number (202) 395–7285, or Officer, FAX number (202) 395–7285, or Coordination Unit. [email protected]. [email protected]. [FR Doc. 2010–17231 Filed 7–14–10; 8:45 am] Dated: July 9, 2010. Dated: July 9, 2010. BILLING CODE 6335–01–P Gwellnar Banks, Gwellnar Banks, Management Analyst, Office of the Chief Management Analyst, Office of the Chief Information Officer. Information Officer. DEPARTMENT OF COMMERCE [FR Doc. 2010–17185 Filed 7–14–10; 8:45 am] [FR Doc. 2010–17186 Filed 7–14–10; 8:45 am] BILLING CODE 3510–22–P Submission for OMB Review; BILLING CODE 3510–22–P Comment Request The Department of Commerce will DEPARTMENT OF COMMERCE DEPARTMENT OF COMMERCE submit to the Office of Management and Submission for OMB Review; Bureau of Industry and Security Budget (OMB) for clearance the Comment Request following proposal for collection of Proposed Information Collection; information under the provisions of the The Department of Commerce will Comment Request; Triangular Paperwork Reduction Act (44 U.S.C. submit to the Office of Management and Transactions Chapter 35). Budget (OMB) for clearance the AGENCY: Agency: National Oceanic and following proposal for collection of Bureau of Industry and Atmospheric Administration (NOAA). information under the provisions of the Security, Commerce. Title: Foreign Fishing Vessels Paperwork Reduction Act (44 U.S.C. ACTION: Notice. Operating in Internal Waters. Chapter 35). SUMMARY: The Department of OMB Control Number: 0648–0329. Agency: National Oceanic and Form Number(s): NA. Commerce, as part of its continuing Atmospheric Administration (NOAA). effort to reduce paperwork and Type of Request: Regular submission Title: Fisheries Certificate of Origin. (extension of a currently approved respondent burden, invites the general OMB Control Number: 0648–335. public and other Federal agencies to collection). Form Number(s): NOAA 370. Number of Respondents: 2. take this opportunity to comment on Type of Request: Regular submission proposed and/or continuing information Average Hours Per Response: 30 (extension of a currently approved minutes. collections, as required by the collection). Paperwork Reduction Act of 1995. Burden Hours: 12. Number of Respondents: 440. Needs and Uses: Foreign fishing Average Hours Per Response: 20 DATES: Written comments must be vessels, granted permission by a minutes. submitted on or before September 13, governor of a State to engage in fish Burden Hours: 4,167. 2010. processing within the internal waters of Needs and Uses: The information on ADDRESSES: Direct all written comments that State, are required under the the Fisheries Certificate of Origin is to Diana Hynek, Departmental Magnuson-Stevens Fishery required by the International Dolphin Paperwork Clearance Officer, Conservation and Management Act to Conservation Program Act, amendment Department of Commerce, Room 6616, report the tonnage and location of fish to the Marine Mammal Protection Act, 14th and Constitution Avenue, NW., received from vessels of the United and is needed: To document the Washington, DC 20230 (or via the States. The fish processing includes, in Dolphin-safe status of tuna import Internet at [email protected]). addition to processing, other activity shipments; to verify that import FOR FURTHER INFORMATION CONTACT: relating to fishing such as preparation, shipments of fish not harvested by large Requests for additional information or supply, storage, refrigeration, or scale, high seas driftnets; and to verify copies of the information collection transportation. Weekly reports are that imported tuna not harvested by an instrument and instructions should be submitted to the National Marine embargoed nation or one that is directed to Larry Hall, BIS ICB Liaison, Fisheries Service Regional otherwise prohibited from exporting (202) 482–4895, [email protected]. Administrator to allow monitoring of tuna to the United States. The forms are SUPPLEMENTARY INFORMATION: fish received by foreign vessels. submitted by importers and processors. Affected Public: Business or other for- Affected Public: Business or other for- I. Abstract profit organizations. profit organizations. This collection of information Frequency: Weekly. Frequency: On occasion. provides a means to authorize approved Respondent’s Obligation: Mandatory. Respondent’s Obligation: Mandatory. imports to the U.S. to be transhipped to OMB Desk Officer: David Rostker, OMB Desk Officer: David Rostker, another destination instead of being (202) 395–3897. (202) 395–3897. imported to the U.S. as approved on an Copies of the above information Copies of the above information International Import Certificate. A collection proposal can be obtained by collection proposal can be obtained by triangular symbol is stamped on import calling or writing Diana Hynek, calling or writing Diana Hynek, certificates as notification that the Departmental Paperwork Clearance Departmental Paperwork Clearance importer does not intend to import or Officer, (202) 482–0266, Department of Officer, (202) 482–0266, Department of retain the items in the country issuing Commerce, Room 6616, 14th and Commerce, Room 6616, 14th and the certificate, but that, in any case, the Constitution Avenue, NW., Washington, Constitution Avenue, NW., Washington, items will not be delivered to any other DC 20230 (or via the Internet at DC 20230 (or via the Internet at destination except in accordance with [email protected]). [email protected]). the Export Administration Regulations. Written comments and Written comments and recommendations for the proposed recommendations for the proposed II. Method of Collection information collection should be sent information collection should be sent Submitted in paper form.

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III. Data DATES: Written comments must be Comments submitted in response to submitted on or before September 13, this notice will be summarized and/or OMB Control Number: 0694–0009. 2010. included in the request for OMB Form Number(s): None. approval of this information collection; Type of Review: Regular submission. ADDRESSES: Direct all written comments to Diana Hynek, Departmental they also will become a matter of public Affected Public: Business or other for- Paperwork Clearance Officer, record. profit organizations. Department of Commerce, Room 6616, Dated: July 9, 2010. Estimated Number of Respondents: 1. 14th and Constitution Avenue, NW., Gwellnar Banks, Estimated Time per Response: 1 hour. Washington, DC 20230 (or via the Management Analyst, Office of the Chief Estimated Total Annual Burden Internet at [email protected]). Information Officer. Hours: 1 hour. FOR FURTHER INFORMATION CONTACT: [FR Doc. 2010–17224 Filed 7–14–10; 8:45 am] Estimated Total Annual Cost to Requests for additional information or BILLING CODE 3510–33–P Public: $0. copies of the information collection IV. Request for Comments instrument and instructions should be directed to Larry Hall, BIS ICB Liaison, DEPARTMENT OF COMMERCE Comments are invited on: (a) Whether (202) 482–4895, [email protected]. the proposed collection of information National Oceanic and Atmospheric SUPPLEMENTARY INFORMATION: is necessary for the proper performance Administration of the functions of the agency, including I. Abstract RIN 0648–XX41 whether the information shall have The information obtained from this practical utility; (b) the accuracy of the collection authorization is used to Fisheries in the Western Pacific; agency’s estimate of the burden carefully and accurately monitor American Samoa Pelagic Longline (including hours and cost) of the requests for participation in foreign Limited Entry Program proposed collection of information; (c) boycotts against countries friendly to AGENCY: National Marine Fisheries ways to enhance the quality, utility, and the U.S. which are received by U.S. clarity of the information to be Service (NMFS), National Oceanic and persons. The information is also used to Atmospheric Administration (NOAA), collected; and (d) ways to minimize the identify trends in such boycott activity burden of the collection of information Commerce. and to assist in carrying out U.S. policy ACTION: Notice; availability of permits. on respondents, including through the of opposition to such boycotts. use of automated collection techniques SUMMARY: NMFS is soliciting II. Method of Collection or other forms of information applications for American Samoa technology. Submitted in paper form. pelagic longline limited entry permits. Comments submitted in response to III. Data At least ten permits of various class this notice will be summarized and/or sizes will be available for 2010. This included in the request for OMB OMB Control Number: 0694–0012. notice is intended to announce the approval of this information collection; Form Number(s): BIS 621–P, BXA availability of permits and to solicit they also will become a matter of public 621–P, BIS 6051–P, BXA 6051–P, BIS– applications for the permits. record. 6051 P–a, BXA–6051 P–a DATES: Completed permit applications Dated: July 9, 2010. Type of Review: Regular submission. must be received by NMFS by Gwellnar Banks, Affected Public: Business or other for- November 12, 2010. profit organizations. Management Analyst, Office of the Chief ADDRESSES: Request blank application Estimated Number of Respondents: Information Officer. forms from NMFS Pacific Islands Region 1,291. [FR Doc. 2010–17216 Filed 7–14–10; 8:45 am] (PIR), 1601 Kapiolani Blvd., Suite 1110, Estimated Time per Response: 1 hour BILLING CODE 3510–33–P Honolulu, HI 96814–4733, or the PIR to 1 hour and 30 minutes. website www.fpir.noaa.gov. Estimated Total Annual Burden Mail completed applications and DEPARTMENT OF COMMERCE Hours: 1,416. payment to NMFS PIR, ATTN: ASLE Estimated Total Annual Cost to Permits, 1601 Kapiolani Blvd., Suite Public: $0. Bureau of Industry and Security 1110, Honolulu, HI 96814–4733. IV. Request for Comments FOR FURTHER INFORMATION CONTACT: Proposed Information Collection; Comment Request; Report of Requests Comments are invited on: (a) Whether Walter Ikehara, Sustainable Fisheries, for Restrictive Trade Practice or the proposed collection of information NMFS PIR, tel 808–944–2275, fax 808– Boycott is necessary for the proper performance 973–2940, or e-mail PIRO- of the functions of the agency, including [email protected]. AGENCY: Bureau of Industry and whether the information shall have SUPPLEMENTARY INFORMATION: Federal Security. practical utility; (b) the accuracy of the regulations at 50 CFR 665.816 allow ACTION: Notice. agency’s estimate of the burden NMFS to issue new permits for the (including hours and cost) of the American Samoa pelagic longline SUMMARY: The Department of proposed collection of information; (c) limited entry program if the number of Commerce, as part of its continuing ways to enhance the quality, utility, and permits in a size class falls below the effort to reduce paperwork and clarity of the information to be maximum allowed. At least 10 permits respondent burden, invites the general collected; and (d) ways to minimize the are available for issuance (note that the public and other Federal agencies to burden of the collection of information number of available permits may change take this opportunity to comment on on respondents, including through the before the application period closes): proposed and/or continuing information use of automated collection techniques four in Class A (vessels less than or collections, as required by the or other forms of information equal to 40 ft (12.2 m), five in Class B Paperwork Reduction Act of 1995. technology. (over 40 ft (12.2 m) through 50 ft (15.2

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m)), and one in Class D (over 70 ft (21.3 these preliminary results are adopted in Shanghai Jinneng made sales of subject m)). our final results of review, we will merchandise during the POR. Both Persons with the earliest documented instruct U.S. Customs and Border Patrol Jiangxi Gangyuan, and Datong Jinneng participation in the fishery on a Class A (‘‘CBP’’) to liquidate the appropriate reported that they had no entries of sized vessel will receive the highest entries without regard to antidumping subject merchandise during the POR. priority for obtaining permits in any size duties. Between October 2009 and May 2010, class, followed by persons with the We invite interested parties to Shanghai Jinneng responded to the earliest documented participation in comment on these preliminary results. Department’s questionnaire and Classes B, C, and D, in that order. If Parties who submit comments are supplemental questionnaires and there is a tie in priority, the person with requested to submit with each argument Petitioner commented on Shanghai the second earliest documented a statement of the issue and a brief Jinneng’s responses. participation will be ranked higher in summary of the argument. We intend to In response to the Department’s priority. issue the final results of this review no December 9, 2009, letter providing Complete applications must include later than 120 days from the date of parties with an opportunity to submit the completed and signed application publication of this notice. comments regarding surrogate country form, legible copies of documents FOR FURTHER INFORMATION CONTACT: and surrogate value selection,3 Shanghai supporting historical participation in Melissa Blackledge or Howard Smith, Jinneng and Petitioner filed surrogate the American Samoa pelagic longline AD/CVD Operations, Office 4, Import country and surrogate value comments fishery, and payment for the non- Administration, International Trade from January 2010 through June 2010. refundable application processing fee, Administration, U.S. Department of On March 4, 2010, the Department in accordance with the regulations at 50 Commerce, 14th Street and Constitution extended the deadline for the issuance CFR 665.13. Applications must be Avenue, NW, Washington, DC 20230; of the preliminary results of the received by NMFS (see ADDRESSES) by telephone: (202) 482–3518, and (202) administrative review until July 7, 2010. November 12, 2010 to be considered for 482–5193, respectively. See Silicon Metal From the People’s a permit; applications will not be SUPPLEMENTARY INFORMATION: The Republic of China: Extension of Time accepted if received after that Department received a timely request Limit for the Preliminary Results of date.Authoritative additional from Petitioner, Globe Metallurgical Inc. Antidumping Duty Administrative information on the American Samoa (‘‘Petitioner’’), in accordance with 19 Review, 75 FR 9869 (March 4, 2010). limited entry program may be found in CFR 351.213(b), for an administrative Scope of the Order 50 CFR part 665. review of the antidumping duty order The product covered by the order is on silicon metal from the PRC of three Authority: 16 U.S.C. 1801 et seq. silicon metal containing at least 96.00 companies: Datong Jinneng Industrial but less than 99.99 percent of silicon by Dated: July 9, 2010. Silicon Co., Ltd. (‘‘Datong Jinneng’’),1 weight, and silicon metal with a higher Emily H. Menashes, Jiangxi Gangyuan Silicon Industry Co., aluminum content containing between Acting Director, Office of Sustainable Ltd. (‘‘Jiangxi Gangyuan’’),2 and 89 and 96 percent silicon by weight. Fisheries, National Marine Fisheries Service. Shanghai Jinneng International Trade The subject merchandise is currently [FR Doc. 2010–17296 Filed 7–14–10; 8:45 am] Co., Ltd. (‘‘Shanghai Jinneng’’). The classifiable under item numbers BILLING CODE 3510–22–S Department also received a timely 2804.69.10 and 2804.69.50 of the request from Shanghai Jinneng and Harmonized Tariff Schedule of the Datong Jinneng (Shanghai Jinneng’s United States (‘‘HTSUS’’) as a chemical DEPARTMENT OF COMMERCE affiliated supplier and producer of product, but is commonly referred to as subject merchandise) for an a metal. Semiconductor–grade silicon International Trade Administration administrative review of Shanghai (silicon metal containing by weight not Jinneng. On July 29, 2009, the [A–570–806] less than 99.99 percent of silicon and Department published a notice of provided for in subheading 2804.61.00 Silicon Metal from the People’s initiation of an antidumping duty of the HTSUS) is not subject to this Republic of China: Preliminary Results administrative review on silicon metal order. This order is not limited to and Preliminary Rescission, in Part, of from the PRC, in which it initiated a silicon metal used only as an alloy agent Antidumping Duty Administrative review of Datong Jinneng, Jiangxi or in the chemical industry. Although Review Gangyuan, and Shanghai Jinneng. See Initiation of Antidumping and the HTSUS subheadings are provided AGENCY: Import Administration, Countervailing Duty Administrative for convenience and customs purposes, International Trade Administration, Reviews and Deferral of Administrative the written description of the Department of Commerce. Review, 74 FR 37690 (July 29, 2009) merchandise is dispositive. SUMMARY: In response to requests from (‘‘Initiation Notice’’). Intent To Rescind the Administrative interested parties, the Department of On September 11, 2009, the Review, in Part Commerce (‘‘Department’’) is conducting Department issued the antidumping As noted above, Jiangxi Gangyuan and an administrative review of the questionnaire to Shanghai Jinneng based Datong Jinneng reported that they did antidumping duty order on silicon on the results of a CBP import data not have any entries of subject metal from the People’s Republic of query placed on the record on August merchandise during the POR. To test China (‘‘PRC’’). The period of review 17, 2009, which indicated that only (‘‘POR’’) is June 1, 2008, through May 31, these claims, the Department ran a CBP data query and issued a no–shipment 2009. This administrative review covers 1 The abbreviation ‘‘Inc.’’ incorrectly appeared one mandatory respondent and two after ‘‘Datong Jinneng Industrial Silicon Co.’’ in the inquiry to CBP asking it to provide any respondents that claim they did not ship Initiation Notice. The abbreviation ‘‘Ltd.’’ should or sell subject merchandise to the have been used. 3 See Letter from Howard Smith, Program 2 We have used the abbreviation ‘‘Co.’’ rather than Manager, Office 4, to All Interested Parties, United States during the POR. ‘‘Company’’, which was used in the Initiation ‘‘Antidumping Duty Administrative Review of We found no margin for the U.S. sales Notice, because ‘‘Co.’’ is used in the Automated Silicon Metal from the People’s Republic of China subject to this administrative review. If Customs System Module. (PRC),’’ dated December 9, 2009.

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information that contradicted the respondent was wholly foreign–owned, determining whether respondents are, companies’ claims. The Department has and thus, qualified for a separate rate). in fact, subject to a degree of not obtained any evidence contradicting governmental control which would Wholly Chinese–Owned Jiangxi Gangyuan’s and Datong preclude the Department from assigning Jinneng’s claims and, thus, has Shanghai Jinneng stated that it is a separate rates. 4 preliminarily rescinded this wholly Chinese–owned company. We determine that the evidence on administrative review with respect to Therefore, the Department must analyze the record supports a preliminary these companies pursuant to 19 CFR whether this respondent can finding of de facto absence of 351.213(d)(3): demonstrate the absence of both de jure governmental control with respect to and de facto governmental control over Non–Market Economy Country Status Shanghai Jinneng based on record export activities. statements and supporting In every case conducted by the 1. Absence of De Jure Control documentation showing that the Department involving the PRC, the PRC The Department considers the company: 1) sets its own export prices has been treated as a non–market independent of the government and economy (‘‘NME’’) country. In following de jure criteria in determining whether an individual company may be without the approval of a government accordance with section 771(18)(C)(i) of authority; 2) has the authority to the Tariff Act of 1930, as amended (the granted a separate rate: (1) an absence of restrictive stipulations associated with negotiate and sign contracts and other ‘‘Act’’), any determination that a foreign agreements; 3) has autonomy from the country is an NME country shall remain an individual exporter’s business and export licenses; (2) any legislative government regarding the selection of in effect until revoked by the management; and 4) retains the administering authority. None of the enactments decentralizing control of companies; and (3) other formal proceeds from its sales and makes parties to this proceeding have independent decisions regarding contested such treatment. Accordingly, measures by the government decentralizing control of companies. See disposition of profits or financing of the Department calculated normal value losses.6 (‘‘NV’’) in accordance with section Sparklers, 56 FR at 20589. The evidence placed on the record of 773(c) of the Act, which applies to NME The evidence provided by Shanghai this administrative review by Shanghai countries. Jinneng supports a preliminary finding of de jure absence of governmental Jinneng demonstrates an absence of de Separate Rates control based on the following: (1) there jure and de facto government control is an absence of restrictive stipulations with respect to the company’s exports of In proceedings involving NME associated with the company’s business the merchandise under review, in countries, the Department has a and export licenses; (2) there are accordance with the criteria identified rebuttable presumption that all applicable legislative enactments in Sparklers and Silicon Carbide. companies within the country are decentralizing control of PRC Therefore, we have preliminary granted subject to government control and, thus, companies; and (3) there are formal Shanghai Jinneng separate rate status. should be assessed a single antidumping measures by the government duty rate. It is the Department’s policy Selection of a Surrogate Country decentralizing control of PRC to assign all exporters of merchandise companies.5 subject in an NME country this single When the Department conducts an rate unless an exporter can demonstrate 2. Absence of De Facto Control antidumping duty administrative review that it is sufficiently independent so as of imports from a NME country, section The Department considers four factors 773(c)(1) of the Act directs the to be entitled to a separate rate. in evaluating whether each respondent Exporters can demonstrate this Department to base NV, in most cases, is subject to de facto governmental on the NME producer’s factors of independence through the absence of control of its export functions: (1) both de jure and de facto governmental production (‘‘FOP’’) valued in a whether the export prices are set by or surrogate market–economy country or control over export activities. The are subject to the approval of a Department analyzes each entity countries considered appropriate by the governmental agency; (2) whether the Department. In accordance with section exporting the subject merchandise respondent has authority to negotiate under a test set out in the Notice of 773(c)(4) of the Act, the Department will and sign contracts and other value FOP using ‘‘to the extent possible, Final Determination of Sales at Less agreements; (3) whether the respondent Than Fair Value: Sparklers from the the prices or costs of factors of has autonomy from the government in production in one or more market– People’s Republic of China, 56 FR 20588 making decisions regarding the (May 6, 1991) (‘‘Sparklers’’), as further economy countries that are – (A) at a selection of management; and (4) level of economic development developed in Notice of Final whether the respondent retains the Determination of Sales at Less Than comparable to that of the NME country, proceeds of its export sales and makes and (B) significant producers of Fair Value: Silicon Carbide from the independent decisions regarding People’s Republic of China, 59 FR 22585 comparable merchandise.’’ Further, disposition of profits or financing of pursuant to 19 CFR 351.408(c)(2), the (May 2, 1994) (‘‘Silicon Carbide’’ ). losses. See Silicon Carbide, 59 FR at However, if the Department determines Department will normally value FOP in 22586–87; see also Notice of Final a single country. that a company is wholly foreign– Determination of Sales at Less Than In the instant review, the Department owned or located in a market economy, Fair Value: Furfuryl Alcohol From the identified India, Indonesia, the then a separate rate analysis is not People’s Republic of China, 60 FR Philippines, Colombia, Thailand, and necessary to determine whether it is 22544, 22545 (May 8, 1995). The Peru as a non–exhaustive list of independent from government control. Department has determined that an countries that are at a level of economic See Notice of Final Determination of analysis of de facto control is critical in Sales at Less Than Fair Value: Creatine development comparable to the PRC Monohydrate from the People’s 4 See Shanghai Jinneng’s Section A Response and for which good quality data is most Republic of China, 64 FR 71104, 71105 (‘‘SAR’’), at 2. (December 20, 1999) (where the 5 See Shanghai Jinneng’s SAR, at 4-9. 6 See Shanghai Jinneng’s SAR, at 10-13.

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likely available.7 On January 13, 2010, Fair Value Comparisons Magnesium Corp. of America, et. al. v. the Petitioner and Shanghai Jinneng In accordance with section 777A(d)(2) United States, et. al.,166 F.3d 1364, proposed selecting India as the of the Act, to determine whether 1370–71 (Fed. Cir.1999) (‘‘Magnesium surrogate country because it is at a level Shanghai Jinneng sold silicon metal to Corp.’’). of economic development comparable to the United States at less than NV, we Normal Value the PRC and the U.S. Geological Survey, compared the weighted–average export Section 773(c)(1) of the Act provides Minerals Yearbook (‘‘USGS’’) and Metal of the silicon metal to the NV of the that the Department shall determine NV Bulletin, Inc. indicate that India is a silicon metal, as described in the ‘‘U.S. using an FOP methodology if the significant producer of comparable Price,’’ and ‘‘Normal Value’’ sections of 8 merchandise is exported from an NME merchandise. With respect to data this notice. considerations, in selecting a surrogate country and the available information country, it is the Department’s practice Export Price does not permit the calculation of NV that, ’’. . . if more than one country has The Department considered the U.S. using home–market prices, third– survived the selection process to this prices of sales by Shanghai Jinneng to be country prices, or constructed value point, the country with the best factors export prices (‘‘EPs’’) in accordance with under section 773(a) of the Act. When data is selected as the primary surrogate section 772(a) of the Act, because these determining NV in an NME context, the country.’’ See Policy Bulletin 04.1: Non– were the prices at which the subject Department uses an FOP methodology Market Economy Surrogate Country merchandise was first sold before the because the presence of government Selection Process, (March 1, 2004) date of importation by the producer/ controls on various aspects of NMEs (‘‘Policy Bulletin 04.1’’) available at exporter of the subject merchandise renders price comparisons and the http://ia.ita.doc.gov. Currently, the outside of the United States to an calculation of production costs invalid record contains surrogate value unaffiliated purchaser in the United under its normal methodologies. See information, including possible States. We calculated EPs based on Tapered Roller Bearings and Parts surrogate financial statements, only prices to unaffiliated purchaser(s) in the Thereof, Finished or Unfinished, From from India. Thus, the Department is United States. the People’s Republic of China: preliminarily selecting India as the Shanghai Jinneng reported that it Preliminary Results of Antidumping surrogate country on the basis that: (1) incurred value added tax (‘‘VAT’’) and Duty Administrative Review and Notice it is at a comparable level of economic an export tax on subject merchandise. of Intent to Rescind in Part, 70 FR development to the PRC, pursuant to Petitioner argues that the Department 39744, 39754 (July 11, 2005), unchanged 773(c)(4) of the Act; (2) it is a significant should deduct the export tax from U.S. in Tapered Roller Bearings and Parts producer of comparable merchandise; price, which, according to petitioner, is Thereof, Finished and Unfinished, from and (3) we have reliable data from India in accordance with the statute and the the People’s Republic of China: Final that we can use to value the FOP. Department’s practice of calculating a Results of 2003–2004 Administrative Therefore, we have calculated NV using tax–neutral dumping margin. Shanghai Review and Partial Rescission of Indian prices, when available and Jinneng contends that in the 2007–2008 Review, 71 FR 2517, 2521 (January 17, appropriate, to value Shanghai Jinneng’s administrative review, the Department 2006). Under section 773(c)(3) of the FOP. See Memorandum to the File concluded that its practice, which had Act, FOP include, but are not limited to: through Howard Smith, Program been upheld by the Court of (1) hours of labor required; (2) quantities Manager, AD/CVD Operations, Office 4, International Trade (‘‘CIT’’) and Court of of raw materials employed; (3) amounts from Melissa Blackledge, Senior Appeals for the Federal Circuit, is not to of energy and other utilities consumed; International Trade Analyst, regarding reduce U.S. price for tax payments by and (4) representative capital costs. The ‘‘Antidumping Duty Administrative NME respondents to NME governments. Department based NV on FOP reported Review of Silicon Metal from the Shanghai Jinneng claims that the facts by the respondent for materials, energy, People’s Republic of China: Selection of related to export taxes in this labor and packing. Factor Values,’’ dated July 7, 2010 administrative review are the same as in Thus, in accordance with section (‘‘Surrogate Value Memorandum’’). In the 2007–2008 administrative review. In 773(c) of the Act, we calculated NV by accordance with 19 CFR the 2007–2008 administrative review, adding together the values of the FOPs, 351.301(c)(3)(ii), interested parties may the Department determined not to general expenses, profit, and packing submit publicly–available information reduce U.S. price by the amount of costs.10 We calculated FOP values by to value FOP until 20 days after the date Chinese export tax and VAT on silicon multiplying the reported per–unit of publication of the preliminary metal exports. In this instant review, factor–consumption rates by publicly results.9 consistent with Magnesium Corp. and available surrogate values (except as the 2007–2008 administrative review, discussed below). Specifically, we 7 See memorandum entitled, ‘‘Request for a List of the Department is not reducing U.S. valued material, labor, energy, and Surrogate Countries for an Administrative Review price for export taxes or VAT in China. packing by multiplying the amount of of the Antidumping Duty Order on Silicon Metal (‘‘Silicon Metal’’) from the People’s Republic of See Silicon Metal from the People’s the factor consumed in producing China (‘‘PRC’’),’’ dated October 28, 2009. Republic China: Final Results and subject merchandise by the average unit 8 See Shanghai Jinneng’s January 13, 2010, and Partial Rescission of Antidumping Duty surrogate value of the factor. In Respondent’s January 13, 2010 submissions at 6 and Administrative Review, 75 FR 1592 (Jan. addition, we added freight costs to the 2, respectively. 12, 2010), and accompanying Issues and surrogate costs that we calculated for 9 In accordance with 19 CFR 351.301(c)(1), for the final results of this administrative review, Decision Memorandum at Comment 1; material inputs. We calculated freight interested parties may submit factual information to costs by multiplying surrogate freight rebut, clarify, or correct factual information the submission of additional, previously absent- rates by the shorter of the reported submitted by an interested party less than ten days from-the-record alternative surrogate value distance from the domestic supplier to before, on, or after, the applicable deadline for information pursuant to 19 CFR 351.301(c)(1). See submission of such factual information. However, Glycine from the People’s Republic of China: Final the factory that produced the subject the Department notes that 19 CFR 351.301(c)(1) Results of Antidumping Duty Administrative permits new information only insofar as it rebuts, Review and Final Rescission, in Part, 72 FR 58809 10 We based the values of the FOPs on surrogate clarifies, or corrects information placed on the (October 17, 2007), and accompanying Issues and values (see ‘‘Selected Surrogate Values’’ section record. The Department generally will not accept Decision Memorandum at Comment 2. below).

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merchandise or the distance from the contemporaneous with the POR, published by GTIS, reports import nearest seaport to the factory that product–specific, and tax–exclusive. statistics, such as from India, in the produced the subject merchandise, as Thus, for these preliminary results, in original reporting currency and thus appropriate. This adjustment is in accordance with the Department’s these data correspond to the original accordance with the U.S. Court of practice, the Department used data from currency value reported by each Appeals for the Federal Circuit’s Indian Import Statistics in the Global country. Additionally, the data reported decision in Sigma Corp. v. United Trade Atlas (‘‘GTA’’) and other publicly in the GTA software are reported to the States, 117 F.3d 1401, 1407–08 (Fed. available Indian sources in order to nearest digit and thus there is not a loss Cir. 1997). We increased the calculated calculate surrogate values for Shanghai of data by rounding, as there is with the costs of the FOPs for surrogate general Jinneng’s FOPs (i.e., packing and raw data reported by the WTA software. expenses and profit. See Analysis material inputs) except where listed Consequently, the Department will now Memorandum at 4. below. obtain import statistics from GTA for With respect to the application of the In past cases, it has been the valuing various FOPs because the GTA by–product offset to NV, consistent with Department’s practice to value various import statistics are in the original the Department’s determination in the factors of production (‘‘FOPs’’) using reporting currency of the country from antidumping duty investigation of import statistics of the primary selected which the data are obtained and have diamond sawblades from the PRC, surrogate country from World Trade the same level of accuracy as the because our surrogate financial Atlas (‘‘WTA’’), as published by Global original data released. statements contain no references to the Trade Information Services (‘‘GTIS’’). In accordance with the OTCA 1988 treatment of by–products and because See Certain Preserved Mushrooms from legislative history, the Department Shanghai Jinneng reported that it sold the People’s Republic of China: continues to apply its long–standing silica fume, a by–product, we will Preliminary Results of Antidumping practice of disregarding surrogate values deduct the surrogate value of silica fume Duty New Shipper Review, 74 FR 50946, if it has a reason to believe or suspect from NV. This is consistent with 50950 (October 2, 2009), unchanged in the source data may be subsidized.11 In accounting principles based on a Certain Preserved Mushrooms from the this regard, the Department has reasonable assumption that if a People’s Republic of China: Final previously found that it is appropriate company sells a by–product, the by– Results of Antidumping Duty New to disregard such prices from India, product necessarily incurs expenses for Shipper Review, 74 FR 65520 (Dec. 10, Indonesia, South Korea and Thailand overhead, selling, general & 2009). because we have determined that these administrative expenses (‘‘SG&A’’), and However, in October 2009, the countries maintain broadly available, profit. See, e.g., Final Determination of Department learned that Indian import non–industry specific export Sales at Less Than Fair Value and Final data obtained from the WTA, as subsidies.12 Based on the existence of Partial Affirmative Determination of published by GTIS, began identifying these subsidy programs that were Critical Circumstances: Diamond the original reporting currency for India generally available to all exporters and Sawblades and Parts Thereof from the as the U.S. Dollar. The Department then producers in these countries at the time People’s Republic of China, 71 FR 29303 contacted GTIS about the change in the of the POR, the Department finds that it (May 22, 2006), and accompanying original reporting currency for India is reasonable to infer that all exporters Issues and Decisions Memorandum at from the Indian Rupee to the U.S. from India, Indonesia, South Korea and Comment 9, unchanged in Notice of Dollar. Officials at GTIS explained that Thailand may have benefitted from Amended Final Determination of Sales while GTIS obtains data on imports into these subsidies. Additionally, we at Less Than Fair Value: Diamond India directly from the Ministry of excluded from our calculations imports Sawblades and Parts Thereof from the Commerce, Government of India, as that were labeled as originating from an People’s Republic of China, 71 FR 35864 denominated and published in Indian unspecified country because we could (June 22, 2006). Rupees, the WTA software is limited not determine whether they were from with regard to the number of significant Selected Surrogate Values an NME country. Where we could only digits it can manage. Therefore, GTIS obtain surrogate values that were not In selecting the surrogate values, we made a decision to change the original contemporaneous with the POR, we considered the quality, specificity, and reporting currency for Indian data from inflated (or deflated) the surrogate contemporaneity of the data. the Indian Rupee to the U.S. Dollar in values using the Indian Wholesale Price In selecting the best available order to reduce the loss of significant information for valuing FOPs in digits when obtaining data through the 11 Omnibus Trade and Competitiveness Act of accordance with section 773(c)(1) of the WTA software. GTIS explained that it 1988, Conf. Report to Accompany H.R. 3, H.R. Rep. Act, the Department’s practice is to converts the Indian Rupee to the U.S. No. 576, 100th Cong., 2nd Sess. (1988) (‘‘OTCA select, to the extent practicable, Dollar using the monthly Federal 1988’’) at 590. 12 See e.g., Expedited Sunset Review of the surrogate values which are non–export Reserve exchange rate applicable to the Countervailing Duty Order on Carbazole Violet average values, most contemporaneous relevant month of the data being Pigment 23 from India, 75 FR 13257 (March 19, with the POR, product–specific, and downloaded and converted. See Certain 2010) and accompanying Issues and Decision tax–exclusive. See, e.g., Pure Oil Country Tubular Goods from the Memorandum at pages 4-5; Expedited Sunset Review of the Countervailing Duty Order on Certain Magnesium from the People’s Republic People’s Republic of China: Final Cut-to-Length Carbon Quality Steel Plate from of China: Preliminary Results of 2007– Determination of Sales at Less Than Indonesia, 70 FR 45692 (August 8, 2005) and 2008 Antidumping Duty Administrative Fair Value, Affirmative Final accompanying Issues and Decision Memorandum at Review, 74 FR 27090 (June 8, 2009), Determination of Critical page 4; See Corrosion-Resistant Carbon Steel Flat Products from the Republic of Korea: Final Results unchanged in Pure Magnesium from the Circumstances, and Final Determination of Countervailing Duty Administrative Review, 74 People’s Republic of China: Final of Targeted Dumping, 75 FR 20335 FR 2512 (January 15, 2009) and accompanying Results of Antidumping Duty (April 19, 2010), and accompanying Issues and Decision Memorandum at pages 17, 19- Administrative Review, 74 FR 66089 Issues and Decision Memorandum at 20; See Certain Hot-Rolled Carbon Steel Flat Products from Thailand: Final Results of (December 14, 2009). The record shows Comment 4. Countervailing Duty Determination, 66 FR 50410 that the Indian import statistics However, the data reported in the (October 3, 2001) and accompanying Issues and represent import data that are Global Trade Atlas (‘‘GTA’’) software, Decision Memorandum at page 23.

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Index (‘‘WPI’’) as published in the from countries identified as silicon must be limited to the issues raised in International Financial Statistics of the metal or ferrosilicon producers by the the written comments and may be filed International Monetary Fund. USGS for ferroalloys published by the no later than five days after the time We used the following surrogate U.S. Department of the Interior, dated limit for filing the case briefs. See 19 values in our preliminary results of September 2009. For a more detailed CFR 351.309(d). Parties submitting review (see Surrogate Value discussion, see id. at 4. written comments or rebuttal comments Memorandum for details). We valued For direct labor, indirect labor, and are requested to provide the Department charcoal, petroleum coke, wood, carbon packing labor, pursuant to a recent with an additional copy of those electrodes, aluminum scrap, and decision by the Court of Appeals for the comments on diskette. Any interested polyethylene/polypropylene bags using Federal Circuit, we have calculated an party may request a hearing within 30 June 2008 through May 2009 weighted– hourly wage rate to value the reported days of publication of these preliminary average Indian import values derived labor input by averaging earnings and/ results. See 19 CFR 351.310(c). Any from the ‘‘GTA.’’ See http:// or wages in countries that are hearing, if requested, ordinarily will be www.gtis.com/gta.htm. The Indian economically comparable to the PRC held two days after the scheduled date import statistics that we obtained from and that are significant producers of for submission of rebuttal briefs. See 19 the GTA were published by the comparable merchandise. For a more CFR 351.310(d). Parties should confirm Directorate General of Commercial detailed discussion, see id. by telephone the date, time, and Intelligence and Statistics of the Lastly, we valued selling, general and location of the hearing two days before Ministry of Commerce and Industry, administrative expenses, factory the scheduled date. Government of India, and are overhead costs, and profit using the The Department will issue the final contemporaneous with the POR. See contemporaneous 2008–2009 financial results of the administrative review, Surrogate Value Memorandum at 1. statements of FACOR Alloys Ltd., VBC which will include the results of its We valued quartz using the price of Ferro Alloys Ltd., Sova Ispat Alloys analysis of issues raised in the briefs, Grade I quartz with a silicon dioxide (Mega Projects) Ltd., and Saturn Ferro within 120 days of publication of these content of 98 percent or higher from the Alloys Private Ltd., Indian producers of preliminary results, in accordance with Indian Bureau of Mines’ publication: merchandise that is comparable to section 751(a)(3)(A) of the Act, unless 2007 edition of the Indian Minerals subject merchandise. Id. at 9. We did the time limit is extended. Yearbook (‘‘IBM Yearbook’’). We inflated not use the 2008–2009 financial Assessment Rates the value for quartz using the POR statement of Centom Steels and Ferro average WPI rate. Id at 3. Alloys Ltd. placed on the record by Pursuant to 19 CFR 351.212, the We valued coal using Grade A coal Shanghai Jinneng, because it contained Department will determine, and CBP prices obtained from the IBM Yearbook. evidence of subsidies. shall assess, antidumping duties on all We inflated the value for coal using the In accordance with 19 CFR appropriate entries of subject POR average WPI rate. Id. 351.301(c)(3)(ii), interested parties may merchandise in accordance with the We valued electricity using rates for submit publicly available information final results of this review. For large industries at 33KV, as published with which to value FOPs in the final assessment purposes, the Department by the Central Electricity Authority of results of review within 20 days after calculated exporter/importer- (or the Government of India in ‘‘Electricity the date of publication of the customer) -specific assessment rates for Tariff & Duty and Average Rates of preliminary results of review. merchandise subject to this review. Electricity Supply in India’’, dated Where appropriate, the Department March 2008. These electricity rates Currency Conversion calculated an ad valorem rate for each represent actual country–wide, publicly We made currency conversions into importer (or customer) by dividing the available information on tax–exclusive U.S. dollars, in accordance with section total dumping margins for reviewed electricity rates charged to industries in 773A(a) of the Act, based on the sales to that party by the total entered India. As the rates listed in this source exchange rates in effect on the dates of values associated with those became effective on a variety of different the U.S. sales as certified by the Federal transactions. For duty–assessment rates dates, we are not adjusting the average Reserve Bank. calculated on this basis, the Department value for inflation. For additional will direct CBP to assess the resulting details, see id. Preliminary Results of Review ad valorem rate against the entered We valued truck freight using a per– We preliminarily determine that no customs values for the subject unit average rate calculated from POR dumping margin exists for Shanghai merchandise. Where appropriate, the data on the following web site: http:// Jinneng for the period June 1, 2008 Department calculated a per–unit rate www.infobanc.com/logistics/ through July 31, 2009. for each importer (or customer) by logtruck.htm. The logistics section of dividing the total dumping margins for this website contains inland freight Disclosure reviewed sales to that party by the total truck rates between many large Indian The Department will disclose sales quantity associated with those cities. Id. at 8. calculations performed for these transactions. For duty–assessment rates We valued rail freight using a per– preliminary results to the parties within calculated on this basis, the Department unit average rate from http:// 10 days of the date of the public will direct CBP to assess the resulting www.indianrailways.gov.in, the Indian announcement of the results of this per–unit rate against the entered Ministry of Railways website. Id. We review in accordance with 19 CFR quantity of the subject merchandise. inflated the value for rail freight using 351.224(b). Where an importer- (or customer) the POR average WPI rate. Id. -specific assessment rate is de minimis Shanghai Jinneng claimed silica fume Comments (i.e., less than 0.50 percent), the as a by–product offset since it produced Interested parties may submit written Department will instruct CBP to assess silica fume and sold a portion of this comments no later than 30 days after the that importer (or customer’s) entries of production during the POR. We valued date of publication of these preliminary subject merchandise without regard to silica fume using GTA data for entries results of review. See 19 CFR antidumping duties. The Department under HTS 2811.22 (silicon dioxide) 351.309(c)(1)(ii). Rebuttal comments intends to instruct CBP to liquidate

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entries containing subject merchandise DEPARTMENT OF COMMERCE 2009, the sole respondent in the prior exported by the PRC–wide entity at the review, the majority Spungen family- PRC–wide rate in the final results of this International Trade Administration owned joint-venture Peer Bearing review. The Department intends to issue [A–570–601] Company Ltd.—Changshan (‘‘PBCD/ appropriate assessment instructions CPZ’’) and its wholly Spungen-family- directly to CBP 15 days after publication Tapered Roller Bearings and Parts owned U.S. sales affiliate, Peer Bearing of the final results of this review. Thereof, Finished or Unfinished, From Company (‘‘PBCD/Peer’’) (collectively the People’s Republic of China: ‘‘PBCD’’), requested that the Department Cash Deposit Requirements Preliminary Results of the 2008–2009 conduct an administrative review of its Administrative Review of the sales of subject merchandise prior to the The following cash deposit Antidumping Duty Order acquisition of both companies by AB requirements will be effective for SKF during the POR. On June 30, 2009, AGENCY: shipments of subject merchandise from Import Administration, the wholly AB SKF-owned Changshan the PRC entered, or withdrawn from International Trade Administration, Peer Bearing Company, Ltd. (‘‘SKF/ warehouse, for consumption on or after Department of Commerce. CPZ’’) and its wholly AB SKF-owned SUMMARY: In response to requests from the publication date of the final results U.S. sales affiliate, Peer Bearing interested parties, the Department of of the review, as provided by sections Company (‘‘SKF/Peer’’) (collectively Commerce (‘‘Department’’) is currently 751(a)(1) and (a)(2)(C) of the Act: (1) for ‘‘SKF’’), requested that the Department all respondents receiving a separate rate, conducting the 2008–2009 administrative review of the conduct an administrative review of its the cash deposit rate will be that antidumping duty order on tapered sales of subject merchandise subsequent established in the final results of the to the acquisition of the PBCD roller bearings and parts thereof, 3 review; (2) for previously investigated or finished or unfinished (‘‘TRBs’’), from companies during the POR. On June reviewed PRC and non–PRC exporters the People’s Republic of China (‘‘PRC’’), 30, 2009, the Timken Company, of not listed above that have separate rates, covering the period June 1, 2008, Canton, Ohio (‘‘Petitioner’’) requested the cash deposit rate will continue to be through May 31, 2009. We have that the Department conduct an the exporter–specific rate published for preliminarily determined that sales have administrative review of all entries of the most recent period; (3) for all PRC been made below normal value (‘‘NV’’) subject merchandise produced and/or exporters of subject merchandise that by certain companies subject to this exported by CPZ, regardless of its have not been found to be entitled to a review. If these preliminary results are ownership during the POR. separate rate, the cash deposit rate will adopted in our final results of this On June 30, 2009, Hubei New Torch be the PRC–wide rate of 139.49 percent; review, we will instruct U.S. Customs Science & Technology Company Co., Ltd. (‘‘New Torch’’), a producer and and (4) for all non–PRC exporters of and Border Protection (‘‘CBP’’) to assess exporter of subject merchandise, also subject merchandise which have not antidumping duties on entries of subject requested that the Department conduct received their own rate, the cash deposit merchandise during the period of an administrative review of its sales of rate will be the rate applicable to the review (‘‘POR’’) for which the importer- specific assessment rates are above de subject merchandise. On July 29, 2009, PRC exporters that supplied that non– the Department initiated the PRC exporter. These deposit minimis. Interested parties are invited to administrative review of the requirements, when imposed, shall comment on these preliminary results. antidumping duty order on TRBs from remain in effect until further notice. We will issue final results no later than the PRC for the period June 1, 2008, 4 Notification to Importers 120 days from the date of publication of through May 31, 2009. this notice. On August 26, 2009, the Department issued its antidumping duty This notice also serves as a DATES: Effective Date: July 15, 2010. questionnaire to PBCD, SKF, and New preliminary reminder to importers of FOR FURTHER INFORMATION CONTACT: their responsibility under 19 CFR Torch. Between October 14, 2009, and Brendan Quinn or Trisha Tran, AD/CVD June 18, 2010, PBCD, SKF, and New 351.402(f) to file a certificate regarding Operations, Office 8, Import the reimbursement of antidumping Torch responded to the Department’s Administration, International Trade original and supplemental duties prior to liquidation of the Administration, U.S. Department of relevant entries during this review questionnaires. On October 1, 2009, we Commerce, 14th Street and Constitution invited all interested parties to submit period. Failure to comply with this Avenue, NW., Washington, DC 20230; requirement could result in the publicly available information to value telephone: (202) 482–5848 or (202) 482– factors of production (‘‘FOPs’’) for Secretary’s presumption that 4852, respectively. consideration in the Department’s reimbursement of antidumping duties Background preliminary results of review. On occurred and the subsequent assessment December 7, 2009, SKF submitted of double antidumping duties. On June 15, 1987, the Department published in the Federal Register the publicly available information to value The Department is issuing and antidumping duty order on TRBs from FOPs for the preliminary results. On publishing these preliminary results of the PRC.1 On June 1, 2009, the December 17, 2009, and June 16, 2010, administrative review in accordance Department published a notice of PBCD submitted surrogate value with section 777(i)(1) of the Act, and 19 opportunity to request an administrative CFR 351.221(b)(4). To Request Administrative Review, 74 FR 26202 review of the antidumping duty order (June 1, 2009). 2 Dated: July 7, 2010. on TRBs from the PRC. On June 30, 3 Without consideration of ownership, the Ronald K. Lorentzen, Changshan-based TRB production facility is 1 See Notice of Antidumping Duty Order: Tapered referred to as ‘‘CPZ’’ and the Illinois-based U.S. sales Deputy Assistant Secretary for Import Roller Bearings and Parts Thereof, Finished or affiliate is referred to as ‘‘Peer.’’ Administration. Unfinished, From the People’s Republic of China, 4 See Initiation of Antidumping and [FR Doc. 2010–17299 Filed 7–14–10; 8:45 am] 52 FR 22667 (June 15, 1987). Countervailing Duty Administrative Reviews and 2 See Antidumping or Countervailing Duty Order, Deferral of Administrative Review, 74 FR 37690 BILLING CODE 3510–DS–S Finding, or Suspended Investigation; Opportunity (July 29, 2009).

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information for the Department’s 8708.99.80.15 7 and 8708.99.80.80.8 Non-Market Economy Country Status consideration. From December 17, 2009, Although the HTSUS item numbers are Pursuant to section 771(18)(C)(i) of through June 18, 2010, Petitioner provided for convenience and customs the Act, any determination that a foreign submitted comments and publicly purposes, the written description of the country is an NME country shall remain available information to value FOPs for scope of the order is dispositive. in effect until revoked by the the preliminary results. On May 5, 2010, administering authority. In every case Initiation of Scope Determination of in its supplemental response to the conducted by the Department involving New Torch’s Wheel Hub Assemblies Department’s questionnaire, New Torch the PRC, the PRC has been treated as a submitted publicly available From October 30, 2009, through May NME country.9 None of the parties to information regarding the valuation of 5, 2010, in various supplemental this review has contested such certain inputs.5 questionnaires, New Torch stated that it treatment. Accordingly, we calculated normal value in accordance with section On March 2, 2010, the Department produced and sold wheel hub assemblies to the United States during 773(c) of the Act, which applies to NME published a notice in the Federal countries. Register extending the time limit for the the POR, which it asserted were not preliminary results of review by the full subject to the scope of the order on Surrogate Country 120 days allowed under section TRBs. On June 15, 2010, the Department Section 773(c)(1) of the Act directs the 751(a)(3)(A) of the Tariff Act of 1930, as initiated two scope inquiries on wheel Department to base NV on the NME amended (‘‘the Act’’), to July 7, 2010.6 hub assemblies produced by PRC producer’s FOPs, valued in a surrogate producers that are unrelated to the market-economy (‘‘ME’’) country or Period of Review respondents in the instant countries considered to be appropriate The POR is June 1, 2008, through May administrative review. Subsequently, on by the Department. In accordance with 31, 2009. June 17, 2010, New Torch requested that section 773(c)(4) of the Act, in valuing the Department accept a revised U.S. the FOPs, the Department shall use, to Scope of the Order sales and FOP database, which would the extent possible, the prices or costs include sales and FOP information of the FOPs in one or more market Imports covered by this order are regarding New Torch’s wheel hub economy countries that are: (1) At a shipments of tapered roller bearings and assemblies sold to the United States level of economic development parts thereof, finished and unfinished, during the POR. On July 6, 2010, the comparable to that of the NME country; from the PRC; flange, take up cartridge, Department requested revised FOP and and (2) significant producers of and hanger units incorporating tapered U.S. sales databases containing comparable merchandise. The sources roller bearings; and tapered roller information with respect to New Torch’s of the surrogate factor values are housings (except pillow blocks) wheel hub assemblies sold to the United discussed under the ‘‘Factor Valuations’’ 10 incorporating tapered rollers, with or States during the POR. section below. without spindles, whether or not for The Department’s practice with automotive use. These products are For the purposes of these preliminary respect to determining economic currently classifiable under Harmonized results, because the Department has not comparability is explained in Policy yet determined whether wheel hub Bulletin 04.1,11 which states that ‘‘OP Tariff Schedule of the United States { } (‘‘HTSUS’’) item numbers 8482.20.00, assemblies are covered by the scope of Office of Policy determines per capita 8482.91.00.50, 8482.99.15, 8482.99.45, the order on TRBs, the Department will economic comparability on the basis of per capita gross national income, as 8483.20.40, 8483.20.80, 8483.30.80, continue to base its antidumping margin reported in the most current annual 8483.90.20, 8483.90.30, 8483.90.80, calculation on New Torch’s original U.S. sales database, which does not issue of the World Development Report include wheel hub assemblies. (The World Bank).’’ However, the Department will On September 23, 2009, the determine whether New Torch’s wheel Department identified six countries as hub assemblies are covered by the scope being at a level of economic 5 On June 22, 2010, Petitioner submitted of the order on TRBs for the final development comparable to the PRC for comments regarding PBCD and SKF for the results. In addition, pursuant to the the specified POR: India, the upcoming preliminary results. SKF submitted outcome of the Department’s rebuttal comments on June 30, 2010. Petitioner then 9 See, e.g., Tapered Roller Bearings and Parts submitted further rebuttal comments on July 6, determination of whether New Torch’s Thereof, Finished and Unfinished, From the 2010; however, due to the proximity to the wheel hub assemblies are within the People’s Republic of China: Preliminary Results of deadline, the Department was unable to consider scope of the order on TRBs, the 2001–2002 Administrative Review and Partial Rescission of Review, 68 FR 7500 (February 14, these submissions for purposes of the preliminary Department intends to use the 2003), unchanged in Tapered Roller Bearings and results. appropriate databases to determine New Parts Thereof, Finished and Unfinished, from the 6 See Tapered Roller Bearings and Parts Thereof, Torch’s antidumping margin calculation People’s Republic of China: Final Results of 2001– Finished or Unfinished, from the People’s Republic for the final results. 2002 Administrative Review and Partial Rescission of China: Extension of Time Limit for the of Review, 68 FR 70488 (December 18, 2003). Preliminary Results of the 2008–2009 10 See also the Department’s memorandum Administrative Review of the Antidumping Duty 7 Effective January 1, 2007, the HTSUS entitled, ‘‘Preliminary Results of the 2008–2009 Order, 75 FR 9391 (March 2, 2010). See also subheading 8708.99.8015 is renumbered as Administrative Review of the Antidumping Duty Memorandum to the Record from Ronald 8708.99.8115. See United States International Trade Order on Tapered Roller Bearings and Parts ‘‘ ’’ Lorentzen, DAS for Import Administration, Commission ( USITC ) publication entitled, Thereof, Finished or Unfinished, from the People’s ‘‘Modifications to the Harmonized Tariff Schedule Republic of China: Surrogate Value Memorandum,’’ regarding ‘‘Tolling of Administrative Deadlines As of the United States Under Section 1206 of the dated concurrently with this notice (‘‘Surrogate a Result of the Government Closure During the Omnibus Trade and Competitiveness Act of 1988,’’ Value Memorandum’’). ’’ Recent Snowstorm, dated February 12, 2010, USITC Publication 3898 (December 2006) found at 11 See the Department’s Policy Bulletin No. 04.1, wherein all deadlines in this segment of the http://www.usitc.gov. regarding, ‘‘Non-Market Economy Surrogate Country proceeding have been extended by seven days as a 8 Effective January 1, 2007, the USHTS Selection Process,’’ (March 1, 2004) (‘‘Policy Bulletin result of the closure of the Federal Government subheading 8708.99.8080 is renumbered as 04.1’’), available on the Department’s Web site at from February 5, 2010 through February 12, 2010. 8708.99.8180; see Id. http://ia.ita.doc.gov/policy/bull04-1.html.

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Philippines, Indonesia, Colombia, the FOPs. While PBCD and SKF control over export activities. The Thailand, and Peru.12 13 submitted Indonesian and Thai data on Department analyzes each entity On October 1, 2009, the Department the record to value limited FOP inputs, exporting the subject merchandise invited all interested parties to submit Petitioner, SKF and New Torch each under a test arising from the Final comments on the surrogate country submitted surrogate values for the Determination of Sales at Less Than selection.14 On November 23, 2009, majority of the inputs using Indian Fair Value: Sparklers from the People’s Petitioner, SKF, and PBCD submitted sources, suggesting greater availability Republic of China, 56 FR 20588 (May 6, comments regarding the Department’s of appropriate surrogate value data in 1991) (‘‘Sparklers’’), as further developed selection of a surrogate country for the India. Additionally, Petitioner and SKF in the Final Determination of Sales at preliminary results. Petitioner placed the financial statements of Less Than Fair Value: Silicon Carbide submitted rebuttal surrogate country various Indian producers on the record, from the People’s Republic of China, 59 comments on December 3, 2009. In their further demonstrating the greater FR 22585 (May 2, 1994) (‘‘Silicon comments, both Petitioner and SKF availability of appropriate surrogate Carbide’’). However, if the Department requested that India be selected as the value data in India. determines that a company is wholly primary surrogate country, whereas Therefore, the Department is foreign-owned or located in a market PBCD requested the Department also preliminarily selecting India as the economy, then a separate-rate analysis consider Indonesia and Thailand as surrogate country on the basis that: potential surrogates. New Torch did not (1) It is at a similar level of economic is not necessary to determine whether it submit comments regarding surrogate development to the PRC, pursuant to is independent from government country selection. 773(c)(4) of the Act; (2) it is a significant control. Policy Bulletin 04.1 provides some producer of comparable merchandise; PBCD has demonstrated that the pre- guidance on identifying comparable and (3) we have reliable data from India acquisition CPZ was a China-Foreign merchandise and selecting a producer of that we can use to value the FOPs. joint venture, owned by two comparable merchandise. Based on an Accordingly, we have calculated NV shareholders, a PRC based company and analysis of export data obtained from using Indian prices when available and a U.S. company wholly-owned by the Global Trade Atlas, published by Global appropriate to value each respondent’s Spungen family. New Torch has stated Trade Information Services, Inc. FOPs.16 In accordance with 19 CFR that it is a joint stock limited, partially (‘‘GTA’’) for harmonized tariff schedule 351.301(c)(3)(ii), for the final results of foreign invested enterprise. Therefore, (‘‘HTS’’) subheadings 8482.20, an administrative review, interested the Department must analyze whether 8482.20.00, 8482.91, 8482.91.00, parties may submit publicly available PBCD/CPZ and New Torch have 8482.99, 8482.99.00, 8483.20, information to value the FOPs within 20 demonstrated the absence of both de 8483.20.00, 8483.30, 8483.30.90, days after the date of publication of jure and de facto government control 15 17 8708.99, the Department finds that these preliminary results. over export activities, and are therefore India, the Philippines, Indonesia, Separate Rates entitled to a separate rate. SKF Colombia, Thailand, and Peru are all submitted information indicating that producers of comparable merchandise. In proceedings involving NME SKF/CPZ is a wholly foreign-owned Finally, we have reliable data from India countries, the Department has a limited liability company. Therefore, for on the record that we can use to value rebuttable presumption that all companies within the country are the purposes of these preliminary 12 See the Department’s Memorandum from Kelly subject to government control and thus results, the Department finds that it is Parkhill, Acting Director, Office of Policy, to Wendy should be assigned a single not necessary to perform a separate-rate Frankel, Office Director, AD/CVD Operations, antidumping duty rate. It is the analysis for SKF/CPZ. Office 8, regarding, ‘‘Request for a List of Surrogate Countries for an Administrative Review of the Department’s policy to assign all a. Absence of De Jure Control Antidumping Duty Order on Tapered Roller exporters of merchandise subject to Bearings (‘‘TRB’’) from the People’s Republic of review in an NME country this single The Department considers the China (‘‘PRC’’),’’ dated September 23, 2009 rate unless an exporter can demonstrate (‘‘Surrogate Countries Memorandum’’). following de jure criteria in determining 13 See Policy Bulletin 04.1 at 2. that it is sufficiently independent so as whether an individual company may be 14 See the Department’s letter regarding, ‘‘2008– to be entitled to a separate rate. granted a separate rate: (1) An absence 2009 Administrative Review of the Antidumping Exporters can demonstrate this of restrictive stipulations associated Duty Order on Tapered Roller Bearings from the independence through the absence of with an individual exporter’s business People’s Republic of China’’ requesting all both de jure and de facto government interested parties to provide comments on and export licenses; (2) any legislative surrogate-country selection and provide surrogate enactments decentralizing control of FOP values from the potential surrogate countries 16 See Surrogate Value Memorandum; see also companies; and (3) other formal (i.e., India, Indonesia, the Philippines, Thailand, ‘‘Factor Valuations’’ section, below. Colombia, and Peru), dated October 1, 2009. 17 In accordance with 19 CFR 351.301(c)(1), for measures by the government 18 15 Export information could not be found for all the final results of this administrative review, decentralizing control of companies. HTS subheadings specified in the scope of the interested parties may submit factual information to The evidence provided by PBCD and order. As such, the Department utilized GTA data rebut, clarify, or correct factual information for all available HTS categories. GTA export submitted by an interested party less than ten days New Torch supports a preliminary statistics for India, the Philippines, Indonesia, before, on, or after, the applicable deadline for finding of de jure absence of Colombia, Thailand, and Peru only offer a basket submission of such factual information. However, government control based on the category for all categories other than 8482.20.00 the Department notes that 19 CFR 351.301(c)(1) ‘‘Tapered roller bearings, including cone and permits new information only insofar as it rebuts, following: (1) An absence of restrictive tapered roller assemblies.’’ In the case of the clarifies, or corrects information recently placed on stipulations associated with the categories beginning with the four digit 8482 and the record. The Department generally will not individual exporter’s business and 8483 heading, similar ‘NESOI’ or ‘Other’ accept the submission of additional, previously subheadings were used in the alternative, though absent-from-the-record alternative surrogate value export licenses; (2) there are applicable typically not as specific as that of the HTSUS information pursuant to 19 CFR 351.301(c)(1). See legislative enactments decentralizing category. However, in the case of the categories Glycine from the People’s Republic of China: Final control of the companies; and (3) there beginning with the four digit 8708 heading, GTA Results of Antidumping Duty Administrative are formal measures by the government export statistics for each of the potential surrogate Review and Final Rescission, in Part, 72 FR 58809 country candidates could only be found to the (October 17, 2007), and accompanying Issues and broadly defined 8708.99 subheading. Decision Memorandum (‘‘IDM’’) at Comment 2. 18 See Sparklers, 56 FR at 20589.

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decentralizing control of the preliminarily granting PBCD and New that the Department ‘‘is highly likely to companies.19 Torch a separate rate. examine objective, verifiable factors to ensure that a sale is not being made to b. Absence of De facto Control Affiliation—SKF/CPZ and Company circumvent an antidumping duty A 22 Typically the Department considers order.’’ 28 four factors in evaluating whether each In its questionnaire responses, SKF/ For the reasons stated below, we respondent is subject to de facto CPZ indicated that it was affiliated with preliminarily find New Torch’s reported government control of its export Company A. For purposes of the U.S. sales during the POR to be bona functions: (1) Whether the export prices preliminary results, the Department has fide based on the facts on the record. are set by or are subject to the approval determined not to conduct a collapsing First, the sales were made to an of a government agency; (2) whether the analysis with respect to SKF/CPZ and unaffiliated customer with the terms set respondent has authority to negotiate Company A due to insufficient by negotiation and payment received in and sign contracts and other information on the record. However, we a timely manner, indicating that the agreements; (3) whether the respondent intend to solicit additional information sales were made at arm’s-length. has autonomy from the government in with respect to this issue, and will Second, there does not seem to be making decisions regarding the address it subsequent to the preliminary anything unusual in the timing of New selection of management; and (4) results. Torch’s sales. Third, New Torch’s sales prices and quantities are similar to the whether the respondent retains the Bona Fide Sale Analysis—New Torch proceeds of its export sales and makes prices and quantities examined during independent decisions regarding New Torch reported a single sale of the POR. Fourth, there were no unusual disposition of profits or financing of subject merchandise to the United expenses arising from these sales. Fifth, losses.20 States during the POR.23 In evaluating there is no record evidence that the The Department has determined that whether or not a sale subject to review merchandise was not resold at a profit. an analysis of de facto control is critical is commercially reasonable, and Therefore, based on the totality of the in determining whether respondents therefore bona fide, the Department circumstances, the Department are, in fact, subject to a degree of considers, inter alia, such factors as (1) preliminarily finds that New Torch’s government control over export the timing of the sale; (2) the price and sales are bona fide.29 quantity; (3) the expenses arising from activities which would preclude the Successor in Interest—SKF/CPZ Department from assigning separate the transaction; (4) whether the goods rates. For PBCD and New Torch, we were resold at a profit; and (5) whether On September 11, 2008, determine that the evidence on the the transaction was made on an arms- approximately three and a half months 24 record supports a preliminary finding of length basis. The Department into the POR, PBCD/CPZ and its de facto absence of government control examines the bona fide nature of a sale Illinois-based U.S. sales affiliate, PBCD/ based on record statements and on a case-by-case basis, and the analysis Peer, were each acquired by AB SKF, a supporting documentation showing the may vary with the facts surrounding Swedish conglomerate, and henceforth 25 following: (1) Each respondent sets its each sale. In TTPC, the court affirmed known as SKF/CPZ and SKF/Peer. In own export prices independent of the the Department’s practice of considering addition, on August 28, 2009, SKF government and without the approval of that ‘‘any factor which indicates that the submitted a request for a changed a government authority; (2) each sale under consideration is not likely to circumstance review (‘‘CCR’’) to respondent retains the proceeds from its be typical of those which the producer determine that SKF/CPZ is not the 26 sales and makes independent decisions will make in the future is relevant,’’ successor-in-interest to PBCD/CPZ. On regarding disposition of profits or and that ‘‘the weight given to each factor September 30, 2009, the Department financing of losses; (3) each respondent investigated will depend on the informed parties that the information 27 has the authority to negotiate and sign circumstances surrounding the sale.’’ provided in SKF’s August 28, 2009, contracts and other agreements; and (4) In New Donghua, the Court stated that submission was sufficient to warrant a each respondent has autonomy from the the Department’s practice makes clear successor-in-interest analysis regarding government regarding the selection of SKF’s acquisition of CPZ, and that this 22 ‘‘ ’’ management.21 The identity of Company A is proprietary. determination would be performed See the Department’s memorandum entitled, ‘‘2008– within the context of the instant The evidence placed on the record of 2009 Administrative Review of the Antidumping Duty Order on Tapered Roller Bearings and Parts administrative review. this review by each respondent In determining whether one company demonstrates an absence of de jure and Thereof, Finished or Unfinished, from the People’s Republic of China: Analysis of the Preliminary is the successor to another for purposes de facto government control with Determination Margin Calculation for SKF–Owned of applying the antidumping duty law, respect to its exports of the merchandise Peer Bearing Company—Changshan,’’ dated concurrently with this notice (‘‘SKF Program the Department examines a number of under review, in accordance with the factors including, but not limited to, criteria identified in Sparklers and Analysis Memorandum’’) for further discussion. 23 See New Torch’s November 12, 2009, Section changes in: (1) Management, (2) Silicon Carbide. Therefore, we are C and D questionnaire response at C–8. 24 See Tianjin Tiancheng Pharmaceutical Co., 28 See New Donghua, 374 F. Supp. 2d at 1339. 19 See PBCD/SKF’s Joint Section A Questionnaire Ltd. v. United States, 366 F. Supp. 2d 1246, 1250 29 See Memorandum to Wendy Frankel, Director, Response, dated October 14, 2009, and New Torch’s S (‘‘TTPC’’) (CIT 2005), citing Am. Silicon Techs. v. AD/CVD Operations, Office 8, Import Section A Questionnaire Response, dated November United States, F. Supp. 2d 992, 995 (CIT 2000). Administration, through Erin Begnal, Program 2, 2009. 25 See Hebei New Donghua Amino Acid Co., Ltd. Manager, AD/CVD Operations, Office 8, from Trisha 20 See Silicon Carbide, 59 FR at 22586–87; see v. United States, 374 F. Supp. 2d 1333, 1338 (CIT Tran, International Trade Analyst, AD/CVD also Notice of Final Determination of Sales at Less 2005), (‘‘New Donghua’’) quoting Fresh Garlic from Operations, Office 8, regarding Administrative Than Fair Value: Furfuryl Alcohol From the the PRC: Final Results of Administrative Review Review of the Antidumping Duty Order Covering People’s Republic of China, 60 FR 22544, 22545 and Rescission of New Shipper Review, 67 FR Tapered Roller Bearings and Parts Thereof, (May 8, 1995). 11283 (March 13, 2002), and accompanying IDM. Finished and Unfinished, From the People’s 21 See PBCD/SKF’s Joint Section A Questionnaire 26 See TTPC, 366 F. Supp. 2d at 1250, citing Republic of China (6/1/2008–5/31/2009): Bona Fide Response, dated October 14, 2009, and New Torch’s Windmill Int’l Pte., Ltd. v. United States, F. Supp. Nature of the Sales Under Review for Hubei New Section A Questionnaire Response, dated November 2d 1303, 1307 (CIT 2002). Torch Science & Technology Co., Ltd. (‘‘New 2, 2009. 27 See TTPC, 366 F. Supp. 2d at 1263. Torch’’) (July 7, 2010).

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production facilities, (3) supplier Fair Value Comparisons sections 772(d)(3) and 772(f) of the 30 34 relationships, and (4) customer base. To determine whether sales of TRBs Act. Although no single or even several of Consistent with our determination in to the United States by respondents 35 these factors will necessarily provide a were made at less than fair value the 2006–2007 review, we have dispositive indication of succession, (‘‘LTFV’’), we compared constructed preliminarily determined to use generally the Department will consider export price (‘‘CEP’’) and export price PRODCOD as a basis for comparing NV one company to be a successor to (‘‘EP’’) to NV, as described in the ‘‘U.S. to CEP for PBCD and SKF’s sales of another company if its resulting Price’’ and ‘‘Normal Value’’ sections of subject merchandise. operation is not materially dissimilar to this notice, below, and pursuant to SKF/CPZ Existing Inventory that of its predecessor.31 Thus, if the section 771(35) of the Act. ‘‘totality of circumstances’’ demonstrates On September 11, 2008, AB SKF that, with respect to the production and U.S. Price acquired various Spungen family-owned companies, including PBCD/CPZ and sale of the subject merchandise, the new Constructed Export Price company operates as the same business PBCD/Peer. Through a share transfer entity as the prior company, the In accordance with section 772(b) of agreement, AB SKF acquired PBCD/CPZ the Act, CEP is the price at which the Department will assign the new and PBCD/Peer, including PBCD/CPZ’s subject merchandise is first sold (or company the cash-deposit rate of its assets and liabilities. Among these agreed to be sold) in the United States predecessor.32 assets were existing unsold inventory In its initial CCR request and before or after the date of importation by held by PBCD/Peer, which was subsequent responses to the or for the account of the producer or produced by PBCD/CPZ prior to the Department’s supplemental exporter of such merchandise or by a acquisition. questionnaires, SKF provided seller affiliated with the producer or SKF has argued that the acquisition of documentation demonstrating that SKF/ exporter, to a purchaser not affiliated PBCD/Peer’s unsold inventory CPZ instituted a significant change to with the producer or exporter, as constituted a CEP sale of all remaining adjusted under sections 772(c) and (d) upper management that starkly contrasts inventory to SKF/Peer as the first of the Act. In accordance with section with the management structure of unaffiliated customer, and requested 772(b) of the Act, we used CEP for PBCD/CPZ, including the appointment that the Department treat the transfer as PBCD/CPZ and SKF/CPZ’s sales where a CEP sale for the purposes of this of a new board of directors and a new the exporter first sold subject review. However, PBCD disagreed that General Manager. Additionally, SKF merchandise to its affiliated company in the inventory transfer constituted a CEP expanded its production capabilities by the United States, PBCD/Peer and SKF/ sale, arguing, that no asset transfer or acquiring two co-located affiliated Peer, respectively, which in turn sold sale of inventory was specified by the business entities and integrated the subject merchandise to unaffiliated U.S. acquisition documents.36 production capabilities into one newly customers. We calculated CEP based on For these preliminary results, the consolidated company. delivered prices to unaffiliated Department finds that SKF’s acquisition The Department finds that the totality purchasers in the United States. We of PBCD/CPZ and PBCD/Peer, pursuant of the circumstances demonstrate that made deductions from the U.S. sales to the Master Purchase Agreement SKF/CPZ is not the successor-in-interest price for movement expenses in (‘‘MPA’’), should not be treated as the to PBCD/CPZ. First, the Department accordance with section 772(c)(2)(A) of first sale to an unaffiliated customer of finds that, because SKF/CPZ has the Act. These included foreign inland the inventory held by PBCD/Peer for the replaced and restructured the freight from the plant to the port of purpose of calculating the margin of company’s top management, SKF/CPZ exportation, international freight, dumping in this administrative review. has demonstrated that the company’s brokerage and handling, marine The MPA specifies the details of the operations and production decisions are insurance, other U.S. transportation, share transfer between ownership distinct from the management and U.S. customs duty, U.S. warehousing parties upon finalization of the operations of PBCD/CPZ. Additionally, expenses, where applicable, U.S. inland acquisition agreement, which resulted we find that changes in SKF/CPZ’s freight from port to the warehouse, and in the transfer of ownership of various integration and expansion of its U.S. inland freight from the warehouse production facilities and structure, to the customer. Where foreign inland 34 See the Department’s memorandum entitled, along with SKF/CPZ’s complete freight, foreign brokerage and handling ‘‘2008–2009 Administrative Review of the management restructure, demonstrate Antidumping Duty Order on Tapered Roller fees, or international freight were that SKF/CPZ is a distinct entity from Bearings and Parts Thereof, Finished or Unfinished, provided by PRC service providers or from the People’s Republic of China: Analysis of the that of the pre-acquisition company. As paid for in renminbi, we based those Preliminary Determination Margin Calculation for such, we preliminarily determine that Spungen-Owned Peer Bearing Company— charges on surrogate rates from India. SKF/CPZ is not the successor-in-interest Changshan,’’ dated concurrently with this notice See ‘‘Factor Valuations’’ section below to the pre-acquisition PBCD/CPZ.33 (‘‘PBCD Program Analysis Memorandum’’); see also for further discussion of surrogate rates. the Department’s memorandum entitled, ‘‘2008– In accordance with section 772(d)(1) of 2009 Administrative Review of the Antidumping 30 See, e.g., Ball Bearings and Parts Thereof from Duty Order on Tapered Roller Bearings and Parts France: Final Results of Changed-Circumstances the Act, the Department deducted credit Thereof, Finished or Unfinished, from the People’s Review, 75 FR 34688 (June 18, 2010), and IDM at expenses, inventory carrying costs and Republic of China: Analysis of the Preliminary Comment 1. indirect selling expenses from the U.S. Determination Margin Calculation for SKF–Owned 31 See, e.g., Fresh and Chilled Atlantic Salmon price, all of which relate to commercial Peer Bearing Company—Changshan,’’ dated From Norway; Final Results of Changed concurrently with this notice (‘‘SKF Program Circumstances Antidumping Duty Administrative activity in the United States. Finally, we Analysis Memorandum’’). Review, 64 FR 9979 (March 1, 1999). deducted CEP profit, in accordance with 35 See Tapered Roller Bearings and Parts Thereof, 32 See Id at 9980; see also Brass Sheet and Strip Finished and Unfinished, From the People’s from Canada: Final Result of Administrative Manager, AD/CVD Operations, Office 8, from Republic of China: Final Results of the Review, 57 FR 20461 (May 13, 1992), and IDM at Brendan Quinn, International Trade Analyst, AD/ Administrative Review, 74 FR 3987 (January 22, Comment 1. CVD Operations, Office 8, entitled ‘‘Tapered Roller 2009), and accompanying IDM at Comment 3. 33 See Memorandum to Wendy Frankel, Director, Bearings from the People’s Republic of China: 36 For a complete analysis of the arguments AD/CVD Operations, Office 8, Import Preliminary Successor-In-Interest Determination,’’ forwarded by parties on this issue, see SKF Program Administration, through Erin Begnal, Program dated July 7, 2010. Analysis Memorandum.

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Spungen-owned companies, including production costs invalid under our nearest digit and thus there is not a loss PBCD/Peer and PBCD/CPZ, to various normal methodologies. Under section of data by rounding, as there is with the AB SKF-owned affiliates. Therefore, as 773(c)(3) of the Act, FOPs include but data reported by the WTA software. explained by SKF, there was no sale are not limited to: (1) Hours of labor Consequently the import statistics we value specifically associated with just required; (2) quantities of raw materials obtain from GTA are in the original the TRB inventory as part of the MPA. employed; (3) amounts of energy and reporting currency of the country from Instead, SKF reported sales prices for other utilities consumed; and (4) which the data are obtained and have the inventory based on an accounting representative capital costs. The the same level of accuracy as the value it obtained from a third party Department used FOPs reported by the original data released. accounting firm for financial reporting respondents for materials, energy, labor In the instant review, PBCD and SKF purposes subsequent to the acquisition. and packing. reported sales that were further Thus, the value reported by SKF is not In past cases, it has been the manufactured or assembled in a third reflective of negotiated sales prices for Department’s practice to value various country. Consistent with the TRBs this merchandise. Therefore, the FOPs using import statistics of the 2007–2008, the Department has Department finds that the fact the SKF primary selected surrogate country from determined that the finishing operations acquired the inventory of PBCD/Peer World Trade Atlas (‘‘WTA’’), as in the third country do not constitute simply reflects the fact the inventory in published by Global Trade Information substantial transformation and, hence, question would remain with SKF/Peer Services (‘‘GTIS’’).39 However, in do not confer a new country of origin for and was not being retained by the October 2009, the Department learned antidumping purposes.41 As such, we former owner of PBCD/Peer. that Indian import data obtained from have determined NV for such sales Accordingly, we are examining the sales the WTA, as published by GTIS, began based on the country of origin (i.e., the of this merchandise from SKF to its first identifying the original reporting PRC), pursuant to section 773(a)(3)(A) of unaffiliated downstream customer, and currency for India as the U.S. Dollar. the Act, because PBCD and SKF knew have relied on the U.S. sales prices of The Department then contacted GTIS at the time of the sale of merchandise SKF/Peer’s downstream sales for about the change in the original that it was destined for export. The purposes of calculating SKF/Peer’s reporting currency for India from the Department also included the further dumping margin.37 Indian Rupee to the U.S. Dollar. manufacturing and assembly costs Officials at GTIS explained that while incurred in the third country in the NV Export Price GTIS obtains data on imports into India calculation, as well as the expense of Because New Torch sold subject directly from the Ministry of Commerce, transporting the merchandise from the merchandise to unaffiliated purchasers Government of India, as denominated factory in the PRC to the further in the United States prior to importation and published in Indian Rupees, the manufacturing plant in the third into the United States, we used EP for WTA software is limited with regard to country.42 these transactions in accordance with the number of significant digits it can Factor Valuations section 772(a) of the Act. We calculated manage. Therefore, GTIS made a EP based on the delivery method decision to change the original reporting In accordance with section 773(c) of reported to the first unaffiliated currency for Indian data from the Indian the Act, we calculated NV based on purchaser in the United States. New Rupee to the U.S. Dollar in order to FOPs reported by respondents for the Torch’s sales required no deductions reduce the loss of significant digits POR. In accordance with 19 CFR included in section 772(c) of the Act.38 when obtaining data through the WTA 351.408(c)(1), the Department will normally use publicly available Normal Value software. GTIS explained that it converts the Indian Rupee to the U.S. information to find an appropriate We compared NV to individual EP Dollar using the monthly Federal surrogate value (‘‘SV’’) to value FOPs, and CEP transactions in accordance Reserve exchange rate applicable to the but when a producer sources an input with section 777A(d)(2) of the Act, as relevant month of the data being from a market economy and pays for it appropriate. Section 773(c)(1) of the Act downloaded and converted.40 in market economy currency, the provides that the Department shall Because of the conversion and Department normally will value the determine NV using an FOP rounding problems in the data reported factor using the actual price paid for the methodology if: (1) The merchandise is by WTA, the Department will now input.43 To calculate NV, we multiplied exported from an NME country; and obtain import statistics from Global the reported per-unit factor- (2) the information does not permit the Trade Atlas (‘‘GTA’’), as published by consumption rates by publicly available calculation of NV using home market GTIS, for valuing various FOPs. The surrogate values (except as discussed prices, third country prices, or data reported in the GTA software below). In selecting the surrogate values, constructed value under section 773(a) reports import statistics, such as from we considered the quality, specificity, of the Act. When determining NV in an India, in the original reporting currency and contemporaneity of the data.44 As NME context, the Department will base and thus this data corresponds to the NV on FOPs because the presence of original currency value reported by each 41 See Tapered Roller Bearings and Parts Thereof, government controls on various aspects country. Additionally, the data reported Finished or Unfinished, from the People’s Republic of these economies renders price of China: Final Results of 2007–2008 Administrative in the GTA software is reported to the Review of the Antidumping Duty Order, 75 FR 844 comparisons and the calculation of (January 6, 2010) (‘‘TRBs 2007–2008’’), and 39 See Certain Preserved Mushrooms from the accompanying IDM at Comment 1. 37 See Id. for further discussion of this issue. People’s Republic of China: Preliminary Results of 42 See PBCD and SKF Program Analysis 38 See the Department’s memorandum entitled, Antidumping Duty New Shipper Review, 74 FR Memoranda. ‘‘2008–2009 Administrative Review of the 50946, 50950 (October 2, 2009). 43 See 19 CFR 351.408(c)(1); see also Shakeproof Antidumping Duty Order on Tapered Roller 40 See Certain Oil Country Tubular Goods from Assembly Components Div of Ill Tool Works v. Bearings and Parts Thereof, Finished or Unfinished, the People’s Republic of China: Final Determination United States, 268 F. 3d 1376, 1382–1383 (Fed. Cir. from the People’s Republic of China: Analysis of the of Sales at Less Than Fair Value, Affirmative Final 2001) (affirming the Department’s use of market- Preliminary Determination Margin Calculation for Determination of Critical Circumstances, and Final based prices to value certain FOPs). Hubei New Torch Science & Technology Co., Ltd.,’’ Determination of Targeted Dumping, 75 FR 20335 44 See, e.g., Fresh Garlic From the People’s dated concurrently with this notice (‘‘New Torch (April 19, 2010) and accompanying IDM at Republic of China: Final Results of Antidumping Program Analysis Memorandum’’). Comment 4. Continued

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appropriate, we adjusted input prices by In accordance with the OTCA 1988 purchases to be of significant quantities including freight costs to make them legislative history, the Department (i.e., 33 percent or more), in accordance delivered prices. Specifically, we added continues to apply its long-standing with our statement of policy as outlined to import surrogate values a surrogate practice of disregarding surrogate values in Antidumping Methodologies: Market freight cost using the shorter of the if it has a reason to believe or suspect Economy Inputs,53 we used the actual reported distance from the domestic the source data may be subsidized.48 In purchases of these inputs to value the supplier to the factory or the distance this regard, the Department has inputs. from the nearest seaport to the factory previously found that it is appropriate Accordingly, we valued certain of where appropriate. This adjustment is to disregard such prices from India, respondents’ inputs using the ME prices in accordance with the Court of Appeals Indonesia, South Korea and Thailand paid for in ME currencies for the inputs for the Federal Circuit’s decision in because we have determined that these where the total volume of the input Sigma Corp. v. United States, 117 F.3d countries maintain broadly available, purchased from all ME sources during 1401, 1407–08 (Fed. Cir. 1997). A non-industry specific export the POR exceeds or is equal to 33 detailed description of all surrogate subsidies.49 Based on the existence of percent of the total volume of the input values used for PBCD/CPZ, SKF/CPZ, these subsidy programs that were purchased from all sources during the and New Torch can be found in the generally available to all exporters and period. Where the quantity of the Surrogate Value Memorandum. producers in these countries at the time reported input purchased from ME For the preliminary results, in of the POR, the Department finds that it suppliers was below 33 percent of the accordance with the Department’s is reasonable to infer that all exporters total volume of the input purchased practice, except where noted below, we from India, Indonesia, South Korea and from all sources during the POR, and used data from the Indian import Thailand may have benefitted from were otherwise valid, we weight- Statistics in the GTA and other publicly these subsidies. Additionally, we averaged the ME input’s purchase price available Indian sources in order to disregarded prices from NME with the appropriate surrogate value for calculate surrogate values for PBCD/ countries.50 Finally, imports that were the input according to their respective CPZ, SKF/CPZ, and New Torch’s FOPs labeled as originating from an shares of the reported total volume of (i.e. direct materials, energy, and ‘‘unspecified’’ country were excluded purchases.54 Where appropriate, we packing materials) and certain from the average value, because the added freight to the ME prices of inputs. movement expenses. In selecting the Department could not be certain that For a detailed description of the actual best available information for valuing they were not from either an NME values used for the ME inputs reported, FOPs in accordance with section country or a country with generally see the Department’s analysis 773(c)(1) of the Act, the Department’s available export subsidies.51 memoranda dated concurrently with practice is to select, to the extent PBCD and SKF claim that certain of this notice. practicable, surrogate values which are their reported raw material inputs were Among the FOPs for which the non-export average values, most sourced from an ME country and paid Department calculated SVs using Indian contemporaneous with the POR, for in ME currencies. When a import statistics are bearing-quality steel product-specific, and tax-exclusive.45 respondent sources inputs from an ME bar, cage steel, steel by-product, cone The record shows that data in the Indian supplier in meaningful quantities, we spacer, coal, anti-rust oil, and all Import Statistics, as well as those from use the actual price paid by respondent packing materials. the other Indian sources, are for those inputs, except when prices In their June 16, 2010, surrogate value contemporaneous with the POI, may have been distorted by dumping or submission, PBCD expressed concerns product-specific, and tax-exclusive.46 In subsidies.52 Where we found ME regarding the quality of certain SV those instances where we could not information from the primary surrogate obtain publicly available information Determination, 74 FR 9600 (March 5, 2009), country, India, specifically in regard to contemporaneous to the POI with which unchanged in Certain Kitchen Appliance Shelving the valuation of bearing quality steel bar and Racks From the People’s Republic of China: to value factors, we adjusted the Final Determination of Sales at Less than Fair and wire rod inputs. In these comments, surrogate values using, where Value, 74 FR 36656 (July 24, 2009). PBCD argues that the Indian import data appropriate, the Indian Wholesale Price 48 Omnibus Trade and Competitiveness Act of for HTS 7228.30.29 (Other bars and rods Index (‘‘WPI’’) as published in the IMF’s 1988, Conf. Report to Accompany H.R. 3, H.R. Rep. of other alloy steel; angles, shapes and 47 No. 576, 100th Cong., 2nd Sess. (1988) (‘‘OTCA International Financial Statistics. 1988’’) at 590. sections, of other alloy steel; hollow 49 See e.g., Expedited Sunset Review of the drill bars and rods, of alloy or non-alloy Duty New Shipper Review, 67 FR 72139 (December Countervailing Duty Order on Carbazole Violet steel; Other bars and rods, not further 4, 2002), and accompanying IDM at Comment 6; Pigment 23 from India, 75 FR 13257 (March 19, worked than hot-rolled, hot-drawn or and Final Results of First New Shipper Review and 2010) and accompanying Issues and Decision First Antidumping Duty Administrative Review: Memorandum at pages 4–5; Expedited Sunset extruded; Bright Bars; Other), submitted Certain Preserved Mushrooms From the People’s Review of the Countervailing Duty Order on Certain by Petitioner and SKF as a surrogate to Republic of China, 66 FR 31204 (June 11, 2001), and Cut-to-Length Carbon Quality Steel Plate from value bearing quality steel bar, are accompanying IDM at Comment 5. Indonesia, 70 FR 45692 (August 8, 2005) and aberrational due to the relatively high 45 See, e.g., Notice of Preliminary Determination accompanying Issues and Decision Memorandum at of Sales at Less Than Fair Value, Negative page 4; See Corrosion-Resistant Carbon Steel Flat value when benchmarked against Preliminary Determination of Critical Products from the Republic of Korea: Final Results similar bearing and roller quality steel Circumstances and Postponement of Final of Countervailing Duty Administrative Review, 74 HTS categories in the U.S. and potential Determination: Certain Frozen and Canned FR 2512 (January 15, 2009) and accompanying surrogate countries. Furthermore, PBCD Warmwater Shrimp From the Socialist Republic of Issues and Decision Memorandum at pages 17, Vietnam, 69 FR 42672, 42682 (July 16, 2004), 19–20; See Certain Hot-Rolled Carbon Steel Flat reiterates the position previously unchanged in Final Determination of Sales at Less Products from Thailand: Final Results of Than Fair Value: Certain Frozen and Canned Countervailing Duty Determination, 66 FR 50410 53 See Antidumping Methodologies: Market Warmwater Shrimp from the Socialist Republic of (October 3, 2001) and accompanying Issues and Economy Inputs, Expected Non-Market Economy Vietnam, 69 FR 71005 (December 8, 2004). Decision Memorandum at page 23. Wages, Duty Drawback; and Request for Comments, 46 See Surrogate Value Memorandum. 50 See Id. 71 FR 61716, 61717 (October 19, 2006) 47 See, e.g., Certain Kitchen Appliance Shelving 51 See Id. (‘‘Antidumping Methodologies: Market Economy and Racks From the People’s Republic of China: 52 See Antidumping Duties; Countervailing Inputs’’). Preliminary Determination of Sales at Less Than Duties; Final Rule, 62 FR 27296, 27366 (May 19, 54 See Antidumping Methodologies: Market Fair Value and Postponement of Final 1997). Economy Inputs, 71 FR at 61718.

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forwarded by SKF in its December 7, wire rod in this category are circular, as we are not adjusting the average value 2009, surrogate value submission that, are the respondents’ inputs. Using the for inflation. In other words, the consistent with the analysis of potential same method of analysis, Indian import Department did not inflate this value to wire rod SVs performed in the prior statistics for steel bar under Indian HTS the POR because the utility rates review, certain data considerations category 7228.30.29 appear to be represent current rates, as indicated by compel the Department to reject Indian reasonably consistent and do not have the effective date listed for each of the import information for HTS 7228.50.90 wide fluctuations between the AUVs rates provided.61 (Other bars and rods of other alloy steel; from individual countries. As it is our We valued international air freight angles, shapes and sections, of other preference to use SVs from within the using rates based on the market alloy steel; hollow drill bars and rods, primary surrogate country, and because economy air freight purchases of SKF of alloy or non-alloy steel; Other bars we do not find that the Indian import and PBCD.62 and rods, not further worked than cold- data under Indian HTS category We valued water using the revised formed or cold-finished: Other) in favor 7228.30.29 are aberrational, we Maharashtra Industrial Development of Thai import data for HTS 7228.50.90 preliminarily determine to value steel Corporation water rates available at (Other bars and rods of other alloy steel; bar from Indian HTS category 56 http://www.midcindia.com/water- angles, shapes and sections, of other 7228.30.29. supply.63 alloy steel; hollow drill bars and rods, We valued truck freight expenses of alloy or non-alloy steel; Other bars using a per-unit average rate calculated The Department is valuing and rods, not further worked than cold- from data on the infobanc Web site: international ocean freight from the PRC formed or cold-finished: Other) to value http://www.infobanc.com/logistics/ to the United States using data obtained wire rod inputs in the instant review. logtruck.htm. The logistics section of from the Descartes Carrier Rate Retrieval Petitioner addressed the steel bar and this Web site contains inland freight Database (‘‘Descartes’’), which can be wire rod surrogate issues in its June 18, truck rates between many large Indian accessed via http://descartes.com/. The 2010, surrogate value comments, as well cities.57 Department has calculated the period- as additional comments submitted on We valued inland water freight using average international freight rate by June 21, 2010. While Petitioner price data for barge freight reported in obtaining rates from multiple carriers maintains that the Department should a March 19, 2007, article published in for a single day in each quarter of the value all FOPs, including wire rod and The Hindu Business Line.58 Since the POR. For any rate that the Department steel bar, using surrogate data from the inland water transportation rates are not determined was from a non-market primary surrogate country (i.e. India), it contemporaneous with the POR, we economy carrier, the Department has adds that, should the Department inflated the rates using the Indian WPI not included that rate in the period- determine that Thai data is preferable to inflator. average international freight calculation. Indian data for the valuation of wire rod We valued brokerage and handling Additionally, the Department has not inputs, as was determined in the prior using a price list of export procedures included any charges included in the review, Thai import data for HTS necessary to export a standardized cargo rate that are covered by brokerage and 7228.50.10 55 are a more appropriate of goods in India. The price list is handling charges that the respondent surrogate to value wire rod than the compiled based on a survey case study incurred and are valued by the reported Thai import data for HTS 7228.50.90 of the procedural requirements for market economy purchase or the suggested by PBCD and SKF. trading a standard shipment of goods by appropriate surrogate value in the 64 For the preliminary results, we have ocean transport in India that is calculation. determined to use contemporaneous published in Doing Business 2010: Because PBCD and SKF had Thai import data from HTS category India, published by the World Bank.59 shipments of subject merchandise to a 7228.50.10 and contemporaneous Since brokerage and handling rates are third country for further manufacturing Indian import data from HTS category not contemporaneous with the POR, we during the POR, we added the 7228.30.29 to calculate a SV for roller inflated the rates using the Indian WPI additional international freight cost to quality steel wire rod and bearing inflator. NV, and applied the surrogate value for quality steel bar, respectively. As in We valued electricity using the international freight from the PRC to the TRBs 2007–2008, the Indian import updated electricity price data for small, third country. The Department valued statistics for HTS category 7228.50.90 medium, and large industries, as ocean freight using publicly available show wide variations in the average unit published by the Central Electricity data collected from Maersk Line.65 values (‘‘AUVs’’) between the individual Authority, an administrative body of the For direct, indirect, and packing countries listed as exporters in the data. Government of India, in its publication labor, pursuant to a recent decision by Thai import statistics under Thai HTS titled ‘‘Electricity Tariff & Duty and the Court of Appeals for the Federal categories 7228.50.10 and 7228.50.90 do Average Rates of Electricity Supply in Circuit, we have calculated an hourly not exhibit the wide level of AUV India,’’ dated March 2008. These wage rate to use in valuing each variance between imports from electricity rates represent actual respondent’s reported labor input by individual countries that is seen in the country-wide, publicly-available averaging earnings and/or wages in Indian data. Thus, we have determined information on tax-exclusive electricity countries that are economically to use Thai data to value steel wire rod. rates charged to small, medium, and comparable to the PRC and that are We have used Thai HTS category large industries in India.60 Because the significant producers of comparable 7228.50.10 to value wire rod, as it is rates listed in this source became more specific to the input than Thai effective on a variety of different dates, 61 See, e.g., Wire Decking from the People’s HTS category 7228.50.90 because the Republic of China: Final Determination of Sales at 56 See Surrogate Value Memorandum for further Less Than Fair Value, 75 FR 32905 (June 10, 2010), analysis. and accompanying IDM at Comment 3. 55 Other bars and rods of other alloy steel; angles, 57 62 shapes and sections, of other alloy steel; hollow See Id. See Surrogate Value Memorandum. drill bars and rods, of alloy or non-alloy steel; Other 58 See Id. 63 See Id. bars and rods, not further worked than cold-formed 59 See Id. 64 See Id. or cold-finished: Of circular cross-section. 60 See Id. 65 See Id.

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merchandise.66 Because this wage rate these preliminary results of review.70 importer- (or customer) -specific does not separate the labor rates into Rebuttals to written comments may be assessment rate is de minimis (i.e., less different skill levels or types of labor, filed no later than five days after the than 0.50 percent), the Department will the Department has applied the same written comments are filed.71 Further, instruct CBP to assess that importer (or wage rate to all skill levels and types of parties submitting written comments customer’s) entries of subject labor reported by the respondents.67 and rebuttal comments are requested to merchandise without regard to To value factory overhead, selling, provide the Department with an antidumping duties. We intend to general and administrative expenses additional copy of those comments on instruct CBP to liquidate entries and profit, the Department used the diskette. containing subject merchandise average of the ratios derived from the Any interested party may request a exported by the PRC-wide entity at the financial statements of three Indian hearing within 30 days of publication of PRC-wide rate we determine in the final producers: SKF India Limited (for the this notice.72 Hearing requests should results of this review. The Department year ending on December 31, 2008), contain the following information: intends to issue appropriate assessment ABC Bearings Limited (for the year (1) The party’s name, address, and instructions directly to CBP 15 days ending on March 31, 2009), and FAG telephone number; (2) the number of after publication of the final results of Bearings India Limited (for the year participants; and (3) a list of the issues this review. ending on December 31, 2008).68 to be discussed. Oral presentations will Cash-Deposit Requirements Each respondent reported that steel be limited to issues raised in the briefs. scrap was recovered as a by-product of If a request for a hearing is made, parties The following cash-deposit the production of subject merchandise will be notified of the time and date for requirements will be effective upon and successfully demonstrated that the the hearing to be held at the U.S. publication of the final results of this scrap has commercial value, therefore, Department of Commerce, 14th Street administrative review for all shipments we have granted by-product offset for and Constitution Avenue, NW., of the subject merchandise from the PRC the quantities of these reported by- Washington, DC 20230.73 entered, or withdrawn from warehouse, products, valued using Indian GTA The Department will issue the final for consumption on or after the data.69 results of this administrative review, publication date, as provided by section which will include the results of its Currency Conversion 751(a)(2)(C) of the Act: (1) For PBCD, analysis of issues raised in any such SKF, and New Torch, the cash deposit Where appropriate, we made currency comments, within 120 days of rate will be their respective rates conversions into U.S. dollars, in publication of these preliminary results, established in the final results of this accordance with section 773A(a) of the pursuant to section 751(a)(3)(A) of the review, except if the rate is zero or de Act, based on the exchange rates in Act. minimis no cash deposit will be effect on the dates of the U.S. sales as Assessment Rates required; (2) for previously investigated certified by the Federal Reserve Bank. or reviewed PRC and non-PRC exporters The Department will determine, and not listed above that have separate rates, Preliminary Results of Review CBP shall assess, antidumping duties on the cash deposit rate will continue to be all appropriate entries of subject We preliminarily determine that the the exporter-specific rate published for merchandise in accordance with the following weighted-average dumping the most recent period; (3) for all PRC final results of this review. For margin exists for the period June 1, exporters of subject merchandise which assessment purposes, we calculated 2008, through May 31, 2009: have not been found to be entitled to a exporter/importer- (or customer) separate rate, the cash deposit rate will -specific assessment rates for TRBS FROM THE PRC be the PRC-wide rate of 92.84 percent; merchandise subject to this review. and (4) for all non-PRC exporters of Where appropriate, we calculated an ad Weighted- subject merchandise which have not average valorem rate for each importer (or Exporter received their own rate, the cash deposit margin customer) by dividing the total dumping (percent) rate will be the rate applicable to the margins for reviewed sales to that party PRC exporters that supplied that non- by the total entered values associated Spungen-Owned Peer Bearing PRC exporter. These deposit with those transactions. For duty- Company-Changshan ...... 52.26 requirements, when imposed, shall SKF-Owned Changshan Peer assessment rates calculated on this remain in effect until further notice. Bearing Co., Ltd ...... 9.94 basis, we will direct CBP to assess the Hubei New Torch Science & resulting ad valorem rate against the Notification to Importers Technology Co., Ltd ...... 00.00 entered customs values for the subject This notice also serves as a merchandise. Where appropriate, we preliminary reminder to importers of Disclosure and Public Comment calculated a per-unit rate for each their responsibility under 19 CFR importer (or customer) by dividing the The Department will disclose 351.402(f) to file a certificate regarding total dumping margins for reviewed calculations performed for these the reimbursement of antidumping sales to that party by the total sales preliminary results to the parties within duties prior to liquidation of the quantity associated with those five days of the date of publication of relevant entries during this review transactions. For duty-assessment rates this notice in accordance with 19 CFR period. Failure to comply with this calculated on this basis, we will direct 351.224(b). Interested parties may requirement could result in the CBP to assess the resulting per-unit rate submit written comments no later than Secretary’s presumption that against the entered quantity of the 30 days after the date of publication of reimbursement of antidumping duties subject merchandise. Where an occurred and the subsequent assessment 66 See Dorbest Ltd. v. United States, 2009–1257 at of double antidumping duties. 20 (CAFC 2010) (‘‘Dorbest’’). 70 See 19 CFR 351.309(c). 67 See Surrogate Value Memorandum. 71 See 19 CFR 351.309(d). We are issuing and publishing these 68 See Id. 72 See 19 CFR 351.310(c). preliminary results of review in 69 See Id. 73 See 19 CFR 351.310(d). accordance with sections 751(a)(1) and

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777(i)(1) of the Act, and 19 CFR [email protected]. Include the Dated: July 12, 2010. 351.213. document identifier: Stanford HCP. Therese Conant, Acting Chief, Endangered Species Division, Dated: July 7, 2010. FOR FURTHER INFORMATION CONTACT: Gary Office of Protected Resources, National Ronald K. Lorentzen, Stern (NMFS), 707–575–6060, or Sheila Marine Fisheries Service. Deputy Assistant Secretary for Import Larsen (USFWS), 916–414–6600. Dated: July 9, 2010. Administration. SUPPLEMENTARY INFORMATION Alexandra Pitts, [FR Doc. 2010–17302 Filed 7–14–10; 8:45 am] : We are Deputy Region Director, Pacific Southwest BILLING CODE 3510–DS–P extending the comment period for our jointly issued Stanford University Region, U.S. Fish and Wildlife Service. Habitat Conservation Plan, a DEIS for [FR Doc. 2010–17298 Filed 7–14–10; 8:45 am] DEPARTMENT OF COMMERCE Authorization of Incidental Take and BILLING CODES 3510–22–S, 4310–55–S Implementation of the Plan, and IA. On National Oceanic and Atmospheric April 12, 2010, we opened a 90–day DEPARTMENT OF COMMERCE Administration public comment period via a Federal Register notice (75 FR 18482). We then International Trade Administration DEPARTMENT OF THE INTERIOR made a correction to our comment period closing date via a May 18, 2010 U.S. Cleantech Trade & Investment Fish and Wildlife Service (75 FR 27708), notice. A public meeting Mission RIN 0648–XX52 was held at Stanford, CA on May 25, AGENCY: International Trade 2010. As of July 2, 2010, we received Administration, Department of Stanford University Habitat comments from four organizations and Conservation Plan; Extension of Commerce. individuals requesting an extension of ACTION: Notice. Comment Period the comment period by 45 days. In AGENCIES: National Marine Fisheries response to requests from the public, we Mission Description now extend the comment period for an Service (NMFS), National Oceanic and The United States Department of additional 45 days. The comment period Atmospheric Administration (NOAA), Commerce’s International Trade will now officially close on August 30, Commerce; Fish and Wildlife Service, Administration, U.S. and Foreign Interior (DOI). 2010, at 5 p.m. Pacific Time. Commercial Service (USFCS), and ACTION: Notice; extension of comment Background Economic Development Administration period. (EDA) are holding the first ever U.S. For background information, see our Clean Technology Trade & Investment SUMMARY: The National Marine April 12, 2010, notice (75 FR 18482). Mission to Lyon, France, November 29– Fisheries Service and the U.S. Fish and December 2, 2010 and to Brussels, Wildlife Service, are extending the Document Availability Belgium, December 2–4, 2010. This joint comment period for our joint request for Copies of the DEIS, Plan, and IA are mission will be led by senior comments on the Stanford University Department of Commerce officials Brian Habitat Conservation Plan (Plan), the available on the NMFS Southwest Region website at http:// McGowan, Deputy Assistant Secretary Draft Environmental Impact Statement for Economic Development, and Karen swr.nmfs.noaa.gov or the U.S. Fish and (DEIS) for Authorization of Incidental Zens, Deputy Assistant Secretary for Wildlife Service’s Sacramento Fish and Take and Implementation of the Plan, International Operations (OIO) of the and the Implementing Agreement (IA). Wildlife Office Website at http:// USFCS. This mission is designed to As of July 2, 2010, we have received www.fws.gov/sacramento/. advance President Obama’s economic comments from four organizations and Alternatively, the documents are growth initiatives and Secretary Locke’s individuals requesting that the comment available for public review during goal of simplifying access to the period be extended by 45 days. In regular business hours from 9 a.m. to 5 Department of Commerce’s diverse suite response to these requests, we are p.m. at the National Marine Fisheries of resources–all for the purpose of extending the comment period for an Service’s Santa Rosa Office and the U.S. employment generation. This initiative additional 45 days. Fish and Wildlife Service’s Sacramento will support both bureaus’ job creation DATES: We must receive any written Fish and Wildlife Office (see goals by increasing exports and comments on the DEIS, Plan, and IA by ADDRESSES). Individuals wishing copies attracting foreign direct investment August 30, 2010, at 5 p.m. Pacific Time. of the DEIS, Plan, or IA should contact (FDI), placing a particular emphasis on ADDRESSES: Comments concerning the either of the Services by telephone (see the clean technology sector. DEIS, Plan, and IA can be sent by U.S. FOR FURTHER INFORMATION CONTACT) or This mission is especially significant as it includes, for the first time ever, Mail or facsimile to: by letter (see ADDRESSES). 1. Gary Stern, San Francisco Bay both U.S. companies and delegates from Region Supervisor, National Marine Additionally, hardcopies of the DEIS, U.S. communities. Please see the section Fisheries Service, 777 Sonoma Avenue, Plan, and IA are available for viewing, titled ‘‘Participation Requirements’’ Room 325, Santa Rosa, CA 95404; or for partial or complete duplication, at below for more information on facsimile (707) 578–3435; or the following locations: community delegates and selection 2. Eric Tattersall, Chief, Conservation 1. Social Sciences Resource Center, criteria that will be used to evaluate Planning and Recovery Division, Fish Green Library, Room 121, Stanford, CA applicants. While traditional trade and Wildlife Service, Sacramento Fish 94305. missions are limited to business-to- and Wildlife Office, 2800 Cottage Way, business connections, the addition of Room W–2605, Sacramento, CA 95825; 2. Palo Alto Main Library, 1213 communities in this model provides facsimile (916) 414–6713. Newell Road, Palo Alto, CA 94303. much broader access to U.S. companies Comments concerning the DEIS, Plan, by leveraging regional business and IA can also be sent by email to: networks. Community delegates will

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focus on clean technologies as a key Renewable Energy market opportunities in a number of component of their regional strategies France possesses vast renewable areas. Best prospects include wastewater for increasing exports and attracting energy resources, including wind, sludge treatment; installation and FDI. Therefore, this new model allows geothermal energy, and biomass, all of maintenance of stand-alone sewage the mission to advance a variety of which have shown substantial growth in treatment tanks; remote monitoring Presidential and Department of recent years. France is also currently technology; and membranes and water Commerce priorities simultaneously, ranked 2nd highest in the EU in terms filters. Non point source pollution including job creation, export of biofuel production and use. A management and water conservation development, attracting FDI, building continued increase in the level of including leak detection and the green economy, and advancing production helps consolidate the reclamation are becoming of major nation’s position. Both tax reductions regional innovation clusters. importance. and capital grants are in place to Commercial Setting promote biofuels. In addition, major Pollutec France potential exists in the area of solid Pollutec is an International Exhibition biomass. Biomass accounts for two of Environmental Equipment, France is an economic and political thirds of all the renewables used in Technology and Services for industry leader in the Eurozone due to its size, France today and hydro power for and local authorities. Pollutec is a key location, large economy, membership in another third. exhibition for U.S. companies and European organizations, and energetic As France’s government sets new community delegates to attend as it is diplomacy. With a GDP of $2.865 goals in terms of green energy, U.S. the world’s leading event for the trillion,1 France is the world’s fifth- communities have a window of environmental market with 8,422 largest economy. France’s economy also opportunity to promote their regional professionals from 110 countries all in ranks the second highest in trade businesses to play a pivotal role in search of comprehensive solutions to volume for Western Europe (after providing the means to increase the environmental and economic Germany). renewable energy capacity. Wind and challenges today. This creates the solar power especially are at the core of perfect atmosphere to meet industry Both trade and investment between a new push by the French government professionals and key players in order to the U.S. and France are strong and are to increase the renewable share of total create expansion opportunities and to key factors for companies and energy consumption from 6.7 percent in publicize products and regions. In its communities to participate in the 2004 to 20 percent by 2020. Also, 24th edition, Pollutec will also bring mission. On average, over 1 billion installed capacity for photovoltaic (PV) together 2,400 exhibitors offering dollars in commercial transactions take power is to increase from 32.7 MW in products across a range of sectors and place between France and the U.S. every 2006—about 100 times less than 75,000 trade visitors from industry, day, with the U.S. being France’s sixth Germany—to 3,000 MW by 2020. In local authorities, construction and the largest supplier and its sixth largest addition, 5 million solar thermal units service sector. This year especially the customer. France ranks as the United are to be installed in buildings by 2020, exhibition has seen a shift in its visitors’ States’ eighth largest trading partner for 80 percent of these in homes. All these prime focus with 39.7% of the visitors total trade. Currently, there are factors considered create a large market interested in energy, more specifically approximately 2,300 French of potential buyers for U.S. businesses, renewables, energy saving and subsidiaries in the U.S. that provide and therefore provide strong job efficiency, combating greenhouse gases, more than 520,000 jobs and that creation potential for U.S. communities and urban mobility. Companies and generate an estimated $235 billion in that are working to develop regional communities will be amongst the first to turnover annually. As for investment, innovation clusters focused on the capture this shift in focus and turn it the U.S. is the top destination for cleantech sector. into tangible exports sales and FDI. French investments worldwide. In 2008, For four days, U.S. community Water Resources Equipment and delegates and companies will network French direct investment inflow to the Services U.S. was approximately $14 billion. with potential trading and investment Foreign firms have invested in the U.S. One of the ‘‘best prospects’’ for U.S. partners in the cleantech sector through through acquisitions and with business in France is water resources customized one-on-one meetings with equipment and services. The total foreign companies arranged through a greenfield investments. Between 2004 French market for water treatment DOC/Pollutec partnership. Meanwhile, and 2008, France’s FDI stock in the equipment and related services is they will also learn about the latest United States increased from $138 estimated to be worth $23 billion. A cleantech trends and technologies billion to over $163 billion. This makes stable economy and financial through the Pollutec exhibition, which this mission an ideal platform for institutions, stronger European Union will feature all the techniques for companies and communities to position (E.U.) regulations, and greater public prevention and treatment of various themselves for investment and export awareness and the increasing costs sources of pollution and more generally successes. Further, French FDI to the associated with polluting have played a the preservation and implementation of U.S. supports almost 500,000 jobs. major role in an expanding market for environmental preservation and Concurrently, the U.S. is the largest water treatment equipment and services. sustainable development. Pollutec offers foreign direct investor in France, In addition, greater interest in an assortment of exhibition sectors employing over 650,000 French citizens complying with environmental including: Treatment of pollutant gases; with aggregate investment estimated at regulations by national and local analysis, measurement and monitoring; $75 billion in 2008. This makes the U.S. government officials has stimulated this energy and greenhouse gases; renewable more attractive to French investors and market. Despite the current financial energy; CO2 collection and storage; eco- foreign direct investment. and economic challenges, the water management; biofuel; low consumption sector is still expected to grow at a vehicles; electric vehicles; industrial, 1 All currencies given are in U.S. dollars. stable rate and provide continued natural, and sanitary risks; services and

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sustainable development; waste $18.6 billion. Belgian FDI in the U.S. waste targets. Also, through their treatment and services; and recycling. supports 141,000 jobs. advanced separate trash collection An outstanding conference program will programs, the residual waste items in Invest In America also run parallel including 320 Flanders (Flemish speaking part of seminars, presentations, and technical Belgium has also hosted two Belgium) have been reduced to about conferences by experts and associations. Department of Commerce Invest In 160 kg per capita, per year whereas the America (IIA) events, and those events European average for waste items is Belgium resulted in greater success than other about 320 kg per capita. Best prospects Densely populated Belgium is located IIA events in any other country to date. for U.S. firms in this sector include but at the heart of Europe’s most The first IIA event from just a year and are not limited to plastic sorting industrialized region. Belgium per a half ago has produced five investment technology, waste separation, selective capita GDP ranks among the world’s successes in California, Indiana, collection systems, and waste-to-energy highest with a total of $390.2 billion in Virginia and Florida. However there are technologies. 2008. The U.S. ranks as Belgium’s 5th other successes that have not yet been It is also important to note that a trade principal trading partner; with Belgium recorded making it an even larger and investment mission to Belgium does ranked 18th for largest U.S. trading success. The most recent IIA event held not preclude exposure and partnership partner. The Belgian market is small a few months ago has already produced opportunities with other European enough that a huge European-wide three investments. The Council of countries. On the contrary, groups from commitment to a new product is not American States in Europe (C.A.S.E.), other countries operate a large part of necessary, yet diverse and competitive which helps European companies locate the Belgian waste market, making enough that it offers a representative production sites or sales and Belgium an optimal choice for U.S. sample of potential buyers and distribution operations for their companies and communities to pursue competitors. Belgium’s trade advantages products and services in the U.S., has trade and FDI opportunities. stated emphatically that Brussels holds are derived from its central geographic Energy location and its highly skilled, the most qualified participants and The energy sector has long been one multilingual, and productive workforce. generates the most investment results of Belgium’s leading industries. Current With a total of 10.5 million people, the compared with other investment shifts such as de-regulation and population density is the second highest roadshows. The past events have liberalization, the discussion on the in Europe, after the Netherlands, and is attracted participants from the phasing or non-phasing out of nuclear heavily reliant on international trade for Netherlands, Germany, France and the energy and the push for renewable its prosperity. Belgium’s central location UK, and we expect similarly broad energy creates a great export in the wealthy region of Europe makes participation in this portion of the opportunity to U.S. companies to enter the country an ideal gateway for exports mission as well. the market. Nuclear energy still to Europe. Within a radius of 300 miles, Water & Wastewater accounts for more than 50% of 140 million EU consumers can be In 2009, 40% of U.S. environmental Belgium’s electricity production. reached (equivalent to almost 50% of exports to Belgium are related to water However, under the efforts from the the U.S. population) representing 60% and wastewater. This equaled over USD former ‘‘green’’ government to phase out of Europe’s purchasing power. The 200 million in products and services. nuclear energy between 2015 and 2025, government has focused its national Trends and best prospects for this sector there is major room for improvement on reform program on key priorities are infrastructure projects to build energy efficiency. A commission of intended to achieve long-term wastewater treatment plants or more experts concluded that phasing out sustainable growth prospects, such as specifically small—scale ‘‘start to finish’’ nuclear energy should be compensated protecting the environment. wastewater treatment projects or water by the construction of gas plants, the Belgium is one of the top 20 markets filtration systems for drinking water. exploitation of wind energy, biomass for U.S. environmental exports. U.S. and cogeneration and a reduction in Solid Waste Disposal and Treatment green exports to Belgium grew by 50% electricity consumption, or higher since 2002 and in 2009, U.S. green As Belgium faces numerous pollution efficiency of electricity production. 1 exports reached ⁄2; billion dollars (40% problems, they realize that proper Each region actively promotes these water, 30% air pollution control, 24% management of solid waste is a central new technologies through various solid waste, and 6% other). These pillar of forward-looking, sustainable financial incentives. The level of exports include products such as environmental policies. As a result, it is subsidies varies according to the type of chemicals and supplies, and services attempting to figure out how to enterprise and the introduction of new such as consulting and engineering. minimize the environmental impacts energy efficiency policies, particularly Some of Belgian’s leading commercial from waste treatment, while optimizing environmental. This drive towards clean sectors for U.S. export and investment energy and material recovery and energy provides a prime opportunity for are solid waste disposal, water and minimizing the costs. U.S. cleantech regional innovation wastewater, air, green building, and In 2009 24% of U.S. environmental clusters to boost exports to Belgium. renewable energy. exports to Belgium were related to solid The total stock of Belgian FDI in the waste, recycling and soil remediation. Mission Goals U.S. was $18.6 billion in 2008, making This equaled USD 110 million in • Support the President’s initiative to it the 15th largest direct investor in the products and services. Compared to double exports during the next five U.S. The flow of FDI from Belgium to other EU countries, Belgium is at the years to support 2 million American the U.S. was negative $5.8 billion in forefront of solid waste disposal and jobs by connecting U.S. communities 2008, a substantial decrease from the treatment. For example, Belgium has a and companies with potential European $13.9 million inflow to the U.S. in 2007. voluntary waste policy program. This trading partners. However, overall between 2004 and means that municipalities, under certain • Promote the U.S. green economy by 2008, Belgian FDI stock in the United agreements, can receive subsidies by connecting representatives of U.S. States increased from $12.6 billion to achieving pre-specified residential solid regional innovation clusters focused on

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cleantech with potential foreign increased exports and FDI, and, in turn, discussions with international firms at investors and trading partners. job creation. Pollutec in Lyon, and in networking • Progress in addressing cleantech forums in Brussels. ITA will be able to Mission Scenario market access barriers to trade and expand its trade mission model from a investment between participating Participants will gain from operating ‘‘U.S. company to foreign company’’ to nations. ‘‘U.S. community to foreign company’’ • on a two track mission: Export Increase awareness of President format. As each U.S. community Obama’s priorities in promoting exports. promotion and foreign direct investment • attraction. Companies will promote represents many companies, this format Welcome foreign direct investment offers the potential for exponential in the cleantech sector. their products and services while • Help companies gain valuable communities will promote the growth in U.S. exports and of FDI in the international business experience in the competitiveness of their economic U.S. rapidly growing renewable energy and regions as promising investment Timetable cleantech market. opportunities for foreign companies. • Help U.S. communities strengthen U.S. companies and communities will • The proposed schedule allows for their engagement in the worldwide benefit through open opportunities via four days in Lyon and two days in marketplace, which will lead to matchmaking support to facilitate Brussels.

Day of week Date Activity

Monday ...... Nov 29, Lyon ...... Clean technology site visit organized by ERAI (Rhone–Alps Economic Development Agency) TBC. Delegation Greeting Briefing by ERAI and U.S. Commercial Service. Social/networking mixer with ERAI TBC. Tuesday ...... Nov 30, Lyon ...... Exhibition and Conference Opening ceremonies. U.S. Technology Country of Honor Networking Luncheon TBC Con- ference presentations. Evening Lyon City Hall Reception—500 guests (U.S. delegation as the guest of honor) TBC. Wednesday ...... Dec 1, Lyon ...... Conference Presentations. One-on-One Matchmaking. U.S. Pavilion Exhibition activities. Thursday ...... Dec 2, Lyon/Brussels ...... Conference Presentations. One-on-One Matchmaking. U.S. Pavilion Exhibition activities. U.S. Pavilion afternoon onsite reception. Depart for Brussels via train or air. U.S. Ambassador’s Reception (TBC). Friday ...... Dec 3, Brussels ...... Company Delegates Visit to Nike Logistics Center/Business Roundtable. Community Delegates hold Invest in America program at U.S. Commer- cial Service Offices. Combined business networking luncheon. NATO Visit to discuss cleantech needs for new NATO/HQ. Saturday ...... Dec 4, Brussels ...... Depart.

Package Includes: delegates will be considered for the • Additional representatives • Matchmaking and networking. mission. (company or community delegate): $400 • Access to VIP lounge. I. Fees and Expenses: After a per participant • Networking receptions and company or community delegate has Expenses for travel, including airfare, luncheon (TBC). been selected to participate on the lodging, in-country transportation mission, a participation fee paid to the (except for airport transfers and bus • U.S. Pavilion exposure including U.S. Department of Commerce is transportation to/from group meetings), promotion through shared exhibit space required. meals, and incidentals, will be the (literature display) and meeting point. responsibility of each mission • Access to Pollutec trade exhibition, The participation fees are: • participant. conference, and presentations. Companies: Companies and community delegates • Visit to cleantech cluster in Rhone- Æ Large company (for one representative): $3588 can also choose to separately purchase Alps region (TBC). their own exhibit in the U.S. Pavilion. Æ Small or medium-sized (less than Participation Requirements Hotels are at a premium and sell out 500 employees) company (for one quickly; an early commitment to representative): $3395 All parties interested in participating Pollutec is highly recommended. in the U.S. Cleantech Trade & • Community delegate (one person): II. Conditions for Participation: Investment Mission must complete and $2195 2 submit an application package for All Applicants, whether a company or a community delegate, must: consideration by the Department of 2 The Department continues to review the fee for Commerce. All applicants will be community delegate participation and options for • Submit a completed and signed evaluated on their ability to meet certain direct financing of the economic development mission application, and, if selected, a component mission expenses, which could lower conditions and best satisfy the selection the cost for community delegates. Please see the signed Participation Agreement, and a criteria as outlined below. A maximum trade mission website at [insert web address] for the completed Market Interest of 20 companies and 20 community most current information. Questionnaire.

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• Certify that the products and such communities on a national trade shows. The ITA and EDA will services to be promoted through the basis. Authorized representative explore and welcome outreach mission are either produced in the documentation is not required for assistance from other interested United States or marketed under the such organizations. organizations, including other U.S. name of a U.S. firm and have at least 51 • Community Delegates must Government agencies. Recruitment for percent U.S. content of the value of the demonstrate at the time of the mission will begin immediately and finished product or service. application how their community’s close on August 15, 2010 for community • If the Department of Commerce economic development strategy delegates and October 15, 2010 for receives an incomplete application, the promotes increased exports and companies. The staggered timeline Department may reject the application, foreign direct investment in general, allows for logistical flexibility for request additional information, or take and the green economy in community delegates. Applications the lack of information into account particular. received after that time will be when evaluating the applications. • Additional representatives considered only if space and scheduling Companies must include adequate accompanying community constraints permit. information on: delegates must adhere to the Information can also be obtained by • The company’s products and/or selection criteria applicable to contacting the mission contacts listed services, primary market objectives, and community delegates. below. goals for participation, and previous III. Selection Criteria for Participation: Contacts company activities or initiatives The following factors will be used to participated in to advance regional select participants: Companies, please contact: economic development. • Companies: U.S. Commercial Service, Name: Teresa Community Delegates may be a: Æ Suitability of the company’s Yung, E-mail: [email protected], • State or local government official, products or services for the Phone: (202) 482–5496; • University official, renewable energy and cleantech Community delegates, please contact: • Non-profit representative, or market, Economic Development Administration, • Representative of an EDA- Æ Participation in coordinated Name: Bryan Borlik, E-mail: recognized regional entity. economic development strategies [email protected]. In addition, each Community Delegate for their community, Teresa Yung, must be Æ Potential for business in France and • Global Trade Programs, Commercial Service The authorized representative of the Belgium, including the likelihood Trade Missions Program. of exports resulting from the governmental entity or entities [FR Doc. 2010–17203 Filed 7–14–10; 8:45 am] responsible for implementing a mission, BILLING CODE P regional, State, or local economic Æ Consistency of the applicant’s goals development strategy. At the time and objectives with the stated scope of application, a community of the mission. DEPARTMENT OF DEFENSE delegate must demonstrate that they • Community delegates: Æ are the authorized representative by Consistency of the community’s Defense Acquisition Regulations providing documentation as economic strategic plan with the System follows: stated scope of this mission, Æ For delegates representing the Æ Broad U.S. geographic diversity, [OMB Control Number 0704–0252] entity responsible for implementing Æ Industry cluster representation Information Collection Requirement; a regional plan and EDA-recognized related to advancing the green Defense Federal Acquisition regional entities, the delegate must economy, and Regulation Supplement; Part 251, provide either: Æ Community economic distress Contractor Use of Government Supply Æ A letter from the director or levels. Sources governing body of the regional Referrals from political organizations entity, or and any documents containing AGENCY: Defense Acquisition Æ A letter or resolution from each references to partisan political activities Regulations System, Department of governmental entity that makes up (including political contributions) will Defense (DoD). a region (for example, a resolution be removed from an applicant’s ACTION: Notice and request for passed by the county commission of submission and not considered during comments regarding a proposed each county that makes up a the selection process. extension of an approved information region), collection requirement. Æ For delegates representing a State, Timeframe for Recruitment and the delegate must provide a letter Applications SUMMARY: In compliance with Section from the applicable Governor or the Mission recruitment will be 3506(c)(2)(A) of the Paperwork Governor’s designated conducted in an open and public Reduction Act of 1995 (44 U.S.C. representative, and manner, including publication in the Chapter 35), DoD announces the Æ For delegates representing a local Federal Register, posting on the proposed extension of a public government, the delegate must Commerce Department trade mission information collection requirement and provide a resolution passed by or calendar (http://www.ita.doc.gov/ seeks public comment on the provisions letter from the local government (for doctm/tmcal.html) and other Internet thereof. DoD invites comments on: (a) example, a letter from the city’s Web sites, press releases to general and Whether the proposed collection of mayor or a resolution passed by the trade media, e-mail, direct mail, information is necessary for the proper county commission, as applicable). broadcast fax, notices by industry trade performance of the functions of DoD, • The Department of Commerce may associations and other multiplier including whether the information will consider applications from non- groups, and publicity at industry have practical utility; (b) the accuracy of profit organizations that represent meetings, symposia, conferences, and the estimate of the burden of the

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proposed information collection; (c) • Submit requests for use of training and research, development, ways to enhance the quality, utility, and Government vehicles under the testing, and evaluation (RDT&E) clarity of the information to be Interagency Fleet Management System activities (hereinafter referred to as collected; and (d) ways to minimize the (IFMS) and obtain related services. The ‘‘training and testing’’ activities) burden of the information collection on information submitted enables DoD to conducted within the Hawaii-Southern respondents, including the use of evaluate whether the contractor is California Training and Testing (HSTT) automated collection techniques or authorized such use. study area. The HSTT study area other forms of information technology. Affected Public: Businesses or other combines the at-sea portions of the The Office of Management and Budget for-profit and not-for-profit institutions. Hawaii Range Complex, the Southern (OMB) has approved this information Annual Burden Hours: 5,250. California Range Complex (including collection requirement for use through Number of Respondents: 3,500. the San Diego Bay); the Silver Strand November 30, 2010. DoD proposes that Responses per Respondent: Training Complex; areas where vessels OMB extend its approval for these approximately 3. transit between the Hawaii Range collections to expire three years after the Annual Responses: 10,500. Complex and the Southern California approval date. Average Burden per Response: Range Complex; and select Navy DATES: DoD will consider all comments approximately 30 minutes. pierside locations. This EIS and OEIS is received by September 13, 2010. Frequency: On occasion. being prepared to renew and combine ADDRESSES: You may submit comments, Summary of Information Collection current regulatory permits and identified by OMB Control Number authorizations; address current training The clause at DFARS 252.251–7000, and testing not covered under existing 0704–0252, using any of the following Ordering from Government Supply methods: permits and authorizations; and to Æ Sources, requires a contractor to provide obtain those permits and authorizations Federal eRulemaking Portal: http:// a copy of an authorization when placing www.regulations.gov. Follow the necessary to support force structure an order under a Federal Supply changes and emerging and future instructions for submitting comments. Schedule, a Personal Property Æ E-mail: [email protected]. Include training and testing requirements. Rehabilitation Price Schedule, or an OMB Control Number 0704–0252 in the The DON will invite the National Enterprise Software Agreement. Marine Fisheries Service to be a subject line of the message. The clause at DFARS 252.251–7001, Æ Fax: (703) 602–0350. cooperating agency in preparation of Use of Interagency Fleet Management Æ Mail: Defense Acquisition this EIS and OEIS. System Vehicles and Related Services, Regulations System, Attn: Ms. Meredith DATES AND ADDRESSES: Six public requires a contractor to submit a request Murphy, OUSD(AT&L)DPAP(DARS), scoping meetings will be held between for use of Government vehicles when 3060 Defense Pentagon, Room 3B855, 4 p.m. and 8 p.m., unless otherwise the contractor is authorized to use such Washington, DC 20301–3060. stated, on the following dates and at the vehicles in the performance of Comments received generally will be following locations: Government contracts. posted without change to http:// 1. Wednesday, August 4, 2010, 3:30 www.regulations.gov, including any Ynette R. Shelkin, p.m. to 7:30 p.m., Point Loma/Hervey personal information provided. Editor, Defense Acquisition Regulations Branch Library, Community Room, 3701 FOR FURTHER INFORMATION CONTACT: Ms. System. Voltaire Street, San Diego, CA. Meredith Murphy, 703–602–1302. The [FR Doc. 2010–17256 Filed 7–14–10; 8:45 am] 2. Thursday, August 5, 2010, information collection requirements BILLING CODE 5001–08–P Lakewood High School, Room 922/924, addressed in this notice are available 4400 Briercrest Avenue, Lakewood, CA. electronically via the Internet at: http:// 3. Tuesday, August 24, 2010, Kauai www.acq.osd.mil/dp/dars/dfars.html. DEPARTMENT OF DEFENSE Community College Cafeteria, 3–1901 Paper copies are available from Ms. Kaumuali’i Highway, Lihue, HI. Meredith Murphy, Department of the Navy 4. Wednesday, August 25, 2010, OUSD(AT&L)DPAP(DARS), 3060 Disabled American Veterans Hall, Defense Pentagon, Room 3B855, Notice of Intent To Prepare an Weinberg Hall, 2685 North Nimitz Washington, DC 20301–3060. Environmental Impact Statement and Highway, Honolulu, HI. Overseas Environmental Impact 5. Thursday, August 26, 2010, Hilo SUPPLEMENTARY INFORMATION: Statement for Navy Hawaii-Southern Title, Associated Form, and OMB High School Cafeteria, 556 Waianuenue California Training and Testing and To Avenue, Hilo, HI. Number: Defense Federal Acquisition Announce Public Scoping Meetings Regulation Supplement (DFARS) Part 6. Friday, August 27, 2010, Maui 251, Contractor Use of Government AGENCY: Department of the Navy, DoD. Waena Intermediate School Cafeteria, 795 Onehee Avenue, Kahului, HI. Supply Sources, and the associated ACTION: Notice. clauses at DFARS 252.251–7000, Each of the six scoping meetings will Ordering from Government Supply SUMMARY: Pursuant to section 102 of the consist of an informal, open house Sources; and 252.251–7001, Use of National Environmental Policy Act session with informational stations Interagency Fleet Management System (NEPA) of 1969, as implemented by the staffed by DON representatives. Meeting (IFMS) Vehicles and Related Services; Council on Environmental Quality details will be announced in local OMB Control Number 0704–0252. Regulations (40 Code of Federal newspapers. Additional information Needs and Uses: This information Regulations [CFR] Parts 1500–1508), concerning meeting times is available collection permits contractors to— and Executive Order 12114, the on the EIS and OEIS Web page located • Place orders under Federal Supply Department of the Navy (DON) at: http://www.HawaiiSOCALEIS.com. Schedule contracts and requirements announces its intent to prepare an FOR FURTHER INFORMATION CONTACT: Kent contracts or for Government stock. The Environmental Impact Statement (EIS) Randall, Naval Facilities Engineering information enables DoD to evaluate and Overseas EIS (OEIS) to evaluate the Command, Southwest. Attention: HSTT whether a contractor is authorized to potential environmental effects EIS/OEIS, 1220 Pacific Highway, place such orders. associated with military readiness Building 1, Floor 5, San Diego, CA

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92132, or Meghan Byrne, Naval of RDT&E proposed for the HSTT study Dated: July 9, 2010. Facilities Engineering Command, area is necessary to ensure that Sailors D.J. Werner Pacific. Attention: HSTT EIS/OEIS, 258 and Marines deployed overseas have the Lieutenant Commander, Office of the Judge Makalapa Dr, Ste 100, Building 258, latest proven military equipment. Advocate General, U.S. Navy, Federal Floor 3, Room 258C210, Pearl Harbor, Accordingly, the alternatives to be Register Liaison Officer. HI 96860–3134. addressed in the HSTT EIS and OEIS [FR Doc. 2010–17234 Filed 7–14–10; 8:45 am] SUPPLEMENTARY INFORMATION: The are: BILLING CODE 3810–FF–P DON’s proposed action is to conduct 1. No Action—The No Action training and testing activities that Alternative continues baseline training include the use of active sonar and and testing activities and force structure DEPARTMENT OF DEFENSE explosives within the at-sea portions of requirements as defined by existing Department of the Navy existing DON training range complexes DON environmental planning documents. This documentation around the Hawaiian Islands and off the Notice of Intent To Prepare an includes the Records of Decision for the coast of Southern California (known as Environmental Impact Statement and Hawaii and Southern California range the HSTT study area). While the Overseas Environmental Impact complexes and the Preferred Alternative majority of these training and testing Statement for Navy Atlantic Fleet for the Silver Strand Training Complex activities take place in operating and Training and Testing and To Announce Draft EIS and OEIS. warning areas and/or on training and Public Scoping Meetings testing ranges, some training activities, 2. Alternative 1—This alternative such as sonar maintenance and gunnery consists of the No Action alternative, AGENCY: Department of the Navy, DoD. exercises, are conducted concurrent plus expansion of the overall study area ACTION: Notice. with normal transits and may occur boundaries, and updates and/or outside of DON operating and warning adjustments to locations and tempo of SUMMARY: Pursuant to section 102 of the areas. training and testing activities. This National Environmental Policy Act The HSTT study area combines the at- alternative also includes changes to (NEPA) of 1969, as implemented by the sea portions of the following range training and testing requirements Council on Environmental Quality complexes: Hawaii Range Complex, necessary to accommodate force Regulations (40 Code of Federal Southern California Range Complex, structure changes, and the development Regulations [CFR] Parts 1500–1508), and Silver Strand Training Complex. and introduction of new vessels, and Executive Order 12114, the The existing western boundary of the aircraft, and weapons systems. Department of the Navy (DON) Hawaii Range Complex is being 3. Alternative 2—Alternative 2 announces its intent to prepare an expanded 60 miles to the west to the consists of Alternative 1 with an Environmental Impact Statement (EIS) International Dateline. The HSTT study increased tempo of training and testing and Overseas EIS (OEIS) to evaluate the area also includes the transit route activities. This alternative also allows potential environmental effects between Hawaii and Southern for additional range enhancements and associated with military readiness California as well as DON and infrastructure requirements. training and research, development, commercial piers at Pearl Harbor, HI Resource areas that will be addressed testing, and evaluation (RDT&E) and San Diego, CA where sonar may be because of the potential effects from the activities (hereinafter referred to as tested. proposed action include, but are not ‘‘training and testing’’ activities) The proposed action is to conduct limited to: Ocean and biological conducted within the Atlantic Fleet military training and testing activities in resources (including marine mammals Training and Testing (AFTT) study area. the HSTT study area. The purpose of the and threatened and endangered The AFTT study area includes the proposed action is to achieve and species); air quality; airborne western North Atlantic Ocean along the maintain Fleet Readiness to meet the soundscape; cultural resources; east coast of North America (including requirements of Title 10 of the U.S. transportation; regional economy; the area where the Undersea Warfare Code, which requires DON to ‘‘maintain, recreation; and public health and safety. Training Range will be used), the train, and equip combat-ready naval The scoping process will be used to Chesapeake Bay, and the Gulf of forces capable of winning wars, identify community concerns and local Mexico. Also included are select Navy deterring aggression, and maintaining issues to be addressed in the EIS and pierside locations and channels. The freedom of the seas.’’ The proposed OEIS. Federal agencies, state agencies, AFTT study area does not include the action would also allow DON to attain local agencies, Native American Indian Arctic. This EIS and OEIS is being compliance with applicable Tribes and Nations, the public, and prepared to renew and combine current environmental authorizations, interested persons are encouraged to regulatory permits and authorizations; consultations, and other associated provide comments to the DON to address current training and testing not environmental requirements, including identify specific issues or topics of covered under existing permits and those associated with new platforms environmental concern that the authorizations; and to obtain those and weapons systems, for example, the commenter believes the DON should permits and authorizations necessary to Low Frequency Anti-Submarine Warfare consider. All comments provided orally support force structure changes and capability associated with the Littoral or in writing at the scoping meetings, emerging and future training and testing Combat Ship. will receive the same consideration requirements. The alternatives that will be analyzed during EIS and OEIS preparation. The DON will invite the National in the HSTT EIS and OEIS meet the Written comments must be postmarked Marine Fisheries Service to be a purpose and need of the proposed no later than September 14, 2010, and cooperating agency in preparation of action by providing the level of training should be mailed to: Naval Facilities this EIS and OEIS. that meets the requirements of Title 10, Engineering Command, Southwest, 2730 DATES AND ADDRESSES: Five public thereby ensuring that Sailors and McKean Street, Building 291, San Diego, scoping meetings will be held between Marines are properly prepared for CA 92136–5198, Attention: Mr. Kent 4 p.m. and 8 p.m. on the following dates operational success. Similarly, the level Randall—HSTT EIS/OEIS. and at the following locations:

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1. Monday, August 23, 2010, Hynes Newport, Newport, RI; Naval Surface Alternative for the GOMEX Draft EIS Convention Center, 900 Boylston Street, Warfare Center (NSWC) Panama City and OEIS. Boston, MA. Division, FL; and NSWC Carderock 2. Alternative 1—This alternative 2. Wednesday, August 25, 2010, Division South Florida Test Facility, FL. consists of the No Action alternative, Virginia Beach Convention Center, 1000 The piers and channels in the AFTT plus expansion of the overall study area 19th Street, Virginia Beach, VA. study area are located at the following boundaries, and updates and/or 3. Thursday, August 26, 2010, Crystal Navy ports, Naval Shipyards, and Navy adjustments to locations and tempo of Coast Civic Center, 3505 Arendell contractor shipyards: Bath Iron Works, training and testing activities. This Street, Morehead City, NC. ME; Portsmouth Naval Shipyard, ME; alternative also includes changes to 4. Tuesday, August 31, 2010, Prime F. Electric Boat and Naval Base Groton, training and testing requirements Osborn III Convention Center, 1000 CT; Northrop Grumman Shipbuilding— necessary to accommodate force Water Street, Jacksonville, FL. Newport News, VA; Norfolk Naval Base, structure changes, and the development 5. Wednesday, September 1, 2010, VA; Norfolk Naval Shipyard, VA; Naval and introduction of new vessels, Gulf Coast Community College, 5230 Amphibious Base Little Creek, VA; aircraft, and weapons systems. West Highway 98, Panama City, FL. Naval Base Kings Bay, GA; Naval Base 3. Alternative 2—Alternative 2 Each of the five scoping meetings will Mayport, FL; Port Canaveral, FL; consists of Alternative 1 with an consist of an informal, open house Northrop Grumman Shipbuilding— increased tempo of training and testing session with informational stations Avondale, LA; Northrop Grumman activities. This alternative also allows staffed by DON representatives. Meeting Shipbuilding—Ingalls, MS; and, Halter for additional range enhancements and details will be announced in local Moss Point Shipyard, MS. infrastructure requirements. Resource areas that will be addressed newspapers. Additional information The proposed action is to conduct due to the potential effects from the concerning meeting times is available military training and testing activities in proposed action include, but are not on the EIS and OEIS Web page located the AFTT study area. The purpose of the limited to: Ocean and biological at: http://www.AFTTEIS.com. proposed action is to achieve and resources (including marine mammals FOR FURTHER INFORMATION CONTACT: maintain Fleet Readiness to meet the and threatened and endangered Naval Facilities Engineering Command, requirements of Title 10 of the U.S. species); air quality; airborne Code EV22LL (AFTT EIS/OEIS Project Code, which requires the DON to soundscape; cultural resources; Manager), 6506 Hampton Boulevard, ‘‘ maintain, train, and equip combat- transportation; regional economy; Norfolk, VA 23508–1278, telephone ready naval forces capable of winning recreation; and public health and safety. number 757–322–4645. wars, deterring aggression, and The scoping process will be used to SUPPLEMENTARY INFORMATION: The maintaining freedom of the seas.’’ The identify community concerns and local DON’s proposed action is to conduct proposed action would also allow the issues to be addressed in the EIS and training and testing activities that DON to attain compliance with OEIS. Federal agencies, state agencies, include the use of active sonar and applicable environmental local agencies, Native American Indian explosives within the at-sea portions of authorizations, consultations, and other Tribes and Nations, the public, and existing range complexes and on RDT&E associated environmental requirements, interested persons are encouraged to ranges within the AFTT study area including those associated with new provide comments to the DON to (including the area where the Undersea platforms and weapons systems, for identify specific issues or topics of Warfare Training Range will be used). example, the Low Frequency Anti- environmental concern that the The boundary of the AFTT study area Submarine Warfare capability commenter believes the DON should begins seaward from the mean high associated with the Littoral Combat consider. All comments provided orally water line and moves east to the 45 Ship. or in writing at the scoping meetings degree west longitude line, generally The alternatives that will be analyzed will receive the same consideration following the 2nd Fleet area of in the AFTT EIS and OEIS meet the during EIS and OEIS preparation. responsibility (except for the Arctic). purpose and need of the proposed Written comments must be postmarked The AFTT study area covers action by providing the level of training no later than September 14, 2010, and approximately 2.6 million square that meets the requirements of Title 10, should be mailed to: Naval Facilities nautical miles of ocean area, which thereby ensuring that Sailors and Engineering Command, Atlantic, Code: includes Navy operating areas (sea Marines are properly prepared for EV22LL (AFTT EIS/OEIS Project space) and warning areas (airspace). operational success. Similarly, the level Manager), 6506 Hampton Boulevard, While the majority of Navy training and of RDT&E proposed for the AFTT study Norfolk, VA, 23508–1278. area is necessary to ensure that Sailors many testing activities take place within Dated: July 9, 2010. operating and warning areas and/or on and Marines deployed overseas have the D.J. Werner, RDT&E ranges, some activities, such as latest proven military equipment. Accordingly, the alternatives to be Lieutenant Commander, Office of the Judge sonar maintenance and gunnery Advocate General, U.S. Navy, Federal exercises, are conducted concurrent addressed in the AFTT EIS and OEIS Register Liaison Officer. with normal transits and occur outside are: [FR Doc. 2010–17237 Filed 7–14–10; 8:45 am] of operating and warning areas. 1. No Action—The No Action The following DON training range Alternative continues baseline training BILLING CODE 3810–FF–P complexes fall within the AFTT study and testing activities and force structure area: Northeast Range Complex, Virginia requirements as defined by existing DEPARTMENT OF EDUCATION Capes (VACAPES) Range Complex, DON environmental planning Navy Cherry Point Range Complex, documents. This documentation Submission for OMB Review; Jacksonville Range Complex, Key West includes the Records of Decision for Comment Request Range Complex, and Gulf of Mexico Atlantic Fleet Active Sonar Training (GOMEX) Range Complex. The DON (AFAST), VACAPES, Navy Cherry AGENCY: Department of Education. RDT&E ranges in the AFTT study area Point, Jacksonville, and NSWC Panama SUMMARY: The Director, Information include: Naval Undersea Warfare Center City Division, and the Preferred Collection Clearance Division,

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Regulatory Information Management Agencies (SEAs) or Local Educational proposal: (a) Whether the proposed Services, Office of Management invites Agencies (LEAs). collection of information is necessary comments on the submission for OMB Estimated Number of Annual for the proper development of the study, review as required by the Paperwork Responses: 1,800. including whether the information shall Reduction Act of 1995 (Pub. L. 104–13). Estimated Annual Burden Hours: 373. have practical utility; (b) ways to DATES: Interested persons are invited to Abstract: The State Education Agency enhance the quality, utility, and clarity submit comments on or before August Directory (SEAD), formerly known as of the information to be collected; and 16, 2010. the Education Resource Organizations (c) ways to minimize the burden of the Directory (EROD), is an electronic ADDRESSES: Written comments should collection of information on directory of educational resource be addressed to the Office of respondents, including through organizations and services available at Information and Regulatory Affairs, additional use of information the state, regional, and national level. Attention: Education Desk Officer, technology. The goal of this directory is to help Office of Management and Budget, 725 DATES: Comments regarding this individuals and organizations identify 17th Street, NW., Room 10222, New collection must be received on or before and contact organizational sources of Executive Office Building, Washington, August 16, 2010. If you anticipate that information and assistance on a broad DC 20503, be faxed to (202) 395–5806 or you will be submitting comments, but range of education-related topics. Users e-mailed to find it difficult to do so within the of the directory include diverse groups [email protected] with a period of time allowed by this notice, such as teachers, librarians, students, cc: to [email protected]. please advise the DOE Desk Officer at researchers, and parents. SUPPLEMENTARY INFORMATION: Section Requests for copies of the information OMB of your intention to make a 3506 of the Paperwork Reduction Act of collection submission for OMB review submission as soon as possible. The 1995 (44 U.S.C. Chapter 35) requires may be accessed from the RegInfo.gov Desk Officer may be telephoned at that the Office of Management and Web site at http://www.reginfo.gov/ 202–395–4650. Budget (OMB) provide interested public/do/PRAMain or from the ADDRESSES: Written comments should Federal agencies and the public an early Department’s Web site at http:// be sent to: opportunity to comment on information edicsweb.ed.gov, by selecting the DOE Desk Officer, Office of Information collection requests. The OMB is ‘‘Browse Pending Collections’’ link and and Regulatory Affairs, Office of particularly interested in comments by clicking on link number 4261. When Management and Budget, New which: you access the information collection, Executive Office Building, Room • Evaluate whether the proposed click on ‘‘Download Attachments’’ to 10102, 735 17th Street, NW., collection of information is necessary view. Written requests for information Washington, DC 20503. for the proper performance of the should be addressed to U.S. Department And to functions of the agency, including of Education, 400 Maryland Avenue, Peter Whitman, Office of Policy and whether the information will have SW., LBJ, Washington, DC 20202–4537. International Affairs, PI–42, practical utility; • Requests may also be electronically Department of Energy, 1000 Evaluate the accuracy of the mailed to the Internet address Independence Ave., SW., Washington agency’s estimate of the burden of the [email protected] or faxed to 202– DC 20585, 202–586–1010, fax 202– proposed collection of information, 401–0920. Please specify the complete 586–5391, including the validity of the title and OMB Control Number of the [email protected]. methodology and assumptions used; • information collection when making FOR FURTHER INFORMATION CONTACT: Enhance the quality, utility, and your request. clarity of the information to be Peter Whitman, 202–586–1010, Individuals who use a [email protected]. The collected; and telecommunications device for the deaf • Minimize the burden of the collection instrument may be found at (TDD) may call the Federal Information http://www.pi.energy.gov. collection of information on those who Relay Service (FIRS) at 1–800–877– SUPPLEMENTARY INFORMATION: This are to respond, including through the 8339. use of appropriate automated, information collection request contains: electronic, mechanical, or other [FR Doc. 2010–17310 Filed 7–14–10; 8:45 am] (1) OMB No. New; (2) Information technological collection techniques or BILLING CODE 4000–01–P Collection Request Title: RFS2 Small other forms of information technology. Refinery Survey 2010; (3) Type of Dated: July 12, 2010. Request: New collection; (4) Purpose: DEPARTMENT OF ENERGY The Department of Energy is preparing Darrin A. King, a study to determine if small refiners Director, Information Collection Clearance Proposed Agency Information would suffer ‘‘disproportionate Division, Regulatory Information Collection Management Services, Office of Management. economic hardship’’ through AGENCY: Department of Energy. compliance with the Renewable Fuel Office of Communications and ACTION: Notice and request for OMB Standard (RFS). This optional survey Outreach review and comment. allows respondents to submit data that Type of Review: Revision. will provide technical support for a Title of Collection: The State SUMMARY: The Department of Energy determination of disproportionate Education Agency Directory (SEAD). (DOE) has submitted the following economic hardship. Upon such a OMB #: 1860–0508—(formerly 1800– information collection request (ICR), determination from DOE, EPA may 0012). utilizing emergency review procedures, extend the exemption from compliance Agency Form Number(s): N/A. to the Office of Management and Budget with the RFS program for at least two Frequency of Responses: On (OMB) for review and clearance in years. (5) Number of Respondents: 50, Occasion. accordance with the Paperwork this is a one-time collection; (6) Affected Public: State, Local, or Tribal Reduction Act of 1995. DOE invites Estimated Number of Total Responses: Government, State Educational public comment on the subject 50; (7) Estimated Number of Burden

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Hours: 15; (8) Estimated Reporting and DEPARTMENT OF ENERGY DOE and USDA points of contact with Recordkeeping Cost Burden: None. respect to the Biomass R&D Initiative Notice of Solicitation of Nominations Statutory Authority: Section (Initiative) and also makes written 211(o)(9)(A)(ii) of the Clean Air Act, as for Appointment as a Member of the recommendations to the Biomass R&D amended by the Energy Policy Act of 2005 Biomass Research and Development Board (Board). Those recommendations (EPACT 2005), requires that DOE conduct a Technical Advisory Committee regard whether: (A) Initiative funds are study for the Administrator of the distributed and used consistent with AGENCY: Environmental Protection Agency (EPA) Department of Energy. Initiative objectives; (B) solicitations are assessing whether the renewable fuel ACTION: Notice of solicitation of open and competitive with awards standard (RFS) would impose a members. made annually; (C) objectives and ‘‘disproportionate economic hardship’’ on evaluation criteria of the solicitations small refineries. This survey will provide SUMMARY: In accordance with the are clear; and (D) the points of contact technical information to support the study. Federal Advisory Committee Act, 5 are funding proposals selected on the U.S.C. app. 2, the U.S. Department of Issued in Washington, DC on July 8, 2010. basis of merit, as determined by an Energy is soliciting nominations for Carmen Difiglio, independent panel of qualified peers. Deputy Assistant Secretary for Policy candidates to fill vacancies on the The Committee members may serve Analysis, Office of Policy and International Biomass Research and Development up to two, three year terms and must Affairs. Technical Advisory Committee. include: (A) An individual affiliated [FR Doc. 2010–17288 Filed 7–14–10; 8:45 am] DATES: Deadline for Technical Advisory with the biofuels industry; (B) an BILLING CODE 6450–01–P Committee member nominations is July individual affiliated with the biobased 30, 2010. industrial and commercial products ADDRESSES: The nominee’s name, industry; (C) an individual affiliated DEPARTMENT OF ENERGY resume, biography, and any letters of with an institution of higher education support must be submitted via one of who has expertise in biofuels and Office of Electricity Delivery and the following methods: biobased products; (D) 2 prominent Energy Reliability; Notice of 1. E-mail to [email protected] engineers or scientists from government Reestablishment of the Electricity or [email protected]. or academia who have expertise in Advisory Committee 2. Facsimile to 202–586–1640, Attn: biofuels and biobased products; (E) an individual affiliated with a commodity Pursuant to Section 14(a)(2)(A) of the Laura McCann. trade association; (F) 2 individuals Federal Advisory Committee Act, 5 3. Overnight delivery service to the affiliated with environmental or U.S.C., App., and in accordance with Designated Federal Official for the conservation organizations; (G) an Title 41 of the Code of Federal Committee, Office of Energy Efficiency individual associated with State Regulations, Section 102–3.65, and and Renewable Energy, U.S. Department government who has expertise in following consultation with the of Energy, Mail Stop EE–2E, 1000 biofuels and biobased products; (H) an Committee Management Secretariat, Independence Avenue, SW., Washington, DC 20585. individual with expertise in energy and General Services Administration, notice environmental analysis; (I) an is hereby given that the Electricity FOR FURTHER INFORMATION CONTACT: Laura McCann, Designated Federal individual with expertise in the Advisory Committee has been economics of biofuels and biobased Official for the Committee, Office of reestablished for a two-year period. products; (J) an individual with Energy Efficiency and Renewable The Committee will provide advice to expertise in agricultural economics; (K) Energy, U.S. Department of Energy, the Office of Electricity Delivery and an individual with expertise in plant 1000 Independence Avenue, SW., Energy Reliability (DOE), on its biology and biomass feedstock Washington, DC 20585; (202) 586–7766; programs to modernize the nation’s development; (L) an individual with e-mail: [email protected] or electric power system. The Secretary of expertise in agronomy, crop science, or Christina Fagerholm at (202) 586–2933; Energy has determined that soil science; and (M) at the option of the e-mail: [email protected]. reestablishment of the Electricity points of contact, other members (REF: Advisory Committee is essential to the SUPPLEMENTARY INFORMATION: The FCEA 2008 section 9008(d)(2)(A)). All conduct of the Department’s business Biomass Research and Development Act nominees will be carefully reviewed for and is in the public interest in of 2000 (Biomass Act) [Pub. L. 106–224] their expertise, leadership, and connection with the performance of requires cooperation and coordination relevance to an expertise. Appointments duties imposed upon the Department of in biomass research and development will be made for three-year terms as Energy by law. The Committee will (R&D) between the U.S. Department of dictated by the legislation. continue to operate in accordance with Agriculture (USDA) and U.S. Nominations this year are being the provisions of the Federal Advisory Department of Energy (DOE). The accepted only for the following Committee Act (Pub. L. 92–463), the Biomass Act was repealed in June 2008 categories in order to address the General Services Administration Final by section 9001 of the Food, Committee’s needs: (C) An individual Rule on Federal Advisory Committee Conservation and Energy Act of 2008 affiliated with an institution of higher Management, and other directives and (FCEA) [Pub. L. 110–246, 122 Stat. 1651, education who has expertise in biofuels instructions issues in implementation of enacted June 18, 2008, H.R. 6124]. and biobased products; (D) 2 prominent those Acts. FCEA section 9008(d) establishes the engineers or scientists from government FOR FURTHER INFORMATION CONTACT: Ms. Biomass Research and Development or academia who have expertise in Rachel Samuel at (202) 586–3279. Technical Advisory Committee biofuels and biobased products; (H) an (Committee) and lays forth its meetings, individual with expertise in energy and Issued in Washington, DC on July 12, 2010. coordination, duties, terms and environmental analysis; and (M) at the Carol A. Matthews, membership types. The Committee must option of the points of contact, other Committee Management Officer. meet quarterly and should not duplicate members. [FR Doc. 2010–17287 Filed 7–14–10; 8:45 am] the efforts of other Federal advisory Nominations are solicited from BILLING CODE 6450–01–P committees. The Committee advises the organizations, associations, societies,

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councils, federations, groups, waiver (hereafter, ‘‘petition’’) from and one copy of the document with the universities and companies that specified portions of the U.S. information believed to be confidential represent a wide variety of biomass Department of Energy (DOE) test deleted. DOE will make its own research and development interests procedure for determining the energy determination about the confidential throughout the country. Nominations consumption of dishwashers. Today’s status of the information and treat it for one individual who fits several of notice also grants an interim waiver of according to its determination. the categories listed above or for more the dishwasher test procedure. Through Docket: For access to the docket to than one person who fits one category this notice, DOE also solicits comments review the background documents will be accepted. In your nomination with respect to the Whirlpool petition. relevant to this matter, you may visit the letter, please indicate the specific DATES: DOE will accept comments, data, U.S. Department of Energy, 950 L’Enfant membership category for each nominee. and information with respect to the Plaza, SW., (Resource Room of the Each nominee must submit their resume Whirlpool petition until, but no later Building Technologies Program), and biography along with any letters of than August 16, 2010. Washington, DC, 20024; (202) 586–2945, support by the deadline above. All ADDRESSES: You may submit comments, between 9 a.m. and 4 p.m., Monday nominees will be vetted before identified by case number DW–004, by through Friday, except Federal holidays. selection. any of the following methods: Available documents include the Nominations are open to all • following items: (1) This notice; (2) individuals without regard to race, Federal eRulemaking Portal: http:// www.regulations.gov. Follow the public comments received; (3) the color, religion, sex, national origin, age, petition for waiver and application for mental or physical handicap, marital instructions for submitting comments. • E-mail: interim waiver; and (4) prior DOE status, or sexual orientation. To ensure _ _ waivers and rulemakings regarding that recommendations of the Technical AS Waiver [email protected]. Include either the case number [Case similar dishwasher products. Please call Advisory Committee take into account Ms. Brenda Edwards at the above the needs of the diverse groups served No. DW–004], and/or ‘‘Whirlpool Petition’’ in the subject line of the telephone number for additional by the Department, membership shall information regarding visiting the include, to the extent practicable, message. • Mail: Ms. Brenda Edwards, U.S. Resource Room. individuals with demonstrated ability to FOR FURTHER INFORMATION CONTACT: Dr. represent minorities, women, and Department of Energy, Building Technologies Program, Mailstop EE–2J/ Michael G. Raymond, U.S. Department persons with disabilities. Please note, of Energy, Building Technologies however, that registered lobbyists and 1000 Independence Avenue, SW., Washington, DC 20585–0121. Program, Mail Stop EE–2J, Forrestal individuals already serving on another Building, 1000 Independence Avenue, Federal Advisory Committee are Telephone: (202) 586–2945. Please submit one signed original paper copy. SW., Washington, DC 20585–0121. ineligible for nomination. • Telephone: (202) 586–9611. E-mail: Appointments to the Biomass Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of Energy, [email protected]. Research and Development Technical Ms. Elizabeth Kohl, U.S. Department Advisory Committee will be made by Building Technologies Program, 950 L’Enfant Plaza, SW., Suite 600, of Energy, Office of the General Counsel, the Secretary of Energy and the Mail Stop GC–71, Forrestal Building, Secretary of Agriculture. Washington, DC 20024. Please submit one signed original paper copy. 1000 Independence Avenue, SW., Issued at Washington, DC, on July 12, Instructions: All submissions received Washington, DC 20585–0103. 2010. must include the agency name and case Telephone: (202) 586–7796. E-mail: Rachel Samuel, number for this proceeding. Submit [email protected]. Deputy Committee Management Officer. electronic comments in WordPerfect, SUPPLEMENTARY INFORMATION: [FR Doc. 2010–17285 Filed 7–14–10; 8:45 am] Microsoft Word, Portable Document BILLING CODE 6450–01–P Format (PDF), or text (American I. Background and Authority Standard Code for Information Title III of the Energy Policy and Interchange (ASCII)) file format and Conservation Act (‘‘EPCA’’) sets forth a DEPARTMENT OF ENERGY avoid the use of special characters or variety of provisions concerning energy Office of Energy Efficiency and any form of encryption. Wherever efficiency. Part A of Title III provides for ‘‘ Renewable Energy possible, include the electronic the Energy Conservation Program for signature of the author. DOE does not Consumer Products Other Than [Case No. DW–004] accept telefacsimiles (faxes). Automobiles.’’ (42 U.S.C. 6291–6309) Any person submitting written Part A includes definitions, test Energy Conservation Program for comments must also send a copy to the procedures, labeling provisions, energy Consumer Products: Notice of Petition petitioner, pursuant to 10 CFR conservation standards, and the for Waiver of Whirlpool Corporation 431.401(d). The contact information for authority to require information and From the Department of Energy the petitioner is: Mr. J.B. Hoyt, Director, reports from manufacturers. Further, Residential Dishwasher Test Government Relations, Whirlpool Part A authorizes the Secretary of Procedure, and Grant of Interim Waiver Corporation, 2000 M 63, Mail Drop Energy to prescribe test procedures that AGENCY: Office of Energy Efficiency and 3005, Benton Harbor, MI 49022, Phone: are reasonably designed to produce Renewable Energy, Department of (269) 923–4647, E-mail: results which measure energy Energy. [email protected]. efficiency, energy use, or estimated ACTION: Notice of petition for waiver, According to 10 CFR 1004.11, any operating costs, and that are not unduly notice of grant of interim waiver, and person submitting information that he burdensome to conduct. (42 U.S.C. request for comments. or she believes to be confidential and 6293(b)(3)) The test procedure for exempt by law from public disclosure dishwashers is contained in 10 CFR part SUMMARY: This notice announces receipt should submit two copies to DOE: One 430, subpart B, appendix C. of and publishes the Whirlpool copy of the document including all the The regulations set forth in 10 CFR Corporation (Whirlpool) petition for information believed to be confidential, part 430.27 contain provisions that

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enable a person to seek a waiver from Including this water use in the need to make calculations regarding the test procedure requirements for measurement of water consumption average water hardness and average covered consumer products. A waiver during an individual energy test cycle water consumption due to regeneration will be granted by the Assistant could overstate water use by as much as operations that are not currently Secretary for Energy Efficiency and 12 percent, and energy use by as much provided for or allowed by the test Renewable Energy (the Assistant as 6 percent, according to Whirlpool. In procedure. DOE is considering Secretary) if it is determined that the view of the small amount of water development of an averaging procedure basic model for which the petition for consumed during softener regeneration for use as an alternate test procedure in waiver was submitted contains one or and the relative infrequency of the the decision and order on the Whirlpool more design characteristics that regeneration operation, Whirlpool is waiver, and welcomes comments and prevents testing of the basic model requesting approval to measure water data in support of such a procedure. In according to the prescribed test consumption of dishwashers having the meantime, use of EN 50242 would procedures, or if the prescribed test water softeners without including the provide repeatable results, but would procedures may evaluate the basic water consumed by the dishwasher slightly underestimate the energy and model in a manner so unrepresentative during softener regeneration. This is the water use of these models. In its of its true energy consumption approach used in European Standard petition, Whirlpool estimated that, on characteristics as to provide materially EN 50242, ‘‘Electric Dishwashers for average, 23 gallons/year of water and 4 inaccurate comparative data. 10 CFR Household Use—Methods for Measuring kWh/year would be consumed in part 430.27(l). Petitioners must include the Performance.’’ softener regeneration. These values are in their petition any alternate test III. Application for Interim Waiver based on internal testing conducted by procedures known to the petitioner to Whirlpool. Therefore, in the interim evaluate the basic model in a manner Whirlpool also requests an interim waiver, DOE is adding these constant representative of its energy waiver for particular basic models with values to the energy consumption consumption. 10 CFR part integrated water softeners. An interim measured by appendix C. 430.27(b)(1)(iii). The Assistant Secretary waiver may be granted if it is Based on the likelihood of granting may grant the waiver subject to determined that the applicant will the petition for waiver, DOE grants conditions, including adherence to experience economic hardship if the Whirlpool’s application for interim alternate test procedures. 10 CFR part application for interim waiver is denied, waiver. Therefore, Whirlpool shall not 430.27(l). Waivers remain in effect if it appears likely that the petition for be required to test its dishwasher pursuant to the provisions of 10 CFR waiver will be granted, and/or the models: part 430.27(m). Assistant Secretary determines that it KitchenAid brand: The waiver process also allows the would be desirable for public policy reasons to grant immediate relief KUDE60SXSS Assistant Secretary to grant an interim KUDS30SXSS waiver from test procedure pending a determination of the petition requirements to manufacturers that have for waiver. (10 CFR part 430.27(g)). Kenmore brand: petitioned DOE for a waiver of such DOE determined that Whirlpool’s 14052K01 prescribed test procedures. 10 CFR part application for interim waiver does not 14053K01 430.27(a)(2) An interim waiver remains provide sufficient market, equipment 14059K01 in effect for 180 days or until DOE price, shipments, and other 14062K01 issues its determination on the petition manufacturer impact information to 14063K01 for waiver, whichever is sooner. An permit DOE to evaluate the economic 14069K01 interim waiver may be extended for an hardship Whirlpool might experience according to the existing DOE test additional 180 days. 10 CFR part absent a favorable determination on its procedure, which is found in 10 CFR 430.27(h) application for interim waiver. DOE 430, subpart B, appendix C, but shall be understands, however, that the current required to test and rate such products II. Petition for Waiver test procedure may not predict according to the alternate test procedure On March 16, 2010, Whirlpool filed a accurately the water and energy as set forth below. petition for waiver and application for consumption of its line of dishwashers Under appendix C, the water energy interim waiver from the test procedure with a built-in water softener. The test consumption, W or Wg, is calculated applicable to dishwashers set forth in 10 procedure will only register water based on the water consumption as set CFR part 430, subpart B, appendix C. consumption from softener regeneration forth in Sect. 4.3: Whirlpool claims that water softeners in a small fraction of test runs, § 4.3 Water consumption. Measure can prevent consumer behaviors that producing variable results. As a result, the water consumption, V, expressed as consume additional energy and water. and based on the information provided the number of gallons of water delivered Whirlpool also claims that a dishwasher by Whirlpool, DOE determined that the to the machine during the entire test equipped with a water softener will test results may provide materially cycle, using a water meter as specified minimize pre-rinsing and rewashing, inaccurate comparative data. in section 3.3 of this Appendix. and that consumers will have less Whirlpool provided the European Where the regeneration of the water reason to periodically run their Standard EN 50242, ‘‘Electric softener depends on demand and water dishwasher through a clean-up cycle. Dishwashers for Household Use— hardness, and does not take place on Whirlpool also claims that the amount Methods for Measuring the every cycle, Whirlpool shall measure of water consumed by the regeneration Performance,’’ as an alternate test the water consumption of dishwashers operation of a water softener in a procedure. This standard excludes having water softeners without dishwasher is very small, but that it water use due to softener regeneration including the water consumed by the varies significantly depending on the from its water use efficiency measure. dishwasher during softener adjustment of the softener. The DOE notes that if water consumption of regeneration. If a regeneration operation regeneration operation takes place a regeneration operation is to be takes place within the test, the water infrequently, and the frequency is apportioned across all cycles of consumed by the regeneration operation related to the level of water hardness. operation, then manufacturers would shall be disregarded when declaring

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water and energy consumption, but specific model numbers of affected which is designed to periodically constant values of 23 gallons/year of dishwashers in Section 2 (below). regenerate. During the regeneration water and 4 kWh/year of energy shall be This Amended Petition For Waiver operation water is flushed through the added to the values measured by and Application for Interim Waiver is water softener. The regeneration appendix C. directed to dishwashers containing a operation occurs infrequently and built-in or integrated water softener. 10 depends on the adjustment of the IV. Summary and Request for CFR 430.27(a)(1) provides that a softener. Water used during the Comments manufacturer may submit a Petition to regeneration operation is in addition to Through today’s notice, DOE waive a requirement of § 430.23 upon the water used by the dishwasher announces receipt of Whirlpool’s grounds that the basic model contains during a dishwasher ‘‘normal’’ cycle. petition for waiver from certain parts of one or more design characteristics 3. Background. the test procedure that apply to which either prevent testing of the basic dishwashers. DOE is publishing model according to the prescribed test A water softener reduces water Whirlpool’s petition for waiver in its procedures, or the prescribed test hardness. Hard water is water that has entirety pursuant to 10 CFR procedures may evaluate the basic high mineral content (in contrast with 430.27(b)(1)(iv). The petition contains model in a manner so unrepresentative soft water). Hard water minerals 2+ no confidential information. The of its true energy consumption primarily consist of calcium (Ca ), and 2+ petition includes a suggested alternate characteristics as to provide materially magnesium (Mg ) metal cations, and test procedure which is to measure the inaccurate comparative data. sometimes other dissolved compounds water consumption of dishwashers Additionally, 10 CFR 430.27(b)(2) such as bicarbonates and sulfates. Water having water softeners without allows an applicant to request an hardness varies throughout the United including the water consumed by the Interim Waiver if economic hardship States. Based on information provided dishwasher during softener and/or competitive disadvantage is by the U.S. Geological Survey, the mean regeneration. DOE is interested in likely to result absent a favorable water hardness within the U.S. is 217 receiving comments from interested determination on the Application for mg/liter (milligrams per liter), which is parties on all aspects of the petition, Interim Waiver. the equivalent of 12.6 grains/gallon. See including the suggested alternate test For the reasons set forth below, http://water.usgs.gov/owq/hardness- procedure and any alternate test Whirlpool submits that the testing of alkalinity.html Hard water reduces the effectiveness procedure. Pursuant to 10 CFR dishwashers equipped with water of detergent leading to the need for 430.27(b)(1)(iv), any person submitting softeners under the Test Procedure will additional detergent. The amount of written comments to DOE must also lead to results that may be materially rinse aid use is also affected by water send a copy to the petitioner, whose inaccurate and mislead consumers. contact information is included in the hardness; more rinse aid is necessary to achieve good results with hard water. ADDRESSES section above. 1. Petitioner. Whirlpool Corporation is the world’s As a result, high water hardness can Issued in Washington, DC, on July 8, 2010. contribute to filming on dishwasher Cathy Zoi, leading manufacturer and marketer of major home appliances, with annual items, leading to consumer behaviors Assistant Secretary, Energy Efficiency and sales of approximately $17 billion in such as increased pre-rinsing and, in Renewable Energy. some cases, rewashing of dishes either 2009, 67,000 employees, and 67 by hand or by subsequent dishwasher J.B. Hoyt manufacturing and technology research cycles. Further, hard water can lead to Director, Government Relations centers around the world. The company the presence of scale build-up within May 26, 2010 markets Whirlpool, Maytag, KitchenAid, Via e-mail ([email protected]) and the dishwasher requiring periodic Jenn-Air, Amana, Brastemp, Consul, Overnight Mail dishwasher cleaning (clean-up). Bauknecht and other major brand names The Honorable Catherine Zoi Accordingly, systems that reduce Assistant Secretary, Energy Efficiency to consumers in nearly every country water hardness can prevent behaviors and Renewable Energy around the world. that consume additional energy and U.S. Department of Energy 2. Identification of Basic Models. water. Specifically, a dishwasher Mail Station EE–10 This Amended Petition For Waiver equipped with a water softener will 1000 Independence Avenue SW minimize pre-rinsing and rewashing. Washington, DC 20585 and Application for Interim Waiver is made with respect to all basic models of Further, consumers will have less A. Re: Amended Petition For Waiver dishwashers that incorporate an reason to periodically run their and Application for Interim Waiver integrated water softener (‘‘Basic dishwasher through a clean-up cycle. Under common water softener Under 10 CFR 430.27 for Models’’). The Basic Model numbers are technology, water passing through a Dishwasher: With Integrated Water identified as follows: resin tank loses positively charged Softener KitchenAid brand: calcium and magnesium ions to Dear Assistant Secretary Zoi: KUDE60SXSS Whirlpool Corporation (Whirlpool) negatively charged plastic beads. The KUDS30SXSS respectfully submits this Amended water is softened in this manner till the Petition For Waiver and Application for Kenmore brand: plastic beads no longer can supply a Interim waiver, pursuant to 10 CFR 14052K01 negative charge. A brine tank is 430.27, to the U.S. Department of 14053K01 provided and holds a salt solution that Energy (DOE) regarding the test 14059K01 periodically flushes and regenerates the procedure specified in 10 CFR Part 430, 14062K01 resin tank, replacing calcium and Subpt. B, App. C (Test Procedure) for 14063K01 magnesium ions with sodium. The measuring the energy consumption of 14069K01 water softening regeneration process dishwashers. This Petition is being The design characteristic that is requires water for both regeneration and amended, pursuant to the request of the common among the Basic Models is an for back-rinsing processes. For the Department, for purposes of identifying integrated automatic water softener purposes of this Waiver, both water

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usages are combined and used under the regeneration operation takes place, disregarded when declaring water and term ‘‘regeneration.’’ within the test procedure, it shall be energy consumption. In a dishwasher equipped with a disregarded when declaring energy, 5. Grounds For Waiver and Interim consumer adjustable water softener, water and time values. (Emphasis Waiver. water softener regeneration does not added) take place during every cycle. Rather, Note: The frequency of the 10 CFR 430.27(a)(1) provides that a regeneration takes place as a function of regeneration operations in some Petition to waive a requirement of home water supply water hardness, machines is not predictable and § 430.23 may be submitted upon determined by a customer adjustable depends on the adjustment of the grounds that the basic model contains dishwasher water hardness level setting. softener and the water hardness of the one or more design characteristics For a conventional dishwasher in a water used by the laboratories. which either prevent testing of the basic home with the mean water hardness of In the test report, it shall be stated model according to the prescribed test 12.6 grains per gallon, water softener whether regeneration(s) occurred during procedures, or the prescribed test regeneration may take place the five (or more) test cycles. procedures may evaluate the basic approximately every six to eight cycles. European Standard EN 50242 model in a manner so unrepresentative However, regeneration may vary recognizes that including the water used of its true energy consumption significantly, depending on customer during a regeneration operation would characteristics as to provide materially adjusted hardness level setting. As evaluate the tested dishwasher in a inaccurate comparative data. indicated by the U.S. Geological Survey manner so unrepresentative of its true As noted above, the inclusion of a information, water hardness within the energy consumption characteristics as to water softener in a dishwasher is likely U.S. varies significantly. For a provide materially inaccurate to lead to water and energy savings due significant population of U.S. comparative data. Based on the to enhanced effectiveness of the consumers, their water hardness is such infrequency of the regeneration dishwasher. This advance in technology that no water softener operation is operation, including the water used offers consumers a new benefit that required. during a regeneration operation in the should not be discouraged by the Test The amount of water used for softener measurement of water consumption Procedure. Additionally, the amount of regeneration, when apportioned evenly during an individual energy test cycle water consumed by the regeneration across all dishwasher cycles, is very could lead to overstating the water use operation of a water softener in a small. For conventional dishwashers, by as much as 12%, and overstating the dishwasher is very small and varies Whirlpool estimates that the typical energy use by as much as 6%.2 significantly depending on the water use during regeneration ranges adjustment of the softener. between two to three (2–3) liters (0.5– 4. Requirements Sought To Be Waived. In view of the small amount of water 0.8 gallons). If this amount is The Basic Models are subject to the consumed during softener regeneration apportioned across six cycles (a provisions of 10 CFR Part 430, Subpt. B, and the relative infrequency of the reasonable average regeneration App. C of the Test Procedure, which regeneration operation, Whirlpool is frequency rate), the water usage due to specifies the calculation of water energy requesting approval to measure water regeneration is approximately 0.41 consumption for non-soil-sensing and consumption of dishwashers having liters/cycle (0.11 gallons/cycle). Based soil-sensing dishwashers using water softeners without including the upon 215 dishwasher cycles per year 1, electrically or gas/oil heated water. water consumed by the dishwasher the estimated annual water and energy Under the Test Procedure, the water during softener regeneration. If this consumption, due to water softener energy consumption, W or Wg, are Waiver and Interim Waiver are not regeneration, will be approximately 23 calculated based on the water granted, there will be significant gallons/year of water and 4 kWh/year, consumption as set forth in 10 CFR Part uncertainty in the method for measuring respectively. This is less than 1.5% of 430, Subpt. B, App. C, Sect. 4.3: water consumption for dishwashers the total energy use of the average § 4.3 Water consumption. Measure with water softeners. If water dishwasher. the water consumption, V, expressed as consumption due to water softeners is Providing a dishwasher with a water the number of gallons of water delivered measured during an energy cycle, softener is not new. Most dishwashers to the machine during the entire test without any apportionment of this water manufactured and sold in European cycle, using a water meter as specified across all cycles, energy use for a countries contain water softeners. Under in section 3.3 of this Appendix. dishwasher could be overstated by a the European Standard EN 50242 Whirlpool is requesting approval to significant amount. If water ‘‘Electric Dishwashers for Household measure water consumption of consumption of a regeneration operation Use—Methods for Measuring the dishwashers having water softeners is to be apportioned across all cycles of Performance,’’ water usage and energy without including the water consumed operation, then manufacturers would associated with water softeners is not by the dishwasher during softener need to make calculations regarding included. regeneration. Similar to the European average water hardness and average § 8.2.1 of EN 50242 is set forth standard EN 50242, Whirlpool is water consumptions due to regeneration below: proposing that if a regeneration operations that are not currently § 8.2.1 Regeneration operations operation takes place within the test provided for or allowed by the Test For dishwashers, where the procedure, the water consumed by the Procedure. regeneration of the water softener regeneration operation shall be 6. Justification for Whirlpool’s Interim depends on demand and water Waiver Application. hardness, and does not take place on 2 Under energy testing of a soil-sensing every cycle; when calculating the dishwasher, energy consumption is derived from Granting of an Interim Waiver is arithmetical mean value of the energy, normal cycle operation at a low, medium and high justified in this case because Whirlpool soil sensor response. The 6% estimate is the has provided strong evidence that water consumption and time, if a potential additional energy consumption that may occur if a regeneration operation occurs during the demonstrates the likelihood of the 1 The annual dishwasher usage set forth in the light sensor response dishwasher cycle. 10 CFR Part granting of the Amended Petition for Test Procedure. 430, Subpt. B, App. C, § 5.3.2. Waiver.

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Additionally, Whirlpool will suffer amended to exclude the water and Division, Office of Air and Radiation, significant economic hardship and energy consumed during a water Mail Code 6205J, Environmental competitive disadvantage if this Interim softener regeneration operation. Protection Agency, 1200 Pennsylvania Waiver Application is not granted and Whirlpool certifies that all Ave., NW., Washington, DC 20460; there are strong public policy manufacturers of domestically marketed telephone number: (202) 343–9512; fax justifications to issue an Interim Waiver dishwashers identified above have been number: (202) 343–2338; e-mail address: to help promote uniform interpretation notified by letter of this Amended [email protected]. and application of the Test Procedure to Petition and application. Copies of such SUPPLEMENTARY INFORMATION: EPA has dishwashers with water softeners. As letter and related certification are submitted the following ICR to OMB for discussed above, if this Interim Waiver attached hereto. review and approval according to the is not granted, there will be significant Sincerely, procedures prescribed in 5 CFR 1320.12. uncertainty in how to measure water /s/J.B. Hoyt On February 22, 2010 (75 FR 7584), EPA consumption for dishwashers with lllllllllllllllllll sought comments on this ICR pursuant water softeners. This will cause J.B. Hoyt to 5 CFR 1320.8(d). EPA received no economic hardship and competitive Director, Government Relations comments. Any additional comments on disadvantage for Whirlpool. There are Whirlpool Corporation this ICR should be submitted to EPA long lead times and significant expenses [FR Doc. 2010–17295 Filed 7–14–10; 8:45 am] and OMB within 30 days of this notice. associated with the design and BILLING CODE 6450–01–P EPA has established a public docket manufacture of dishwashers. for this ICR under Docket ID No. EPA– Compliance with federally mandated HQ–OAR–2009–0911, which is energy consumption standards and ENVIRONMENTAL PROTECTION available for online viewing at http:// ENERGY STAR criteria is a critical AGENCY www.regulations.gov, or in person design factor for dishwashers. Any [EPA–HQ–OAR–2009–0911; FRL–9176–1] viewing at the Air Docket in the EPA delay in obtaining clarity on this issue Docket Center (EPA/DC), EPA West, will cause Whirlpool economic Room 3334, 1301 Constitution Ave., hardship and competitive disadvantage. Agency Information Collection Activities; Submission to OMB for NW., Washington, DC. The EPA/DC 7. Manufacturers of Similar Products Review and Approval; Comment Public Reading Room is open from 8:30 and Affected Manufacturers. Request; Mobile Air Conditioner a.m. to 4:30 p.m., Monday through We believe that at least two Retrofitting Program (Renewal); EPA Friday, excluding legal holidays. The dishwasher manufacturers, BSH Home ICR No. 1774.05, OMB Control No. telephone number for the Reading Room Appliances Corp. (Bosch-Siemens 2060–0350 is 202–566–1744, and the telephone Hausgerate GmbH) and Miele Inc., are number for the Air Docket is 202–566– AGENCY: Environmental Protection 1742. currently selling in the U.S. Agency (EPA). dishwashers with an integrated water Use EPA’s electronic docket and ACTION: softener. Notice. comment system at http:// www.regulations.gov, to submit or view The manufacturers that sell SUMMARY: In compliance with the public comments, access the index dishwashers in the United States Paperwork Reduction Act (PRA) (44 include ASKO Appliances, Inc., BSH listing of the contents of the docket, and U.S.C. 3501 et seq.), this document to access those documents in the docket Home Appliances Corp. (Bosch-Siemens announces that an Information Hausgerate GmbH), Electrolux North that are available electronically. Once in Collection Request (ICR) has been the system, select ‘‘docket search,’’ then America, Inc., Fisher & Paykel forwarded to the Office of Management Appliances, GE Appliances and key in the docket ID number identified and Budget (OMB) for review and above. Please note that EPA’s policy is Lighting, Haier America, Indesit approval. This is a request to renew an Company Sa, LG Electronics USA, that public comments, whether existing approved collection. The ICR, submitted electronically or in paper, Miele, Inc., Samsung Electronics Co., which is abstracted below, describes the and Viking Range Corporation. The will be made available for public nature of the information collection and viewing at http://www.regulations.gov Association of Home Appliances its estimated burden and cost. Manufacturers is also generally as EPA receives them and without DATES: Additional comments may be interested in energy efficiency change, unless the comment contains submitted on or before August 16, 2010. requirements for appliances, including copyrighted material, confidential dishwashers. Whirlpool will notify all ADDRESSES: Submit your comments, business information (CBI), or other these entities as set forth in the referencing Docket ID No. EPA–HQ– information whose public disclosure is Department’s rules and provide them OAR–2009–0911 to (1) EPA online restricted by statute. For further with a version of this Amended Petition using www.regulations.gov (our information about the electronic docket, and Application. preferred method), by e-mail to a-and-r- go to http://www.regulations.gov. [email protected], or by mail to: EPA Title: Mobile Air Conditioner 8. Conclusion. Docket Center, Environmental Retrofitting Program (Renewal) Whirlpool respectfully submits that Protection Agency, Air and Radiation ICR numbers: EPA ICR No. 1774.05, by granting this Amended Waiver Docket, Mail Code 28221T, 1200 OMB Control No. 2060–0350. Petition and Application for Interim Pennsylvania Ave., NW., Washington, ICR Status: This ICR is scheduled to Waiver, the Department will ensure that DC 20460, and (2) OMB by mail to: expire on July 31, 2010. Under OMB advancements in technology and Office of Information and Regulatory regulations, the Agency may continue to consumer beneficial innovations are not Affairs, Office of Management and conduct or sponsor the collection of hindered by regulations, and that Budget (OMB), Attention: Desk Officer information while this submission is similar products are tested and rated for for EPA, 725 17th Street, NW., pending at OMB. An Agency may not energy consumption on a comparable Washington, DC 20503. conduct or sponsor, and a person is not basis. This waiver should continue until FOR FURTHER INFORMATION CONTACT: required to respond to, a collection of the Test Procedure can be formally Yaidi Cancel, Stratospheric Protection information, unless it displays a

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currently valid OMB control number. for a Federal agency. This includes the ENVIRONMENTAL PROTECTION The OMB control numbers for EPA’s time needed to review instructions; AGENCY regulations in title 40 of the CFR, after develop, acquire, install, and utilize [EPA–HQ–OECA–2009–0544; FRL–9176–2] appearing in the Federal Register when technology and systems for the purposes approved, are listed in 40 CFR part 9 of collecting, validating, and verifying Agency Information Collection and are displayed either by publication information, processing and Activities; Submission to OMB for in the Federal Register or by other maintaining information, and disclosing Review and Approval; Comment appropriate means, such as on the and providing information; adjust the Request; NESHAP for Stationary related collection instrument or form, if existing ways to comply with any Combustion Turbines (Renewal), EPA applicable. The display of OMB control previously applicable instructions and ICR Number 1967.04, OMB Control numbers in certain EPA regulations is requirements which have subsequently Number 2060–0540 consolidated in 40 CFR part 9. Abstract: EPA’s Significant New changed; train personnel to be able to AGENCY: Environmental Protection Alternatives Policy (SNAP) program respond to a collection of information; Agency (EPA). search data sources; complete and implements Section 612 of the 1990 ACTION: Notice. Clean Air Act (CAA) Amendments review the collection of information; which authorized the Agency to and transmit or otherwise disclose the SUMMARY: In compliance with the establish regulatory requirements to information. Paperwork Reduction Act (44 U.S.C. ensure that ozone-depleting substances Respondents/Affected Entities: new 3501 et seq.), this document announces (ODS) are replaced by alternatives that and used car dealers, gas service that an Information Collection Request reduce overall risks to human health stations, top and body repair shops, (ICR) has been forwarded to the Office of Management and Budget (OMB) for and the environment, and to promote an general automotive repair shops, review and approval. This is a request expedited transition to safe substitutes. automotive repair shops not elsewhere To promote this transition, CAA to renew an existing approved classified, including air conditioning specified that EPA establish an collection. The ICR which is abstracted and radiator specialty shops. information clearinghouse of available below describes the nature of the alternatives, and coordinate with other Estimated Number of Respondents: collection and the estimated burden and Federal agencies and the public on 6,500. cost. research, procurement practices, and Frequency of Response: Once. DATES: Additional comments may be information and technology transfers. submitted on or before August 16, 2010. Since the program’s inception in Estimated Total Annual Hour Burden: 1,500. ADDRESSES: Submit your comments, 1994, SNAP has reviewed over 400 new referencing docket ID number EPA–HQ– chemicals and alternative Estimated Total Annual Cost: OECA–2009–0544, to: (1) EPA online manufacturing processes for a wide $106,833, includes $105,000 in labor using http://www.regulations.gov (our range of consumer, industrial, space costs and $1,833 in annualized capital preferred method), or by e-mail to exploration, and national security or O&M costs. [email protected], or by mail to: EPA applications. Roughly 90% of Changes in the Estimates: There is a Docket Center (EPA/DC), Environmental alternatives submitted to EPA for review Protection Agency, Enforcement and have been listed as acceptable for a decrease of 26,278 hours in the total estimated burden currently identified in Compliance Docket and Information specific use, typically with some Center, mail code 28221T, 1200 condition or limit to minimize risks to the OMB Inventory of Approved ICR Burdens. This decrease is because the Pennsylvania Avenue, NW., human health and the environment. Washington, DC 20460; and (2) OMB at: Regulations promulgated under SNAP number of cars that could be retrofitted Office of Information and Regulatory require that Motor Vehicle Air to use a SNAP substitute refrigerant is Affairs, Office of Management and Conditioners (MVACs) retrofitted to use decreasing significantly. New cars sold Budget (OMB), Attention: Desk Officer a SNAP substitute refrigerant include before 1994 contain CFC–12 air for EPA, 725 17th Street, NW., basic information on a label to be conditioning systems and the number of Washington, DC 20503. affixed to the MVAC. The label includes those cars in operation has decreased FOR FURTHER INFORMATION CONTACT: the name of the substitute refrigerant, since this last ICR renewal. (New cars Robert C. Marshall, Jr., Office of when and by whom the retrofit was sold after 1994 contain a SNAP performed, environmental and safety Compliance, Mail Code: 2223A, substitute refrigerant and do not need to Environmental Protection Agency, 1200 information about the substitute be retrofitted.) With fewer CFC–12 refrigerant, and other information. This Pennsylvania Avenue, NW., MVACs on the road (pre-1994 cars), Washington, DC 20460; telephone information is needed so that there will be fewer retrofits to new subsequent technicians working on the number: (202) 564–7021; fax number: SNAP approved refrigerants and subject (202) 564–0050; e-mail address: MVAC will be able to service the to this ICR. equipment properly, decreasing the [email protected]. likelihood of significant refrigerant Dated: July 9, 2010. SUPPLEMENTARY INFORMATION: EPA has cross-contamination and potential John Moses, submitted the following ICR to OMB for failure of air conditioning systems and Director, Collection Strategies Division. review and approval according to the recovery/recycling equipment. [FR Doc. 2010–17280 Filed 7–14–10; 8:45 am] procedures prescribed in 5 CFR 1320.12. Burden Statement: The annual public On July 30, 2009 (74 FR 38005), EPA BILLING CODE 6560–50–P reporting and recordkeeping burden for sought comments on this ICR pursuant this collection of information is to 5 CFR 1320.8(d). EPA received no estimated to average 5 minutes per comments. Any additional comments on response. Burden means the total time, this ICR should be submitted to EPA effort, or financial resources expended and OMB within 30 days of this notice. by persons to generate, maintain, retain, EPA has established a public docket or disclose or provide information to or for this ICR under docket ID number

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EPA–HQ–OECA–2009–0544, which is Provisions specified at 40 CFR part 63, Dated: July 9, 2010. available for public viewing Online at subpart YYYY. Owners or operators of John Moses, http://www.regulations.gov, in person the affected facilities must submit a one- Director, Collection Strategies Division. viewing at the Enforcement and time-only report of any physical or [FR Doc. 2010–17278 Filed 7–14–10; 8:45 am] Compliance Docket in the EPA Docket operational changes, initial performance BILLING CODE 6560–50–P Center (EPA/DC), EPA West, Room tests, and periodic reports and results. 3334, 1301 Constitution Avenue, NW., Owners or operators are also required to Washington, DC. The EPA Docket maintain records of the occurrence and ENVIRONMENTAL PROTECTION Center Public Reading Room is open duration of any startup, shutdown, or AGENCY from 8:30 a.m. to 4:30 p.m., Monday malfunction in the operation of an through Friday, excluding legal affected facility, or any period during [EPA–HQ–OAR–2010–0560; FRL–9175–9] holidays. The telephone number for the which the monitoring system is Call for Information: Information on Reading Room is (202) 566–1744, and inoperative. Reports, at a minimum, are Greenhouse Gas Emissions the telephone number for the required semiannually. Associated With Bioenergy and Other Enforcement and Compliance Docket is Burden Statement: The annual public Biogenic Sources (202) 566–1752. reporting and recordkeeping burden for Use EPA’s electronic docket and this collection of information is AGENCY: Environmental Protection comment system at http:// estimated to average 8 hours (rounded) Agency (EPA). www.regulations.gov, to submit or view per response. Burden means the total ACTION: Call for Information. public comments, access the index time, effort, or financial resources listing of the contents of the docket, and expended by persons to generate, SUMMARY: EPA is publishing this Call for to access those documents in the docket maintain, retain, or disclose or provide Information to solicit information and that are available electronically. Once in information to or for a Federal agency. viewpoints from interested parties on the system, select ‘‘docket search,’’ then This includes the time needed to review approaches to accounting for key in the docket ID number identified instructions; develop, acquire, install, greenhouse gas emissions from above. Please note that EPA’s policy is and utilize technology and systems for bioenergy and other biogenic sources. that public comments, whether the purposes of collecting, validating, The purpose of this Call is to request submitted electronically or in paper, and verifying information, processing comment on developing an approach for will be made available for public and maintaining information, and such emissions under the Prevention of viewing at http://www.regulations.gov, disclosing and providing information; Significant Deterioration (PSD) and Title as EPA receives them and without adjust the existing ways to comply with V Programs as well as to receive data change, unless the comment contains any previously applicable instructions submissions about these sources and copyrighted material, Confidential and requirements which have their emissions, general technical Business Information (CBI), or other subsequently changed; train personnel comments on accounting for these information whose public disclosure is to be able to respond to a collection of emissions, and comments on the restricted by statute. For further information; search data sources; underlying science that should inform information about the electronic docket, complete and review the collection of possible accounting appoaches. go to http://www.regulations.gov. information; and transmit or otherwise DATES: Information and comments must Title: NESHAP for Stationary disclose the information. Combustion Turbines (Renewal). be received on or before September 13, Respondents/Affected Entities: 2010. ICR Numbers: EPA ICR Number Stationary combustion turbines. 1967.04, OMB Control Number 2060– Estimated Number of Respondents: ADDRESSES: Submit your information, 0540. 31. identified by Docket ID No. EPA–HQ– ICR Status: This ICR is scheduled to Frequency of Response: OAR–2010–0560, by one of the expire on September 30, 2010. Under Semiannually. following methods: OMB regulations, the Agency may Estimated Total Annual Hour Burden: • Federal eRulemaking Portal: http:// continue to conduct or sponsor the 435. www.regulations.gov: Follow the online collection of information while this Estimated Total Annual Cost: instructions for submitting comments. submission is pending at OMB. An $42,652, which includes $41,152 in • E-mail: [email protected]. agency may not conduct or sponsor, and labor costs, $1,500 in capital/startup • Fax: (202) 566–1741. a person is not required to respond to, costs and no operation and maintenance • Mail: EPA Docket Center, Attention a collection of information unless it costs. Docket OAR–2010–0560, Mail code displays a currently valid OMB control Changes in the Estimates: There is no 2822T, 1200 Pennsylvania Avenue, number. The OMB control numbers for change in the labor hours to NW., Washington, DC 20460. EPA’s regulations in title 40 of the CFR, respondents in this ICR compared to the • Hand/Courier Delivery: EPA Docket after appearing in the Federal Register previous ICR. This is due to two Center, Public Reading Room, Room when approved, are listed in 40 CFR considerations: (1) The regulations have 3334, EPA West Building, Attention part 9, and displayed either by not changed over the past three years Docket OAR–2010–0560, 1301 publication in the Federal Register or and are not anticipated to change over Constitution Avenue, NW., Washington, by other appropriate means, such as on the next three years; and (2) the growth DC 20004. Such deliveries are only the related collection instrument or rate for the industry is very low, accepted during the Docket’s normal form, if applicable. The display of OMB negative or non-existent. Therefore, the hours of operation, and special control numbers in certain EPA labor hours in the previous ICR reflect arrangements should be made for regulations is consolidated in 40 CFR the current burden to the respondents deliveries of boxed information. part 9. and are reiterated in this ICR. Instructions: Direct your information Abstract: The affected entities are The increase in cost to the and comments to Docket ID No. EPA– subject to the General Provisions of the respondents and the Agency is due to HQ–OAR–2010–0560. EPA’s policy is NESHAP at 40 CFR part 63, subpart A, labor rate adjustments to reflect the that all information received will be and any changes, or additions to the most recent available estimates. included in the public docket without

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change and may be made available SUPPLEMENTARY INFORMATION: that should inform possible accounting online at http://www.regulations.gov, approaches. Table of Contents including any personal information In response to this Call for provided, unless the information I. General Information Information, interested parties are includes information claimed to be A. What is today’s action? invited to assist EPA in the following: Confidential Business Information (CBI) B. What additional background information (1) Surveying and assessing the science or other information whose disclosure is is EPA making available? by submitting research studies or other restricted by statute. Do not submit C. Where can I get the information? relevant information, and (2) evaluating information that you consider to be CBI D. What specific information is EPA seeking? different accounting approaches and or otherwise protected through http:// E. What should I consider as I prepare my options by providing policy analyses, information and comments for EPA? proposed or published methodologies, www.regulations.gov. The http:// F. Submitting Confidential Business www.regulations.gov Web site is an Information (CBI). or other relevant information. Interested ‘‘anonymous access’’ system, which parties are also invited to submit data or means EPA will not know your identity I. General Information other relevant information about the or contact information unless you current and projected scope of GHG A. What is today’s action? provide it in the body of your comment. emissions from bioenergy and other If you send an e-mail comment directly On June 3, 2010, EPA published the biogenic sources. to EPA without going through http:// final Prevention of Significant B. What additional background www.regulations.gov your e-mail Deterioration and Title V Greenhouse information is EPA making available? address will be automatically captured Gas Tailoring Rule (known hence forth and included as part of the comment as the Tailoring Rule) (75 FR 31514). In National-level GHG inventories are a that is placed in the public docket and that Rule, EPA did not take action on a common starting point for evaluations and discussions of approaches to made available on the Internet. If you request from commenters to exclude 1 accounting for GHG emissions from submit an electronic comment, EPA CO2 emissions from biogenic fuels . bioenergy sources. EPA’s Inventory of recommends that you include your Instead, EPA explained that the legal U.S. Greenhouse Gas Emissions and name and other contact information in basis for the Rule, reflecting specifically Sinks (the Inventory) 2 is an impartial, the body of your comment and with any the overwhelming permitting burdens policy-neutral report that tracks annual disk or CD–ROM you submit. If EPA that would be created under the GHG emissions including carbon cannot read your comment due to statutory emissions thresholds, does not dioxide (CO ), methane (CH ), nitrous technical difficulties and cannot contact itself provide a rationale for excluding 2 4 oxide (N2O), hydrofluorocarbons you for clarification, EPA may not be all emissions of CO2 from combustion of (HFCs), perfluorocarbons (PFCs), and able to consider your comment. a particular fuel, even a biogenic one. The fact that the Tailoring Rule did not sulfur hexafluoride (SF6). The United Electronic files should avoid the use of States has submitted the Inventory to special characters or any form of take final action one way or another concerning such an exclusion does not the Secretariat of the United Nations encryption, and should be free of any Framework Convention on Climate defects or viruses. mean that EPA has decided there is no basis for treating biomass CO emissions Change (UNFCCC) under its obligation Docket: All documents in the docket 2 as a Party to the Convention every year are listed in the http:// differently from fossil fuel CO2 emissions under the Clean Air Act’s since 1993. The UNFCCC, ratified by the www.regulations.gov index. Although United States in 1992, defines the listed in the index, some information is PSD and Title V Programs. Further, in finalizing the Tailoring Rule, the overall framework for intergovernmental not publicly available, e.g., CBI or other efforts to tackle the challenge posed by Agency did not have sufficient information whose disclosure is climate change. The Inventory information to address the issue of the restricted by statute. Certain other submitted by the United States is carbon neutrality of biogenic energy in material, such as copyrighted material, consistent with national inventory data any event. will be publicly available only in hard submitted by other UNFCCC Parties, copy. Publicly available docket This Call for Information serves as a first step for EPA in considering options and uses internationally accepted materials are available either methodologies established by the electronically in http:// for addressing emissions of biogenic CO under the PSD and Title V Intergovernmental Panel on Climate www.regulations.gov or in hard copy at 2 Change (IPCC). programs as indicated above. EPA’s Docket Center, Public Reading The Revised 1996 IPCC Guidelines Given the broad and complex nature Room, EPA West Building, Room 3334, (IPCC Guidelines) 3 provide of this issue, EPA also welcomes 1301 Constitution Ave., NW., methodologies for estimating all stakeholders to respond to this Call for Washington, DC 20004. This Docket anthropogenic sources and sinks of GHG Information by providing data Facility is open from 8:30 a.m. to 4:30 emissions at the national scale, submissions about these sources and p.m., Monday through Friday, excluding classified into six broad sectors: Energy, their emissions and technical comments legal holidays. The telephone number Industrial Processes, Solvents and Other on approaches generally to accounting for the Public Reading Room is (202) Product Uses, Agriculture, Land-Use for GHG emissions from bioenergy and 566–1744, and the telephone number for Change and Forestry (LUCF), and Waste. other biogenic sources. EPA requests the Air Docket is (202) 566–1742. The Energy Sector includes all GHGs that stakeholders provide relevant FOR FURTHER INFORMATION CONTACT: information on the underlying science Jennifer Jenkins, Climate Change 2 US EPA. 2010. Inventory of U.S. Greenhouse Gas Emissions and Sinks: 1990–2008. U.S. EPA Division, Office of Atmospheric 1 GHG emissions from bioenergy and other #430–R–10–06. Available in Docket at EPA–HQ– Programs (MC–6207J), Environmental biogenic sources are generated during the OAR–2010–0560. Protection Agency, 1200 Pennsylvania combustion or decomposition of biologically-based 3 Intergovernmental Panel on Climate Change Ave., NW., Washington, DC 20460; material, and include sources such as, but not (IPCC). 1996. Revised 1996 IPCC Guidelines for telephone number: (202) 343–9361; fax limited to, utilization of forest or agricultural National Greenhouse Gas Inventories, Prepared by products for energy, wastewater treatment and the National Greenhouse Gas Inventories number: (202) 343–2359; e-mail address: livestock management facilities, landfills, and Programme. Published: IGES, Japan. 3 Volumes. [email protected]. fermentation processes for ethanol production. Available in Docket at EPA–HQ–OAR–2010–0560.

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emitted during the production, Separately, to assist interested parties Subcommittee, Clean Air Act Advisory transformation, handling and in considering the broader issues Committee. February 3, 2010. consumption of energy commodities, pertaining to this Call for Information, • Manomet Center for Conservation including fuel combustion. The LUCF EPA has assembled and placed into the Sciences. 2010. Massachusetts Biomass Sector includes emissions and docket a set of documents relevant to Sustainability and Carbon Policy Study: sequestration resulting from human the topic of today’s action. This Report to the Commonwealth of activities which change the way land is collection of documents is not intended Massachusetts Department of Energy used or which affect the amount of to represent a complete or exhaustive Resources. Walker, T. (Ed.). biomass in existing biomass stocks. set of materials, but rather serves as a Contributors: Cardellichio, P., Colnes, According to the IPCC Guidelines, CO2 starting point to provide further A., Gunn, J., Kittler, B., Recchia, C., emissions from biomass combustion background information to interested Saah, D., and Walker, T. Natural Capital ‘‘* * * should not be included in national parties regarding key concepts and Initiative Report NCI–2010–03. CO2 emissions from fuel combustion. If scientific research. For example, the Brunswick, Maine. energy use, or any other factor, is causing a Docket includes for review the • USDA Forest Service, Pacific long term decline in the total carbon following information: Southwest Research Station. 2009. embodied in standing biomass (e.g. forests), • U.S. EPA. 2010. Inventory of U.S. Biomass to Energy: Forest Management this net release of carbon should be evident Greenhouse Gas Emissions and Sinks: for Wildfire Reduction, Energy in the calculation of CO2 emissions described 1990–2008. U.S. EPA #430–R–10–06. Production, and Other Benefits. in the Land Use Change and Forestry • Intergovernmental Panel on Climate chapter.’’ 4 California Energy Commission, Public Change (IPCC). 1996. Revised 1996 IPCC Interest Energy Research (PIER) Thus, at the national level, these CO2 Guidelines for National Greenhouse Gas Program. CEC–500–2009–080. emissions are not included in the Inventories, Prepared by the National • Searchinger, T., Hamburg, S., estimate of emissions from a country’s Greenhouse Gas Inventories Programme. Melillo, J., Chameides, W., Havlik, P., Energy Sector, even though the Published: IGES, Japan. • Kammen, D., Likens, G., Lubowski, R., emissions physically occur at the time IPCC. 2000. Special Report on Land Obersteiner, M., Oppenheimer, W., and place in which useful energy is Use, Land-Use Change, and Forestry. Robertson, G.P., Schlesinger, W., being generated (i.e., power plant or Watson, R., Noble, I., Bolin, B., Tilman, G.D. 2009. Fixing a critical automobile). The purpose of this Ravindranath, N., Verardo, D., and climate accounting error. Science 326: accounting convention is to avoid Dokken, D. (eds.). Cambridge: 527–528. double-counting that would provide a Cambridge University Press. • • Meridian Institute. 2010. Summary misleading characterization of a IPCC. 2000. Good Practice Guidance of Bioenergy Greenhouse Gas country’s contribution to global GHG and Uncertainty Management in Accounting Stakeholder Group emissions (i.e., to avoid having CO2 National Greenhouse Gas Inventories, Discussions. May 13, 2010. Washington, emissions accounted both in the Energy Prepared by the National Greenhouse DC. Sector and the LUCF Sector). Carbon Gas Inventories Programme. Published: dioxide emissions from bioenergy IGES, Japan. C. Where can I get the information? • sources are still reported as information IPCC. 2003. Good Practice Guidance All of the information can be obtained items in the Energy Sector of the for Land Use, Land-Use Change and through the Air Docket and at http:// Forestry. Prepared by the National Inventory, but are not included in www.regulations.gov (see ADDRESSES Greenhouse Gas Inventories Programme. national fuel-combustion totals to avoid section above for docket contact Penman, J., Gytarsky, M., Krug, T., this double-counting at the national information). scale.5 Kruger, D., Pipatti, R., Buendia, L., The IPCC Guidelines for National Miwa, K., Ngara, T., Tanabe, K. and D. What specific information is EPA Greenhouse Gas Inventories are relevant Wagner, F. (eds.). Published: IGES, seeking? to today’s Call for Information because Japan. As described in Section I.A, EPA is • IPCC. 2006. 2006 IPCC Guidelines they have influenced subsequent requesting two types of submissions via for National Greenhouse Gas reporting systems, such as the World this Call for Information: (1) Technical Inventories, Prepared by the National Resources Institute/World Business comments and data submissions related Greenhouse Gas Inventories Programme. Council for Sustainable Development to the accounting for GHG emissions 6 Eggleston, H.S., Buendia, L., Miwa, K., (WRI/WBCSD) protocols. Additionally, from bioenergy and other biogenic Ngara, T. and Tanabe, K. (eds.). some stakeholders have identified the sources with respect specifically to the Published: IGES, Japan. IPCC Guidelines and the Inventory as PSD and Title V Programs, and (2) more • World Resources Institute/World providing a foundational methodology general technical comments and data Business Council on Sustainable for accounting for GHG emissions from submissions related to accounting for 7 Development. 2004. A Corporate bioenergy. GHG emissions from bioenergy and Accounting and Reporting Standard. other biogenic sources without reference 4 • Letter from Mr. Daniel S. Fulton, Ibid., Reference Manual (Vol. 3), Page 1.10. to specific rulemaking efforts. 5 Emissions of methane and nitrous oxide from President and CEO, Weyerhaeuser the combustion of biomass for energy are included Corporation to Administrator Lisa P. EPA is soliciting from interested in the Energy Sector, however, because their Jackson. May 24, 2010. parties information and views on topics magnitude is dependent on the specific way in • and questions including, but not limited which the fuel is burned (i.e., combustion Response from Assistant Administrator Gina McCarthy to Mr. to the following: technology and operating conditions), which cannot • be known by analyzing the changes in the amount Fulton. June 2, 2010. Biomass under PSD/BACT. What of carbon in standing biomass. • Interim Phase I Report of the criteria might be used to consider 6 World Resources Institute/World Business Climate Change Work Group of the biomass fuels differently with regard to Council on Sustainable Development. 2004. A the Best Available Control Technology Corporate Accounting and Reporting Standard. Permits, New Source Review and Toxics Available in Docket at EPA–HQ–OAR–2010–0560. (BACT) review process under PSD? How 7 Letter from Mr. Daniel Fulton, President and Jackson, May 24, 2010. Available in Docket at EPA– could the process of determining BACT CEO, Weyerhaeuser Corporation to Administrator HQ–OAR–2010–0560. under the PSD program allow for

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adequate consideration of the impacts oil, and gas. What bases or metrics are —The number of facilities that generate and benefits of using biomass fuels? appropriate for such a comparison? or are expected to generate such • National-scale carbon neutrality in • Comparison among bioenergy emissions. the IPCC Guidelines. In the IPCC sources. EPA is also interested in —Emission factor information, accounting approach described in comments on accounting methods that particularly for the biogenic CO2 Section I.B, at the national scale might be appropriate for different types source categories of wastewater emissions from combustion for of biological feedstocks and bioenergy treatment, livestock management, and bioenergy are included in the LUCF sources. What bases or metrics are ethanol fermentation processes. Sector rather than the Energy Sector. To appropriate for such a comparison —Potential impacts on specific what extent does this approach suggest among sources? In other words, are all industries and particular facilities of that biomass consumption for energy is biological feedstocks (e.g. corn stover, various methods of accounting for ‘‘neutral’’ with respect to net fluxes of logging residues, whole trees) the same, biogenic GHG emissions. —Potential impacts of GHG emissions CO2? and how do we know? • Smaller-scale accounting • Renewable or sustainable from bioenergy and other biogenic approaches. The Clear Air Act (CAA) feedstocks. Specifically with respect to sources on other resources such as provisions typically apply at the unit, bioenergy sources (especially forest water availability and site nutrient process, or facility scale, whereas the feedstocks), if it is appropriate to make quality. —Potential impacts of GHG emissions IPCC Guidance on accounting for GHG a distinction between biomass from bioenergy and other biogenic emissions from bioenergy sources was feedstocks that are and are not classified sources on other air pollutants such as written to be applicable at the national as ‘‘renewable’’ or ‘‘sustainable,’’ what VOCs, other criteria pollutants, and scale. EPA is interested in specific indicators would be useful in particulate matter. understanding the strengths and making such a determination? limitations of applying the national- • Other biogenic sources of CO2. E. What should I consider as I prepare scale IPCC approach to assess the net Other biogenic sources of CO2 (i.e., information for EPA? impact (i.e. accounting for both sources not related to energy production You may find the following emissions and sequestration) on the and consumption) such as landfills, suggestions helpful for preparing your atmosphere of GHG emissions from manure management, wastewater comments: specific biogenic sources, facilities, treatment, livestock respiration, 1. Explain your views as clearly as fuels, or practices. To what extent is the fermentation processes in ethanol possible. accounting procedure in the IPCC production, and combustion of biogas 2. Describe any assumptions that you Guidelines applicable or sufficient for not resulting in energy production (e.g., used. such specific assessments? flaring of collected landfill gas) may be 3. Provide any technical information • Alternative accounting approaches. covered under certain provisions of the or data you used that support your Both a default assumption of carbon CAA, and guidance will be needed views. neutrality and a default assumption that about exactly how to estimate them. 4. Provide specific examples to the greenhouse gas impact of bioenergy How should these ‘‘other’’ biogenic CO2 illustrate your concerns, suggestions, is equivalent to that of fossil fuels may emission sources be considered and and recommendations. be insufficient because they quantified? In what ways are these 5. Offer alternatives, if possible, if a oversimplify a complex issue. If this is sources similar to and different from particular approach is criticized. the case, what alternative approaches or bioenergy sources? 6. Make sure to submit your additional analytical tools are available • Additional technical information. information by the deadline identified. for determining the net impact on the EPA is also interested in receiving 7. To ensure proper receipt by EPA, atmosphere of CO2 emissions associated quantitative data and qualitative identify the appropriate docket with bioenergy? Please comment information relevant to biogenic identification number in the subject line specifically on how these approaches greenhouse gas emissions, including but on the first page of your response. It address: not limited to the following topics: would also be helpful if you provided —The time interval required for —Current and projected utilization of the name, date, and Federal Register production and consumption of biomass feedstocks for energy. citation related to your comments. biological feedstocks and bioenergy —Economic, technological, and land- F. Submitting Confidential Business products. For example, the concept of management drivers for projected Information (CBI). ‘‘carbon debt’’ has been proposed as changes in biomass utilization rates. Do not submit information you are the length of time required for a —Current and projected levels of GHG claiming as CBI to EPA through http:// regrowing forest to ‘‘pay back’’ the emissions from bioenergy and other www.regulations.gov or e-mail. Clearly carbon emitted to the atmosphere biogenic sources. mark the part of the information that when biomass is burned for energy. —Economic, technological and land- you claim to be CBI. Information so —The appropriate spatial/geographic management drivers for projected marked will not be disclosed except in scale for conducting this changes in emissions. accordance with procedures set forth in determination. For example, the —Current and projected C sequestration 40 CFR part 2. For CBI information in question of spatial scale has legal rates in lands used to produce a disk or CD ROM that you mail to EPA, complications under the CAA, but bioenergy feedstocks. mark the outside of the disk or CD ROM may be relevant for some of the —Economic, technological and land- as CBI and then identify electronically suggested approaches. management drivers for projected within the disk or CD ROM the specific • Comparison with fossil energy. EPA changes in sequestration rates. information that is claimed as CBI. In is interested in approaches for assessing —The types of processes that generate addition to one complete version of the the impact on the atmosphere of or are expected to generate emissions comment that includes information emissions from bioenergy relative to from bioenergy and other biogenic claimed as CBI, a copy of the comment emissions from fossil fuels such as coal, sources. that does not contain the information

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claimed as CBI must be submitted for DATES: Applications for the 2013 critical A. What is the Clean Air Act (CAA) inclusion in the public docket. use exemption must be postmarked on authority for the critical use exemption? or before September 13, 2010. B. What is the Montreal Protocol authority Dated: July 9, 2010. for the critical use exemption? Gina McCarthy, ADDRESSES: EPA encourages users to III. How will the U.S. implement the critical Assistant Administrator, Office of Air and submit their applications electronically use exemption in 2013 and beyond? Radiation. to Jeremy Arling, Stratospheric A. What is the timing for applications for the 2013 control period? [FR Doc. 2010–17266 Filed 7–14–10; 8:45 am] Protection Division, at [email protected]. If the B. How might EPA implement the critical BILLING CODE 6560–50–P application is submitted electronically, use exemption after the 2013 control applicants must fax a signed copy of period? ENVIRONMENTAL PROTECTION Worksheet 1 to 202–343–9055 by the I. What do I need to know to respond AGENCY application deadline. Applications for to this request for applications? the methyl bromide critical use A. Who can respond to this request for [EPA–HQ–OAR–2010–0280; FRL–9173–9] exemption can also be submitted by information? mail to: U.S. Environmental Protection Protection of Stratospheric Ozone: Agency, Office of Air and Radiation, Entities interested in obtaining a Request for Methyl Bromide Critical Stratospheric Protection Division, critical use exemption must complete Use Exemption Applications for 2013 Attention Methyl Bromide Team, Mail the application form available at AGENCY: Environmental Protection Code 6205J, 1200 Pennsylvania Ave, http://www.epa.gov/ozone/mbr. The Agency (EPA). NW., Washington, DC 20460 or by application may be submitted either by a consortium representing multiple ACTION: Notice of solicitation of courier delivery (other than U.S. Post Office overnight) to: U.S. Environmental users who have similar circumstances or applications and information on by individual users who anticipate alternatives. Protection Agency, Office of Air and Radiation, Stratospheric Protection needing methyl bromide in 2013 and SUMMARY: EPA is soliciting applications Division, Attention Methyl Bromide have evaluated alternatives and as a for the critical use exemption from the Review Team, 1310 L St., NW., Room result of that evaluation, believe they phaseout of methyl bromide for 2013. 1047E, Washington, DC 20005. have no technically and economically Critical use exemptions last only one FOR FURTHER INFORMATION CONTACT: feasible alternatives. EPA encourages year. All entities interested in obtaining General Information: U.S. EPA groups of users with similar a critical use exemption for 2013 must Stratospheric Ozone Information circumstances of use to submit a single provide EPA with technical and Hotline, 1–800–296–1996; also http:// application (for example, any number of economic information to support a www.epa.gov/ozone/mbr. pre-plant users with similar soil, pest, ‘‘critical use’’ claim and must do so by Technical Information: Bill Chism, and climactic conditions can join the deadline specified in this notice U.S. Environmental Protection Agency, together to submit a single application). even if they have applied for an Office of Pesticide Programs (7503P), In some instances, state agencies will exemption in a previous year. Today’s 1200 Pennsylvania Ave., NW., assist users with the application process notice also invites interested parties to Washington, DC 20460, 703–308–8136. (see discussion of voluntary state involvement in Part I.B. below). provide EPA with new data on the E-mail: [email protected]. In addition to requesting information technical and economic feasibility of Regulatory Information: Jeremy Arling, U.S. Environmental Protection from applicants for the critical use methyl bromide alternatives. The U.S. exemption, this solicitation for critical use exemption program has Agency, Stratospheric Protection Division (6205J), 1200 Pennsylvania information provides an opportunity for cushioned the U.S. transition in an any interested party to provide EPA important way. Thus far, EPA has Ave., NW., Washington, DC 20460, 202– 343–9055. E-mail: with information on methyl bromide allocated critical use methyl bromide alternatives (e.g., technical and/or [email protected]. through rulemaking for each of the six economic feasibility research). years (2005–2010) since the U.S. SUPPLEMENTARY INFORMATION: phaseout, and plans to do so for another B. Who can I contact to find out whether four years (2011–2014). Critical use Table of Contents a consortium is submitting an nominations must be approved each I. What do I need to know to respond to this application for my methyl bromide use? year at the international level by the request for applications? You should contact your local, state, Parties to the Montreal Protocol, and the A. Who can respond to this request for regional, or national commodity U.S. is one of five remaining developed information? association to find out whether it plans countries requesting such exemptions; B. Who can I contact to find out if a to submit an application on behalf of several of these countries have consortium is submitting an application form for my methyl bromide use? your commodity group. announced final dates for all or part of C. How do I obtain an application form for Additionally, you should contact your their requests in the years between now the methyl bromide critical use state regulatory agency (generally this and 2015, the year that developing exemption? will be the state’s agriculture or countries are required to phase out D. What alternatives must applicants environmental protection agency) to methyl bromide. While EPA with this address when applying for a critical use receive information about its notice is seeking applications for 2013 exemption? involvement in the process. If your state and will likely request applications for E. What portions of the applications will be agency has chosen to participate, EPA 2014, EPA believes it is appropriate at considered confidential business recommends that you first submit your this time to consider a year in which the information? application to the state agency, which F. What if I submit an incomplete Agency will stop requesting application? will then forward applications to EPA. applications for critical use exemptions. G. What if I applied for a critical use The National Pesticide Information EPA will seek comment on this issue in exemption in a previous year? Center Web site identifies the lead the proposed rule for the 2011 critical II. What is the legal authority for the critical pesticide agency in each state (http:// use exemption. use exemption? npic.orst.edu/state1.htm).

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C. How do I obtain an application form confidential.’’ You should clearly to submit revised copies of the for the methyl bromide critical use identify the allegedly confidential Worksheets listed below, though the exemption? portions of otherwise non-confidential entire application with all Worksheets An application form for the methyl documents, and you may submit them must be on file with EPA. You must bromide critical use exemption can be separately to facilitate identification and submit Worksheets 1, 2B, 2C, 2D, 4, 5, handling by EPA. If you desire obtained either in electronic or hard- and 6 in full regardless of whether you confidential treatment only until a submitted an application in 2009. You copy form. EPA encourages use of the certain date or until the occurrence of a need only complete the remaining electronic form. Applications can be certain event, your notice should state worksheets if any information has obtained in the following ways: that. Information covered by a claim of changed since 2009. If you submitted a 1. PDF format and Microsoft Excel at confidentiality will be disclosed by EPA critical use exemption application to EPA’s Web site: http://www.epa.gov/ only to the extent, and by means of the EPA in 2002 through 2008 but did not ozone/mbr/cueinfo.html; procedures, set forth under 40 CFR part submit an application in 2009, then you 2. Hard copy ordered through the 2 subpart B; 41 FR 36752, 43 FR 40000, must submit all of the worksheets in the Stratospheric Ozone Protection Hotline 50 FR 51661. If no claim of application again in their entirety. at 1–800–296–1996; confidentiality accompanies the II. What is the legal authority for the 3. Hard-copy format at DOCKET ID information when EPA receives it, EPA critical use exemption? No. EPA–HQ–OAR–2010–0280. The may make it available to the public docket can be accessed at the http:// without further notice. A. What is the Clean Air Act (CAA) www.regulations.gov site. To obtain If you are asserting a business authority for the critical use exemption? copies of materials in hard copy, please confidentiality claim covering part or all In October 1998, Congress amended e-mail the EPA Docket Center: a-and-r- of the information in the application, [email protected]. the Clean Air Act to require EPA to please submit a non-confidential conform the U.S. phaseout schedule for D. Which alternatives must applicants version that EPA can place in the public methyl bromide to the provisions of the address when applying for a critical use docket for reference by other interested Montreal Protocol for industrialized exemption? parties. Do not include on the countries and to allow EPA to provide ‘‘Worksheet Six: Application Summary’’ To support the assertion that a a critical use exemption. These page of the application any information amendments were codified in Section specific use of methyl bromide is that you wish to claim as confidential ‘‘critical,’’ applicants are expected to 604 of the Clean Air Act, 42 U.S.C. business information. Any information 7671c. Under EPA implementing demonstrate that there are no on Worksheet 6 shall not be considered technically and economically feasible regulations, methyl bromide production confidential and will not be treated as and consumption were phased out as of alternatives available for that use. The such by the Agency. EPA will place a Parties to the Montreal Protocol have January 1, 2005. Section 604(d)(6), as copy of Worksheet 6 in the public added in 1998, allows EPA to exempt developed an ‘‘International Index’’ of domain. Please note, claiming business methyl bromide alternatives, which lists the production and import of methyl confidentiality may delay EPA’s ability bromide from the phaseout for critical chemical and non-chemical alternatives to review your application. by crop. In 2009, the United States uses, to the extent consistent with the submitted an index of alternatives, F. What if I submit an incomplete Montreal Protocol. which includes the current registration application? B. What is the Montreal Protocol status of available and potential EPA will not accept any applications authority for the critical use exemption? alternatives, that is available on the postmarked after September 13, 2010. If The Montreal Protocol provides that Ozone Secretariat Web site: http:// the application is postmarked by the the Parties may exempt ‘‘the level of ozone.unep.org/ deadline but is incomplete or missing _ _ _ production or consumption that is Exemption Information/Critical use any data elements, EPA will not accept necessary to satisfy uses agreed by them nominations_for_methyl_bromide/ the application and will not include the _ to be critical uses’’ (Art. 2H para 5). The methyl bromide Submissions/USA- application in the U.S. nomination Parties to the Protocol included this Alternatives-Ex4-1-2008.pdf. submitted for international language in the treaty’s methyl bromide Applicants must address technical, consideration. If the application is phaseout provisions in recognition that regulatory, and economic issues that substantially complete with only minor alternatives might not be available by limit the adoption of ‘‘chemical errors, corrections will be accepted. EPA 2005 for certain uses of methyl bromide alternatives’’ and combinations of reviewers may also call an applicant for agreed by the Parties to be ‘‘critical ‘‘chemical’’ and ‘‘non-chemical further clarification of an application, uses.’’ alternatives’’ listed for their crop or use even if it is complete. In their Ninth Meeting (1997), the within the ‘‘U.S. Index’’ of Methyl All consortia or users who did not Parties to the Protocol agreed to Bromide Alternatives. apply to EPA for the 2009 control period Decision IX/6, setting forth the E. What portions of the applications will (calendar year 2009) must submit an following criteria for a ‘‘critical use’’ be considered confidential business entire completed application with all determination and an exemption from information? Worksheets. the production and consumption phaseout: You may assert a business G. What if I applied for a critical use exemption in a previous year? (a) That a use of methyl bromide confidentiality claim covering part or all should qualify as ‘‘critical’’ only if the of the information by placing on (or Critical use exemptions are valid for nominating Party determines that: attaching to) the information, at the time only one year and do not renew it is submitted to EPA, a cover sheet, automatically. Users desiring to obtain (i) The specific use is critical because the lack of availability of methyl bromide for that stamped or typed legend, or other an exemption for 2013 must apply to use would result in a significant market suitable form of notice employing EPA. However, if a user group disruption; and language such as ‘‘trade secret,’’ submitted a complete application to (ii) There are no technically and ‘‘proprietary,’’ or ‘‘company EPA in 2009, the user is only required economically feasible alternatives or

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substitutes available to the user that are Department of Agriculture, and other this notice. However, the international acceptable from the standpoint of interested Federal agencies) prepares context for consideration of critical use environment and health and are suitable to U.S. Critical Use Nomination package. exemption requests from developed the crops and circumstances of the January 24, 2011: Deadline for U.S. country Parties is an important nomination. Government to submit U.S. nomination consideration for the program’s future, (b) That production and consumption, package to the Protocol Parties. since annual approval by the Parties is if any, of methyl bromide for a critical Early 2011: Technical and Economic required for any additional production use should be permitted only if: Assessment Panel (TEAP) and Methyl and consumption of otherwise banned (i) All technically and economically Bromide Technical Options Committee ozone depleting substances. In 2006, feasible steps have been taken to minimize (MBTOC) reviews Parties’ nominations there were 20 countries with approved the critical use and any associated emission for critical use exemptions. CUEs. In 2010, that number has of methyl bromide; Mid 2011: Parties consider TEAP/ decreased to five: the United States, (ii) Methyl bromide is not available in MBTOC recommendations. Australia, Canada, Israel, and Japan. sufficient quantity and quality from existing November 2011: Parties decide Israel has announced that 2011 will be stocks of banked or recycled methyl bromide, whether to authorize critical use its last year of CUE methyl bromide use also bearing in mind the developing exemptions for methyl bromide for and Japan has indicated that 2013 will countries’ need for methyl bromide; production and consumption in 2013. (iii) It is demonstrated that an appropriate be the last year for which it will seek a Mid 2012: EPA publishes proposed critical use exemption authorization for effort is being made to evaluate, rule for allocating critical use commercialize and secure national regulatory soil fumigation. Australia and Canada approval of alternatives and substitutes, exemptions in the U.S. for 2013. each use only 1 percent of CUE MeBr. taking into consideration the circumstances Late 2012: EPA publishes final rule Further, developing countries face of the particular nomination. * * * Non- allocating critical use exemptions in the their own phaseout deadline for methyl Article 5 Parties [e.g., developed countries, U.S. for 2013. bromide under the Montreal Protocol in January 1, 2013: Critical use including the U.S.] must demonstrate that 2015. While the Protocol contains a research programs are in place to develop exemption permits the limited provision allowing the Parties to permit and deploy alternatives and substitutes. production and import of methyl critical use exemptions for developing *** bromide for specified uses for the 2013 countries, the extent to which control period. EPA has defined ‘‘critical use’’ in its developing countries will request such regulations at 40 CFR 82.3 in a manner B. How might EPA implement the exemptions is not yet known. By 2008, similar to Decision IX/6 paragraph (a). critical use exemption after the 2013 the last year for which data are III. How will the U.S. implement the control period? available, developing countries had critical use exemption in 2013 and U.S. consumption of methyl bromide already reduced methyl bromide beyond? in the U.S. has declined significantly consumption for soil and post-harvest uses by 66% relative to their baselines. EPA regulations at 40 CFR 82.4 over the last 20 years. Production and Furthermore, of the 86 developing prohibit the production and import of import was phased out in 2005 in the countries that have baselines, only 34 methyl bromide in excess of the amount U.S. and all other developed countries continued to use methyl bromide as of of unexpended critical use allowances under the Montreal Protocol. Since then, consumption by developed 2008. held by the producer or importer, unless Given this international context and authorized under a separate exemption. country Parties has been subject to limited annual exceptions for critical that the critical use exemption process Methyl bromide produced or imported for a particular control period takes by expending critical use allowances uses, which have declined steadily from year to year. In 1991, the baseline year, three years, as shown in the schedule in may be used only for the appropriate Section III.A above, EPA believes it is category of approved critical uses as the U.S. consumption was approximately 25,500 metric tons of appropriate at this time to consider a listed in Appendix L to the regulations year in which the U.S. Government will (40 CFR 82.4(p)(2)). The use of methyl methyl bromide. In 2010, the amount authorized for critical uses declined to stop requesting applications for critical bromide that was produced or imported use exemptions. EPA is not making a through the expenditure of production approximately 3,000 metric tons; for 2012, the U.S. nominated only final decision at this time whether to or consumption allowances prior to accept applications for subsequent 2005 is not confined to critical uses approximately 1,200 metric tons. This transition from methyl bromide— control periods. EPA will seek comment under EPA’s phaseout regulations; on this issue in the proposed rule for the however, other restrictions may apply. formerly one of the most commonly used pesticides in the U.S.—to ozone- 2011 critical use exemption. A. What is the timing for applications safe alternatives has been a remarkable Authority: 42 U.S.C. 7414, 7601, 7671– for the 2013 control period? achievement for U.S. agriculture. 7671q. There is both a domestic and The critical use exemption program Dated: July 1, 2010. international component to the critical has, thus far, provided U.S. Gina McCarthy, use exemption process. The following manufacturers and growers six Assistant Administrator, Office of Air and outline projects a timeline for the additional years (2005–2010) beyond Radiation. process for the 2013 critical use the January 1, 2005, phaseout date to [FR Doc. 2010–17151 Filed 7–14–10; 8:45 am] exemption. develop and market alternatives and BILLING CODE 6560–50–P July 15, 2010: Solicit applications for implement practices that reduce the the methyl bromide critical use need for fumigants in general. The exemption for 2013. Parties have already approved a U.S. FEDERAL ELECTION COMMISSION September 13, 2010: Deadline for critical use amount for 2011, and the submitting critical use exemption U.S. submitted a nomination for 2012 Sunshine Act Notices applications to EPA. this January. EPA expects that the U.S. Fall 2010: U.S. Government (through will submit a nomination for 2013 based DATE AND TIME: Wednesday, July 14, EPA, Department of State, U.S. on applications received in response to 2010, at 10 a.m.

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PLACE: 999 E Street, NW., Washington, SUMMARY: Section 1323(a)(1) of the the data fields to long-standing PUDB DC. Federal Housing Enterprises Financial data reporting practice, to provide STATUS: This meeting will be closed to Safety and Soundness Act of 1992 greater clarity, or to conform to the new the public. (Safety and Soundness Act), as statutory requirements. The Notice of amended, requires the Federal Housing Order sets forth FHFA’s Order with ITEMS TO BE DISCUSSED: Compliance accompanying Appendix containing the matters pursuant to 2 U.S.C. 437g. Finance Agency (FHFA) to make available to the public the non- revised matrices, and describes the Audits conducted pursuant to 2 U.S.C. proprietary single-family and changes made to the data fields in the 437g, 438(b), and Title 26, U.S.C. multifamily loan-level mortgage data matrices. Changes to the PUDB matrices Matters concerning participation in civil elements submitted to FHFA by the required by HERA relating to high-cost actions or proceedings or arbitration. Federal National Mortgage Association securitized loans, as well as the Internal personnel rules and procedures (Fannie Mae) and the Federal Home Enterprise housing goals for 2010 and or matters affecting a particular Loan Mortgage Corporation (Freddie beyond, will be implemented by the employee. Mac) (collectively, the Enterprises) in issuance of subsequent Orders. * * * * * their mortgage reports required under DATES: Effective Date of the Order: The DATE AND TIME: Thursday, July 15, 2010, their charter acts. This responsibility to Order with accompanying Appendix is at 10 a.m. maintain a public use database (PUDB) effective on July 1, 2010. PLACE: 999 E Street, NW., Washington, for such mortgage data was transferred FOR FURTHER INFORMATION CONTACT: For DC (ninth floor). to FHFA from the U.S. Department of questions on data or methodology, STATUS: This meeting will be open to the Housing and Urban Development (HUD) contact Paul Manchester, Principal public. pursuant to sections 1122, 1126 and Economist, Office of Housing Mission 1127 of the Housing and Economic ITEMS TO BE DISCUSSED: Correction and and Goals, Quantitative Analysis and Recovery Act of 2008 (HERA), and was Goals, 1625 Eye Street, NW., Approval of Minutes. expanded to include data elements Draft Advisory Opinion 2010–09: Washington, DC 20006, (202) 408–2946, required to be reported under the Home [email protected]; or Ian Keith, Club for Growth, by its counsel, Carol A. Mortgage Disclosure Act of 1975 Laham, Esq., and D. Mark Renaud, Esq., Program Analyst, 1625 Eye Street, NW., (HMDA). Washington, DC 20006, (202) 408–2949, of Wiley Rein LLP. Specifically, section 1126 of HERA Draft Advisory Opinion 2010–10: [email protected]. For legal questions, amended section 1323 of the Safety and contact Sharon Like, Associate General National Right to Life Political Action Soundness Act by requiring that the Committee, by its counsel, Barry A. Counsel, OGC–Housing Mission and Enterprises’ mortgage reports include Goals, 1700 G Street, NW., Washington, Bostrom, Esq., James Bopp, Jr., Esq., and the data elements required to be Zachary S. Kester, Esq., of Bopp, DC 20552, (202) 414–8950, reported under HMDA at the census [email protected]. (These are not Coleson & Bostrom. tract level, and that such data elements toll-free numbers.) The telephone Draft Advisory Opinion 2010–11: be disclosed to the public. In addition, number for the Telecommunications Commonsense Ten, by its counsel, Marc section 1127 of HERA amended section Device for the Hearing Impaired is E. Elias, Esq., and Ezra Reese, Esq., of 1326 of the Safety and Soundness Act (800) 877–8339. Perkins Coie LLP. by requiring that, subject to privacy SUPPLEMENTARY INFORMATION: Management and Administrative considerations as described in section Matters. 304(j) of HMDA, the Director of FHFA I. Background Individuals who plan to attend and shall, by regulation or order, provide A. Establishment of FHFA require special assistance, such as sign that certain information relating to language interpretation or other single-family mortgage data of the Effective July 30, 2008, Division A of reasonable accommodations, should Enterprises shall be disclosed to the HERA, Public Law 110–289, 122 Stat. contact Darlene Harris, Deputy public in order to make available to the 2654 (2008), amended the Safety and Commission Secretary, at (202) 694– public—(1) the same data from the Soundness Act and created FHFA as an 1040, at least 72 hours prior to the Enterprises that is required of insured independent agency of the Federal hearing date. depository institutions under HMDA; Government. HERA transferred the PERSON TO CONTACT FOR INFORMATION: and (2) information collected by the safety and soundness supervisory and Judith Ingram, Press Officer; Telephone: Director of FHFA under section oversight responsibilities over the (202) 694–1220. 1324(b)(6) of the Safety and Soundness Enterprises, the Federal Home Loan Act, as amended, for the purpose of Banks (Banks), and the Office of Finance Shawn Woodhead Werth, comparing the characteristics of high- from the Office of Federal Housing Secretary and Clerk of the Commission. cost securitized loans. Enterprise Oversight (OFHEO) and the [FR Doc. 2010–17052 Filed 7–14–10; 8:45 am] FHFA provided each Enterprise with Federal Housing Finance Board, BILLING CODE 6715–01–M an opportunity to review and comment respectively, to FHFA. HERA also on FHFA’s proposed revisions to the transferred the charter compliance single-family and multifamily PUDB authority, the responsibility to establish, FEDERAL HOUSING FINANCE matrices which describe the data fields monitor and enforce the affordable AGENCY provided in the PUDB. FHFA has taken housing goals, the responsibility to the Enterprises’ comments into maintain the PUDB, and the [No. 2010–N–10] consideration, and has adopted an responsibility to oversee Enterprise data Order that implements certain changes reporting, from HUD to FHFA. Notice of Order: Revisions to required by HERA to the Enterprises’ FHFA is responsible for ensuring that Enterprise Public Use Database mortgage loan data reporting and the the Enterprises operate in a safe and AGENCY: Federal Housing Finance disclosure of such data in the PUDB. sound manner, including maintenance Agency. The Order also makes technical changes of adequate capital and internal to the single-family and multifamily controls, that their operations and ACTION: Notice of order. data matrices of the PUDB to conform activities foster liquid, efficient,

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competitive, and resilient national elements that the Enterprises are mortgage; (B) the loan-to-value ratio of housing finance markets, and that they currently collecting as part of their the mortgage, which shall reflect any carry out their public policy missions established mortgage-purchasing secondary liens on the relevant through authorized activities. See 12 activities. Section 1323(a) does not property; (C) the terms of the mortgage; U.S.C. 4513. contain a mandate that the Enterprises (D) the creditworthiness of the The Enterprises are government- modify their seller-servicer agreements borrower; and (E) any other relevant sponsored enterprises (GSEs) chartered to collect additional data solely for the data, as determined by the Director.’’ by Congress for the purpose of purpose of populating the PUDB. While FHFA is continuing to assess the establishing secondary market facilities it might be within the scope of statutory mortgage data elements that are needed for residential mortgages. See 12 U.S.C. discretion for the agency to administer to implement section 1324(b)(6), and 1716 et seq.; 12 U.S.C. 1451 et seq. this provision in that way, the will issue a subsequent Order, Specifically, Congress established the Enterprises are currently operating in applicable to the PUDB for 2009, that Enterprises to provide stability in the conservatorship and it would not implements this section after it has secondary market for residential further the purposes of their completed its analysis.2 mortgages, respond appropriately to the conservatorship to do so. Section 1323, as amended, also private capital market, provide ongoing Section 1323(b)(1) states that, except includes a new paragraph (d) which assistance to the secondary market for as provided in paragraph (b)(2), the states that data submitted under this residential mortgages, and promote Director may not make available to the section by an Enterprise shall be made access to mortgage credit throughout the public Enterprise data that the Director publicly available no later than nation. Id. determines under section 1326 are September 30 of the year following the On September 6, 2008, the Director of proprietary. Section 1323(b)(2), as year to which the data relates. 12 U.S.C. FHFA appointed FHFA as conservator amended, provides that the Director 4543(d).3 of the Enterprises in accordance with shall not restrict public access to the C. Description of Enterprise Reporting the Safety and Soundness Act, as data in the Enterprise reports related to and PUDB Matrices amended by HERA, to maintain the income, census tract location, race, and Enterprises in a safe and sound financial gender of single-family mortgagors, or to From 1993 to 2005, HUD took a condition and to help assure the data required to be reported under number of regulatory and administrative performance of their public mission. HMDA at the census tract level. See 12 actions to establish and maintain a The Enterprises remain under U.S.C. 4543(b)(1), 4543(b)(2), 4546. PUDB, and to withhold from disclosure conservatorship at this time. Consistent with the amendments to in the PUDB certain Enterprise mortgage data that HUD had determined to be B. Statutory Requirements section 1323, section 1127 of HERA amended section 1326 of the Safety and proprietary information and to release to Section 1323(a)(1) of the Safety and Soundness Act by adding a new the public Enterprise mortgage data that Soundness Act, as amended, 12 U.S.C. paragraph (d) which states that, subject HUD had determined to be non- 4543(a)(1), requires the Director of to the privacy restrictions described in proprietary. FHFA’s revisions discussed FHFA (Director) to make available to the section 304(j) of HMDA,1 the Director in this Notice of Order have been made public the non-proprietary data shall make public certain information to the PUDB matrices as set forth in submitted by Fannie Mae and Freddie relating to single-family mortgage data HUD’s October 4, 2004 Final Order. See Mac in their mortgage reports required of the Enterprises: (1) the same data 69 FR 59476. The PUDB matrices are under section 309(m) of the Federal from the Enterprises that is required of data dictionaries, attached as an National Mortgage Association Charter insured depository institutions under Appendix to this Notice of Order, which Act, as amended, 12 U.S.C. 1723a(m), HMDA; and (2) information collected by describe the data fields provided in the and section 307(e) of the Federal Home the Director under section 1324(b)(6). public release of the data in the PUDB. Loan Mortgage Corporation Act, as See 12 U.S.C. 4544(b)(6), 4546(d). The PUDB contains Enterprise single- amended, 12 U.S.C. 1456(e), Section 1324(b)(6), in turn, part of a family and multifamily mortgage loan- respectively (hereafter, Charter Acts). section describing the contents of level data, including data elements that The Enterprises are required to collect, FHFA’s Annual Housing Activities have been determined to lose their maintain and provide to FHFA in these Report (AHAR) to Congress, requires proprietary character when categorized mortgage reports data relating to their FHFA to compare ‘‘the characteristics of in ranges or otherwise adjusted or single-family and multifamily mortgage high-cost loans purchased and recoded. For single-family mortgage purchases (e.g., income, census tract securitized by each Enterprise where data, there are three separate files: a location, race and gender of mortgagors). such securities are not held on portfolio, Census Tract File that identifies the The responsibility to maintain a PUDB to loans purchased and securitized census tract location of the mortgaged for mortgage data was transferred from where such securities are either retained properties; a National File A containing HUD to FHFA pursuant to sections on portfolio or repurchased by the loan-level data on owner-occupied one- 1122, 1126, and 1127 of HERA. Enterprise, including such unit properties but without census tract Section 1126 of HERA also amended characteristics as—(A) The purchase identifiers; and a National File B section 1323 of the Safety and price of the property that secures the containing unit-level data on all single- Soundness Act by adding a new family properties without census tract paragraph (a)(2) which requires that 1 Section 304(j) of HMDA addresses Loan such data submitted by the Enterprises Application Register (LAR) information and 2 HERA also revised the Enterprises’ housing in their mortgage reports shall include describes, among other things, the manner in which goals for 2010 and subsequent years. FHFA will an applicant’s privacy interests are to be protected issue a subsequent Order, applicable to the PUDB the data elements required to be in response to a request for disclosure from the for 2010, that revises the applicable data fields in reported under HMDA, 12 U.S.C. 2801 public, including removal of the applicant’s name the PUDB matrices to reflect HERA’s changes to the et seq., at the census tract level. 12 and identification number, the date of the Enterprise housing goals. U.S.C. 4543(a)(2). FHFA construes this application, and the date of any determination by 3 The release of the 2008 PUDB was delayed due the institution with respect to such application. In to the transfer of authority to release the data to the language in section 1323(a)(2) to require addition, the disclosure of information must ensure public from HUD to FHFA and technical and the Enterprises to submit for inclusion that depository institutions are protected from operational issues raised by the new HERA data in the PUDB HMDA mortgage data liability under any Federal or State privacy laws. reporting requirements.

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identifiers. For multifamily data, there fields that FHFA originally considered FHFA has added the following new are two separate files: a Census Tract including in the PUDB, but which it has data fields in the PUDB matrices for File that identifies the census tract subsequently decided to omit, are HMDA data elements that are currently location of the mortgaged properties; discussed in Section V. collected and reported by the and a National File that does not Enterprises but which had not III. Summary of Order’s Treatment of identify the location of the mortgaged previously been included in the PUDB: HMDA and Other Data Elements in the properties but contains mortgage-level single-family rate spread; single-family PUDB data and unit class-level data on all HOEPA status; and multifamily lien multifamily properties. Following is a summary of the status (previously reported by Freddie II. Proposed Revisions to the PUDB changes made to the PUDB matrices to Mac only). FHFA has also added a new data field Matrices conform to the HMDA data elements, and other technical changes made to for single-family property type, which is To determine the appropriate data elements in the PUDB matrices, as currently collected but which had not treatment of the newly required data provided in FHFA’s Order. The changes previously been reported by the elements for purposes of the PUDB, take into account FHFA’s analysis of the Enterprises. FHFA asked each Enterprise to indicate applicable statutory provisions and C. HMDA Data Elements Not whether it is collecting the following FHFA’s determinations with respect to mortgage purchase data and, if so, to Incorporated in the PUDB Pursuant to the Enterprises’ comments on the HMDA Section 304(j) provide such data to FHFA for inclusion proposed revisions to the matrices. A in the PUDB: (1) Single-family property more detailed discussion of the changes Consistent with section 304(j) of type; (2) multifamily lien status; (3) is contained in Section IV. below. HMDA, the PUDB does not disclose multifamily borrower race or national personally identifiable information (PII) origin 1–5; (4) multifamily co-borrower A. Expanded Values or Changes in contained in loan data reported by the race or national origin 1–5; (5) Descriptions of Data Fields in the PUDB Enterprises to FHFA. FHFA does not multifamily borrower ethnicity; (6) Matrices receive the applicant’s name, multifamily co-borrower ethnicity; (7) To conform to HMDA reporting identification number, or date of loan multifamily borrower gender; (8) requirements, FHFA has expanded the application from the Enterprises. FHFA multifamily co-borrower gender; (9) values (i.e., codes) or changed the does receive the date of the mortgage multifamily rate spread; and (10) descriptions of the following data fields note, which is equivalent to the HMDA multifamily HOEPA status.4 In response in the PUDB matrices: single-family and ‘‘action date’’ for an originated loan, but to FHFA’s request, the Enterprises multifamily Enterprise flag; single- FHFA does not release this information provided FHFA with single-family family and multifamily purpose of loan; in the PUDB files with the exception of property type and multifamily lien single-family National File B where it is status data. The Enterprises did not and single-family and multifamily Federal guarantee. released in data field 20 in an provide the other information requested, aggregated form to protect PII. which they stated they do not collect. B. New Data Fields in the PUDB FHFA also provided both Enterprises Matrices D. HMDA Data Elements Not with an opportunity to review and Incorporated in the PUDB as comment on FHFA’s proposed revisions As discussed above, FHFA construes Inapplicable to the single-family and multifamily section 1323(a)(2) to require the The following HMDA data elements PUDB matrices. In addition, FHFA Enterprises to submit for inclusion in have not been incorporated in the PUDB stated that it would consider any the PUDB HMDA mortgage data because they are inapplicable to assertions by the Enterprises that the elements that the Enterprises are Enterprise mortgage purchases: as of release of a specific data field would currently collecting. Accordingly, FHFA year; preapproval; action type; result in the release of their proprietary has added new data fields for these purchaser type; denial reason 1–3; edit data, and would make a determination HMDA data elements as separate data status; application date prior 2004 flag; on this matter in accordance with fields in the PUDB matrices. In addition, multifamily occupancy; and multifamily applicable statutory and regulatory as previously noted, FHFA currently is type of property. requirements. However, data fields that reviewing the data reporting are required to be reported under requirements in connection with the E. Technical Revisions to Data Elements HMDA at the census tract level, high-cost securitized loans analysis that in the PUDB Matrices pursuant to section 1323(a)(2) of the the Director is required to conduct, and FHFA has made technical revisions to Safety and Soundness Act, as amended, upon completion of that review, will the following data fields in the PUDB are not subject to regulatory and issue a new Order requiring the matrices to conform the data fields to statutory processes for proprietary Enterprises to submit such data, as long-standing PUDB data reporting determinations that might otherwise specified by FHFA, for inclusion in the practice or provide greater clarity: loan apply to the release of such data since PUDB for 2009. number; MSA code; county-2000 the disclosure of these data is explicitly Specifically, FHFA has added the census; census tract-2000 Census; 2000 required by statute. following new data fields in the PUDB census tract-percent minority; 2000 Both Enterprises provided comments matrices for HMDA data elements that census tract-median income; 2000 local on a number of the proposed data field are currently collected and reported by area median income; area median family revisions, which are discussed in the Enterprises but which had been income; borrower income ratio; ‘‘special Sections IV. and V. below under the coded differently in the PUDB: single- affordable, seasoned loan: are proceeds applicable data fields. Certain data family borrower race or national origin recycled?’’; single-family Federal 1–5; single-family co-borrower race or guarantee; type of seller institution; and 4 A HOEPA mortgage is a mortgage covered by national origin 1–5; single-family acquisition type. section 103(aa) of the Home Ownership Equity Protection Act (HOEPA) (15 U.S.C. 1602(aa)), as borrower ethnicity; single-family co- FHFA has made technical revisions to implemented by the Board of Governors of the borrower ethnicity; and single-family the following data fields and references Federal Reserve System. lien status. in the PUDB matrices to conform to the

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new statutory requirements: borrower’s originating lender’s regulatory agency codes in this data field in the (or borrowers’) annual income; and code). multifamily Census Tract File to reflect single-family and multifamily 2. Single-family Data Field 22: Purpose HMDA’s additional purpose of loan acquisition unpaid principal balance of Loan codes (see the expanded codes in the (UPB). multifamily matrix in the Appendix), This data field designates the purpose while recoding non-HMDA values as F. Proposed Data Elements Not Included of the mortgage acquired by the ‘‘not applicable/not available/other’’ for in the PUDB Enterprise (e.g., purchase, refinancing, the multifamily Census Tract File. The following data elements are not rehabilitation). HMDA requires the currently collected by the Enterprises, reporting of the purpose of a mortgage, Fannie Mae commented that and FHFA is not requiring that they be with one of the purpose codes being for multifamily loan purpose currently is collected and reported for inclusion in home improvement loans. Data field 22 collected through one of four the PUDB: multifamily borrower and co- included a code for ‘‘rehabilitation’’ acquisition systems, depending on the borrower race or national origin; loans, which FHFA believes are transaction structure (e.g., acquisition, multifamily borrower and co-borrower substantially equivalent to home refinance, equity, and conversion). ethnicity; multifamily borrower and co- improvement loans. Accordingly, to Fannie Mae indicated that when it borrower gender; multifamily rate conform to HMDA reporting delivers this information to FHFA, it spread; multifamily HOEPA status; requirements, FHFA has changed the identifies the loan purpose as purchase, respondent ID; and agency code. code name in this data field from refinance, new construction, ‘‘rehabilitation’’ loan to ‘‘home rehabilitation or not applicable/not IV. Discussion of Revisions to PUDB ’’ improvement/rehabilitation loan. In available based on the loan purpose Matrices addition, to conform to HMDA reporting provided by the seller, special feature requirements, FHFA has added codes in To implement the HERA amendments codes, and other information. Fannie to sections 1323 and 1326 of the Safety this data field in the single-family Census Tract File to reflect HMDA’s Mae stated that this process of reporting and Soundness Act, FHFA has adopted additional purpose of loan codes. (See the multifamily ‘‘purpose of loan’’ data an Order that revises the PUDB matrices the expanded codes in the single-family might cause some confusion for users to incorporate the HMDA data elements matrix in the Appendix.) FHFA has trying to align the HMDA data with the as applicable and requires the preserved the prior PUDB recoding in PUDB data. Accordingly, users of the Enterprises to submit data in accordance this data field in the single-family PUDB and HMDA data should be aware with the revised matrices. The Order National File B. FHFA also has of the potential reporting discrepancy in also makes a number of technical expanded the codes in this data field to the purpose of loan data field in these revisions to existing data fields in the enable the Enterprises to report second two databases. PUDB matrices to conform the data mortgages and home improvement/ fields to long-standing PUDB data rehabilitation mortgages as purchase 4. Single-family Data Field 27 and reporting practice, to provide greater money mortgages where applicable, Multifamily Data Field 34: Federal clarity, or to conform to the new which allow the Enterprises to claim Guarantee statutory requirements. The revised appropriate credit under the 2005–2009 matrices are included in an Appendix to This data field identifies the source of home purchase subgoals. Second the Federal guarantee or insurance of the Order. Both the Order and Appendix mortgages and home improvement/ the loan acquired by the Enterprise. are set forth at the end of this Notice of rehabilitation mortgages identified as Since 2001, the Enterprises have been Order. Single-family and multifamily purchase money mortgages will be reporting loans insured or guaranteed by PUDB Data Dictionaries that further coded as ‘‘1=purchase’’ for the PUDB. describe the data fields will be made Fannie Mae asked whether a mortgage the Federal Housing Administration, available on FHFA’s public Web site at with a ‘‘value of 4’’ = home Department of Veterans Affairs, and http://www.fhfa.gov/ improvement/rehabilitation (purchase Rural Housing Service using an Default.aspx?Page=137. mortgage) under the ‘‘purpose of loan’’ expanded set of values. To conform to FHFA’s changes to the single-family data field would be disclosed in the HMDA reporting requirements, FHFA and multifamily matrices are further PUDB as a ‘‘1 = purchase’’, or a ‘‘4 = has expanded the codes in the single- described below. home improvement/rehabilitation’’ family and multifamily Census Tract A. Expanded Values or Changed mortgage. FHFA is clarifying in this Files to reflect HMDA’s additional Descriptions Notice of Order that a mortgage with a Federal loan guarantee or insurance ‘‘value of 4’’ will be disclosed in the sources. (See the expanded codes in the To conform to HMDA reporting PUDB as a ‘‘purchase’’ mortgage in the single-family and multifamily matrices requirements, FHFA has expanded the single-family files. in the Appendix.) For single-family values (or codes) or changed the National File A, single-family National descriptions of certain data fields in the 3. Multifamily Data Field 21: Purpose of Loan File B, and the multifamily National PUDB matrices, as further discussed File, FHFA has preserved the prior below. This data field designates the purpose PUDB recoding. The description for data of the mortgage acquired by the 1. Single-family and Multifamily Data field 34 in the multifamily matrix has Enterprise (e.g., purchase, refinancing, Field 0: Enterprise Flag also been changed from ‘‘Government rehabilitation). For the reasons ’’ ‘‘ ’’ This data field designates whether the discussed above for single-family data Insurance to Federal Guarantee to be mortgage was purchased by Fannie Mae field 22, FHFA has changed the consistent with the description in data or Freddie Mac. FHFA has changed the ‘‘rehabilitation’’ loan purpose code in field 27 of the single-family matrix. A name of this data field from ‘‘agency this data field in the multifamily matrix technical revision has also been made to flag’’ to ‘‘Enterprise flag’’ to avoid to ‘‘home improvement/rehabilitation’’ this data field, as discussed under confusing this data field with HMDA’s loan. To conform to HMDA reporting Section IV.E. below. ‘‘agency code’’ data field (which is the requirements, FHFA has also added

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B. New Data Fields (i.e., no indication of race or ethnicity files, and not as a separate data field. provided). The Enterprises did not comment on 1. Data Elements Currently Collected this data field. and Reported But Previously Coded b. Single-family Data Field 41f: To conform to HMDA reporting Differently in the PUDB Borrower Ethnicity requirements for co-borrower ethnicity, To conform to HMDA reporting This new data field identifies the FHFA has added this data element as requirements, FHFA has added the ethnicity of the borrower of the loan new data field 42f in the single-family following new data fields to the PUDB acquired by the Enterprise. The Census Tract File. (See the single-family matrices for data elements that are Enterprises have been reporting single- matrix in the Appendix for the specific currently collected and reported by the family borrower ethnicity to FHFA, but codes that apply.) Enterprises but which had been coded these data were previously included differently in the PUDB. under code 7 (Hispanic or Latino) in e. Single-Family Data Field 59: Lien data field 41 in the single-family PUDB Status a. Single-family Data Fields 41a–41e: files and not as a separate data field. Borrower Race or National Origin 1–5 This new data field identifies the lien The Enterprises did not comment on status of the single-family loans These data fields identify the race or this data field. acquired by the Enterprises. The national origin of the borrower of the To conform to HMDA reporting Enterprises have been reporting single- loan acquired by the Enterprise. Since requirements for borrower ethnicity, family lien status under the ‘‘purpose of 2004, the Enterprises have been FHFA has added this data element as loan’’ data field. Freddie Mac confirmed reporting single-family borrower race or new data field 41f in the single-family that it collects single-family lien status national origin in accordance with five Census Tract File. (See the single-family data when it purchases mortgage loans defined fields—borrower race1- matrix in the Appendix for the specific and currently provides this data to borrower race5—but the data was codes that apply to this data field.) FHFA. Freddie Mac stated that the included in a single race or national c. Single-family Data Fields 42a–42e: single-family lien status data field origin field in the PUDB. The should be identified in the PUDB as ‘‘not Enterprises did not comment on these Co-Borrower Race or National Origin 1– 5 applicable’’ because of the Enterprises’ data fields. status as loan purchasers, asserting that To conform to HMDA reporting These data fields identify the race or the HMDA instructions specifically requirements, FHFA has incorporated national origin of the co-borrower of the differentiate between the reporting these five fields in the single-family loan acquired by the Enterprise. Since requirements and data element coding Census Tract File to reflect HMDA’s 2004, the Enterprises have been for originated versus purchased loans. borrower race or national origin fields. reporting single-family co-borrower race Fannie Mae did not comment on single- (See the single-family matrix in the or national origin to FHFA in family lien status. Appendix for the specific codes that accordance with five defined fields—co- The HMDA instructions do apply to these data fields.) FHFA is borrower race1- co-borrower race5—but distinguish, for purposes of some data continuing to include the data as a the data was included in a single race elements, between insured depository single data field in National Files A and or national origin field in the PUDB. institutions that are loan purchasers and B, using an algorithm for collapsing the The Enterprises did not comment on those that are loan originators. Fannie five borrower race or national origin these data fields. Mae and Freddie Mac, because they are To conform to HMDA reporting fields and borrower ethnicity field to the not insured depository institutions, do requirements, FHFA has incorporated single field. The single data field in not have any status under HMDA, either these five fields in the single-family National Files A and B is constructed as as originators or as purchasers. But they Census Tract File to reflect HMDA’s co- follows: are, as a result of their activities, in i. If the borrower ethnicity field borrower race or national origin fields. possession of HMDA data elements for indicates that the borrower is Hispanic (See the single-family matrix in the the loans that they purchase. In its role or Latino, then the single field’s value Appendix for the specific codes that as the agency charged with indicates the value for ‘‘Hispanic or apply to these data fields.) FHFA is administering the Safety and Soundness Latino’’ regardless of race (consistent continuing to include the data as a Act, FHFA, by this Order, is identifying with reporting prior to 2004); single data field in single-family the data elements that must be reported ii. Otherwise, if a unique value within National Files A and B, and the and included in the PUDB. Since the borrower race1- borrower race5 algorithm used for collapsing the five Enterprises have been collecting and indicates that the borrower is American co-borrower race or national origin reporting single-family lien status data, Indian or Alaskan Native, Asian, Black fields and co-borrower ethnicity field to FHFA is requiring the Enterprises to or African American, Native Hawaiian the single data field is the same as that continue reporting that data for or Other Pacific Islander, or White, then used for the five borrower race or inclusion in new data field 59 for lien the single field’s value is that unique national origin fields and borrower status in the single-family Census Tract value (this includes multiple selections ethnicity field discussed under single- File. FHFA has populated the data field of that unique value); family data fields 41a-41e above. iii. Otherwise, if the values within using the lien status data reported for borrower race1- borrower race5 indicate d. Single-Family Data Field 42f: Co- data field 22 (purpose of loan), and will that the borrower has selected more Borrower Ethnicity do the same for subsequent years. than one of American Indian or Alaskan This new data field identifies the 2. Data Elements Currently Collected Native, Asian, Black or African ethnicity of the co-borrower of the loan and Reported But Not Previously American, Native Hawaiian or Other acquired by the Enterprise. The Included in the PUDB Pacific Islander, or White, then the Enterprises have been reporting single- a. Single-Family Data Field 56: Rate single field’s value indicates ‘‘Two or family co-borrower ethnicity to FHFA, Spread more races’’; but the data was previously included iv. Otherwise, the single field’s value under code 7 (Hispanic or Latino) in This new data field designates the indicates ‘‘not available/not applicable’’ data field 42 in the single-family PUDB difference between the annual

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percentage rate (APR) and the comment on single-family HOEPA manufactured housing be built on a applicable Treasury rate (see the Truth status. permanent chassis that is attached to a in Lending regulations at 12 CFR part Accordingly, to conform to HMDA permanent foundation. 226 (Regulation Z)) for single-family reporting requirements for HOEPA Subsequent discussions with Fannie mortgages purchased by the Enterprises. status, FHFA has added this data Mae revealed that it distinguishes The Enterprises have been reporting rate element as new data field 57 in the between modular homes that are ‘‘on- spread data for single-family mortgages, single-family Census Tract File. frame’’ (i.e., built on a permanent chassis and ready for occupancy upon but this data was not previously c. Multifamily Data Field 50: Lien Status included in the PUDB. Fannie Mae leaving the factory but not subject to requested that the PUDB include ‘‘not This new data field identifies the lien HUD code standards) and ‘‘off-frame’’ applicable’’ as an allowable value for the status of the multifamily loans acquired (i.e., housing that is not ready for single-family rate spread data field, on by the Enterprises. Unlike single-family occupancy upon leaving the factory but the basis that HMDA does not require lien status, multifamily lien status is not must be constructed on-site). Fannie the disclosure of rate spread information currently included in the ‘‘purpose of Mae indicated that it does not purchase for single-family rate spreads falling loan’’ data field in the multifamily any loans relating to ‘‘on-frame’’ below specified thresholds (equal to or matrix. Fannie Mae has collected but modular homes. Accordingly, it appears greater than 3 percentage points for first not reported this data in the past. that the types of loans that Fannie Mae lien loans, or 5 percentage points for Freddie Mac confirmed that it collects purchases are secured by manufactured subordinate lien loans). In addition, multifamily lien status data when it homes that meet both the HMDA and Fannie Mae stated that HMDA does not purchases mortgage loans and currently HUD code standards. require purchasers to disclose rate provides this data to FHFA for housing Fannie Mae does purchase loans spread information. Freddie Mac goals purposes. secured by off-frame modular homes expressed similar views. In response to FHFA’s request, that need to be constructed on-site. Freddie Mac and Fannie Mae provided Since the Enterprises have been However, these modular homes would FHFA with the multifamily lien status ‘‘ ’’ collecting and reporting rate spread data not qualify as manufactured homes data necessary to populate the new for single-family mortgages, FHFA is under either HMDA’s or HUD’s multifamily lien status data field for the requiring the Enterprises to continue standards since they are not ready for PUDB. However, Freddie Mac stated reporting that data, which will be occupancy upon leaving the factory. that the multifamily lien status data included in new data field 56 in the These homes would be designated as field should be identified in the PUDB single-family Census Tract File. single-family homes. as ‘‘not applicable’’ because of the Fannie Mae also asserted that there For 2008, HMDA requires the Enterprises’ status as loan purchasers, are timing discrepancies with regard to reporting of values for rate spread of 3.0 making the argument (already addressed the reporting of data for the PUDB and and greater for first liens, and 5.0 and above) that the HMDA instructions HMDA. It stated that lenders report to greater for subordinate liens. For 2009 differentiate between the reporting HMDA those loans that are purchased or and subsequent years, HMDA requires requirements and data element coding originated in the reporting year, while the reporting of values for rate spread of for originated versus purchased loans. Fannie Mae reports to FHFA all 1.5 and 3.5, respectively. Values below Since the Enterprises have been mortgages purchased in a year—whether these thresholds, including values that collecting multifamily lien status data, originated in the current year or ‘‘ ’’ would be identified as not applicable, FHFA is requiring the Enterprises to seasoned loans. FHFA recognizes that ‘‘ ’’ will be reported as a numeric zero ( 0 ) report that data for inclusion in new because of these differences in the because the PUDB is released as a data field 50 for lien status in the nature of the PUDB and HMDA, timing numeric-only database. multifamily Census Tract File. differences in the reporting of single- b. Single-Family Data field 57: HOEPA 3. Data Element Currently Collected But family property data are inevitable. Status Not Previously Reported—Single- Nevertheless, since this is a HMDA- required data field (see 12 CFR This new data field designates Family Data Field 58: Property Type 203.4(a)(4)), FHFA is required to obtain whether a single-family loan acquired This new data field identifies the type such data from the Enterprises. by the Enterprise is subject to HOEPA, of property securing the loan acquired Accordingly, to conform to HMDA as implemented in Regulation Z, 12 CFR by the Enterprises. HMDA reporting reporting requirements for property 226.32, because the APR or the points requirements differentiate the single- type, FHFA has added property type, and fees on the loan exceed the HOEPA family property type data element as without modification, as new data field 5 triggers. The Enterprises have been single-family or manufactured housing. 58 in the single-family Census Tract collecting and reporting the HOEPA The Enterprises have not previously File. status of single-family loans to FHFA, been required to distinguish between but this data was not previously single-family and manufactured housing C. HMDA Data Elements Not included in the PUDB. Fannie Mae in their data reporting to FHFA. Incorporated in the PUDB, Consistent commented that, under its business In response to FHFA’s request, Fannie With Section 304(j) of HMDA policies, single-family mortgages that Mae and Freddie Mac provided FHFA Section 1326(d) of the Safety and are subject to HOEPA are not eligible for with the requested single-family Soundness Act, as amended, provides sale to Fannie Mae. However, such property type data. Fannie Mae that the information related to loan loans can be purchased inadvertently by commented that it collects and reports applicants’ privacy interests as the Enterprises. Freddie Mac did not manufactured housing data in a manner described in section 304(j) of HMDA different from that of HMDA reporters. shall not be disclosed to the public. 5 HOEPA applies to a ‘‘consumer credit Specifically, Fannie Mae stated that the Section 304(j) requires specifically that transaction that is secured by the consumer’s HMDA definition of ‘‘manufactured the following PII not be disclosed to the principal dwelling’’ in which either the APR, or the ’’ total points and fees payable by the consumer at or home incorporates the definition used public: before loan closing, exceed certain specified by HUD and includes modular homes, (1) The applicant’s name and amounts. while Fannie Mae requires that identification number;

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(2) The date of the loan application; in the PUDB had to have been are occupied by renters and thus not and originated in order to be acquired by the owner-occupied. (3) The date of any determination by Enterprises. 9. Multifamily: Type of Property the lending institution with respect to the application. 4. Purchaser Type This HMDA data element identifies In addition, section 304(j) requires This HMDA data element indicates the type of property securing the loan that any disclosure of information must the type of entity that purchased the made by the HMDA-reporting lender. ensure that depository institutions are loan from the HMDA-reporting lender. This data element is not relevant to the protected from liability under any FHFA has not added this data field to Enterprise PUDB multifamily Census Federal or State privacy laws. the PUDB because the Enterprises are Tract File because the PUDB reports Consistent with section 304(j) of always the purchasers of the loans data for single-family and multifamily HMDA, the PUDB does not disclose PII disclosed in the PUDB and this data is loans in separate files and, therefore, all contained in loan data reported by the released in data field 0, ‘‘Enterprise flag’’ loans in the multifamily files are, by Enterprises to FHFA. FHFA does not (formerly called ‘‘agency flag’’). definition, secured by multifamily receive the loan applicant’s name, properties. 5. Denial Reason 1–3 identification number, or date of loan E. Technical Revisions to Data Fields in This HMDA data element indicates application from the Enterprises. FHFA the PUDB Matrices does receive the date of the mortgage the reasons a loan was denied by the note, which is equivalent to the HMDA HMDA-reporting lender. FHFA has not 1. Conforming to Long-Standing PUDB ‘‘action date’’ for an originated loan, but added this data field to the PUDB Reporting Practice or Providing Greater FHFA does not release this information because all of the loans in the PUDB had Clarity in the PUDB files with the exception of to have been originated in order to be FHFA has made technical revisions to single-family National File B where it is acquired by the Enterprises and, certain data fields in the PUDB matrices released in data field 20 using the therefore, could not have been denied. to conform the data fields to long- following recoded values to protect PII: 6. Edit Status standing PUDB data reporting practice 1 = originated same calendar year as or provide greater clarity, as further acquired; 2 = originated prior to This data field indicates the validity discussed below. calendar year of acquisition; or 9 = and/or quality status of the data a. Single-Family and Multifamily Data missing. reported by the HMDA-reporting institution. The data field is created by Field 1: Loan Number D. HMDA Data Elements Not FFIEC in developing the publicly- This data field designates the Incorporated in the PUDB as released HMDA database. Since the data sequence number assigned by FHFA in Inapplicable field is not required to be reported by the PUDB files that corresponds to the The HMDA data fields discussed HMDA-reporting institutions, and the loan number assigned by the Enterprise. below have not been incorporated in the data released to FHFA for inclusion in FHFA has changed the description of PUDB because they are inapplicable to the PUDB is certified as accurate by the this data field to conform the Enterprise mortgage purchases. Enterprises, FHFA has not added this description to the long-standing practice data field to the PUDB. of using randomly generated sequence 1. As of Year 7. Application Date Prior 2004 Flag numbers (and not random numbers as This data field indicates the calendar the previous description suggested) to year in which the HMDA data are being This HMDA data field indicates why identify Enterprise mortgage loan released, and is created by the Federal certain fields added to HMDA reporting purchases in the PUDB. Each loan Financial Institutions Examination in 2004 were reported under pre-2004 record is assigned a different sequence Council (FFIEC) in developing the reporting standards, e.g., the expanded number that is randomly generated publicly-released HMDA database. race/ethnicity fields. The data field was within each file. Thus, the first loan Since it is not a data element required created by FFIEC in developing the record in the Census Tract File is not to be reported by HMDA-reporting publicly-released HMDA database, and also the first loan record in the National institutions, FHFA has not added this is based on the date of the loan File A or National File B with a very data field to the PUDB. application reported by HMDA- high degree of probability. A similar reporting lenders. The date of the loan change to the description of this data 2. Preapproval application is private applicant element has been made in data field 1 This HMDA data element indicates information under section 304(j) of of the multifamily matrix. whether the loan involved a request by HMDA, and the flag is now essentially a household to the HMDA-reporting moot as there currently are few, if any, b. Single-Family and Multifamily Data lender for preapproval of a loan. FHFA pre-2004 loan applications reported in Field 4: MSA Code has not added this data field to the the HMDA database. Accordingly, This data field designates the PUDB because all loans in the PUDB FHFA has not added this data field to Metropolitan Statistical Area (MSA) had to have been originated in order to the PUDB. Code for the location of the property be acquired by the Enterprises. securing the Enterprise mortgage loan. 8. Multifamily: Occupancy Consistent with long-standing PUDB 3. Action Type This HMDA data element identifies data reporting practice, FHFA has This HMDA data element indicates whether the property to which the loan revised this data field in the single- the type of action taken on the loan by relates is to be owner-occupied as a family and multifamily Census Tract the HMDA-reporting lender, e.g., loan principal residence. This data field is Files to include a value ‘‘99999’’ for originated, application approved but not not relevant to the PUDB multifamily properties located outside of an MSA accepted, application denied, Census Tract File because the PUDB (e.g., rural locations or micropolitan application withdrawn, or other reports data for single-family and statistical areas). In addition, consistent specified reasons. FHFA has not added multifamily loans in separate files, and with long-standing PUDB data reporting this data field to the PUDB as all loans multifamily properties, by definition, practice, FHFA has added in the matrix

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for the Census Tract File a value entitled Enterprise mortgage, which is: The MSA applicable to single-family transactions ‘‘Other’’ for properties located in a for properties located in an MSA; or the and already appears in the multifamily specific MSA, which would be county or State non-metropolitan area loan matrix. Accordingly, FHFA has applicable to any 5-digit number other for properties located outside an MSA, deleted this code from the single-family than 00000 (for missing property whichever is greater. FHFA has loan matrix. location) or 99999. renamed this data element from ‘‘1990 l. Single-Family Data Field 34 and Local Area Median Income’’ to ‘‘2000 c. Single-Family and Multifamily Data Multifamily Data Field 33: Type of Local Area Median Income,’’ as the Field 6: County—2000 Census Seller Institution Enterprises have used 2000 census tract This data field designates the county data since 2005. This data field identifies the type of location of the property securing the seller of the loan to the Enterprise. Enterprise mortgage loan. FHFA has h. Single-Family Data Field 16: Area FHFA has expanded the reporting codes renamed the data field from ‘‘County— Median Family Income for this data field to include additional 1990 Census’’ to ‘‘County—2000 This data field designates the AMI for types of sellers, as the Enterprises have Census,’’ as the Enterprises have the location of the property securing the reported their mortgage data using these reported 2000 Census geography since Enterprise mortgage for the reporting expanded codes since 2001. For single- 2003. The reference in this and other year (i.e., year of mortgage acquisition family National File B and the data fields to the 2000 Census will be by the Enterprise), which is: The MSA multifamily Census Tract File, FHFA is updated to refer to the 2010 Census for properties located in an MSA; or the preserving the prior PUDB data field when applicable to a future PUDB. county or State non-metropolitan area recoding, which is: 1 = Mortgage for properties located outside an MSA, Company; 2 = SAIF Insured Depository d. Single-Family and Multifamily Data whichever is greater. FHFA has Institution; 3 = BIF Insured Depository Field 7: Census Tract—2000 Census eliminated the incorrect reference in the Institution; 4 = NCUA Insured Credit This data field designates the census data field to ‘‘withheld as proprietary,’’ Union; 5 = Other. The prior PUDB data tract location of the property securing as this data field has always been non- field recoding is also preserved for the the Enterprise mortgage loan. FHFA has proprietary in the single-family multifamily National File. renamed the data field from ‘‘Census database. Tract/BNA—1990 Census’’ to ‘‘Census m. Single-Family Data Field 38 and Tract—2000 Census,’’ as the Enterprises i. Single-Family Data Field 17: Borrower Multifamily Data Field 36: Acquisition have reported 2000 Census geography Income Ratio Type since 2003, and Block Numbering Areas This data field identifies the ratio of This data field identifies the type of (BNAs) were phased out after the 1990 the borrower’s annual income to the acquisition by the Enterprise (e.g., credit Census.6 AMI (data field 16). FHFA has enhancement, purchase of State or local eliminated the incorrect reference in the mortgage revenue bond). FHFA has e. Single-Family and Multifamily Data data field to ‘‘withheld as proprietary,’’ expanded the reporting codes for this Field 11: 2000 Census Tract—Percent as this data field has always been non- data field to include additional Minority proprietary (i.e., only coded 9999 when acquisition types, as the Enterprises This data field designates the borrower income or AMI is unknown) in have reported their mortgage data using percentage of the population that the single-family database. these expanded codes since 2003. belongs to all minority groups in the Fannie Mae noted that the proposed j. Single-Family Data Field 25 and census tract location of the property addition of the acquisition type code of Multifamily Data Field 24: ‘‘Special securing the Enterprise mortgage. FHFA ‘‘61 = asset management refinance’’ is Affordable, Seasoned Loan: Are has renamed this data field from ‘‘1990 not applicable to single-family Proceeds Recycled?’’ Census Tract—Percent Minority’’ to transactions and already appears in the ‘‘2000 Census Tract—Percent Minority,’’ This data field identifies the specific multifamily loan matrix. FHFA agrees as the Enterprises have used 2000 reasons in accordance with 12 CFR with this comment and, as a result, has census tract demographic data since 1282.14(e) for an Enterprise claiming not included this code in the single- 2005. Special Affordable Housing Goal credit family matrix. for the Enterprise’s purchase of loans f. Single-Family and Multifamily Data that originated more than one year prior 2. Conforming to New Statutory Field 12: 2000 Census Tract—Median to the date of acquisition. FHFA has Requirements Income expanded the reporting codes for this FHFA has made technical revisions to This data field designates the family data field to include additional reasons certain data fields and references in the area median income (AMI) of the census set forth under 12 CFR 1282.14(e), as the PUDB matrices to conform to the new tract location of the property securing Enterprises have reported their mortgage HERA requirements, as further the Enterprise mortgage. FHFA has data using these expanded codes since discussed below. renamed this data field from ‘‘1990 2001. a. Single-Family Data Field 15: Census Tract—Median Income’’ to ‘‘2000 k. Single-Family Data Field 27: Federal Borrower’s (or Borrowers’) Annual Census Tract—Median Income,’’ as the Guarantee Income Enterprises have used 2000 census tract data since 2005. This data field identifies the source of This data field identifies the the Federal guarantee or insurance of borrower’s or borrowers’ annual income, g. Single-Family and Multifamily Data the loan acquired by the Enterprise. The which is the numerator of the borrower Field 13: 2000 Local Area Median single-family loan matrix previously income ratio reported in data field 17. Income included a code 4 for the purchase of a To be consistent with HMDA reporting This data field designates the AMI for mortgage that assists in maintaining the requirements, FHFA is now rounding the location of the property securing the affordability of assisted units in eligible the values reported for this data field to multifamily housing projects with the nearest $1,000 (where values of $500 6 http://www.census.gov/geo/www/cen_tract.html. expiring contracts. The code is not or more are rounded up) of the

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borrower’s annual income, in addition V. Proposed Data Elements Not and collecting the data would impose a to the current practice of recoding in Currently Collected That Will Not Be substantial additional burden on the terms of dollars for year of acquisition. Included in the PUDB Enterprises while they are in conservatorship, FHFA is not requiring b. Single-Family Data Field 18 and FHFA had originally considered requiring the reporting and public the Enterprises to collect and report Multifamily Data Field 17: Acquisition these data for inclusion in the PUDB. UPB release of data fields for multifamily borrower and co-borrower race or B. Multifamily Rate Spread Consistent with section 1323(b)(2) of national origin, multifamily borrower FHFA considered adding a new the Safety and Soundness Act, as and co-borrower ethnicity, multifamily HMDA data field to the PUDB that 7 amended, FHFA is not applying the borrower and co-borrower gender, would have designated the difference same methods that previously were multifamily rate spread, multifamily between the APR and the applicable used to mask loan acquisition UPB data, HOEPA status, respondent ID and Treasury rate for multifamily mortgages i.e., FHFA has removed the topcoding agency code. After considering the acquired by the Enterprise. Both and the use of categories in reporting Enterprises’ comments, and upon Enterprises commented that they do not acquisition UPB that previously were further review of the statutory collect multifamily rate spread, and applied to this data field as described in requirements, as discussed in Section maintained that this data field is not the single-family matrix. The loan I.B. above, FHFA has determined that applicable to multifamily lending under acquisition UPB is rounded to the the Enterprises are not required under Regulation Z (12 CFR 226.1(c), which nearest $1,000 (where values of $500 or HERA to report these data elements as implements the Truth in Lending Act) more are rounded up), consistent with they do not currently collect these data. and HOEPA. Fannie Mae contended HMDA reporting requirements. The Enterprises presented additional that, for loans subject to Regulation Z, Similarly, the multifamily loan arguments for why they should not be the reporting entity is required to acquisition UPB data is rounded to the required to collect and report these data, provide information on certain ‘‘high- nearest $1,000 (where values of $500 or which are discussed below. priced mortgage loans,’’ but stated that more are rounded up) to conform to A. Multifamily Borrower and Co- Regulation Z does not apply to HMDA reporting practice. Borrower Race or National Origin; extensions of credit to non-natural persons (citing to 12 CFR 226.3(a)(2)). The Enterprises collect two values of Multifamily Borrower and Co-Borrower Freddie Mac asserted that HMDA does UPB, both of which correspond to the Ethnicity; and Multifamily Borrower and not require the collection and reporting ‘‘ ’’ Co-Borrower Gender HMDA data field loan amount : of data for purchased loans, and both Acquisition UPB and origination UPB. FHFA considered adding new HMDA Enterprises stated that requiring the Historically, they have reported, and the data fields to the PUDB that would have collection of this data would involve PUDB has included, acquisition UPB. identified multifamily borrower and co- considerable expense and impose a Because this HMDA data element is borrower race or national origin, significant regulatory burden. rounded to the nearest $1000, and multifamily borrower and co-borrower Since the Enterprises are not currently because the majority of loans acquired ethnicity, and multifamily borrower and collecting this data, and the data point by the Enterprises are current-year co-borrower gender. Both Fannie Mae is not a HMDA data element for the originations for which there is a and Freddie Mac commented that they great majority of multifamily loans that negligible amount of amortization do not collect race, national origin, the Enterprises purchase, as to which between origination and acquisition, ethnicity, or gender for their the borrowers are non-natural persons, there is no difference between the multifamily loan purchases since the and collecting the data would impose a values in most cases. FHFA will vast majority of their multifamily substantial additional burden on the continue to include acquisition UPB in mortgage business involves non-natural Enterprises while they are in the PUDB. persons (e.g., limited liability conservatorship, FHFA is not requiring companies, corporations). Freddie Mac c. References to ‘‘Enterprises’’ and the Enterprises to collect and report this stated that HMDA does not require these data for inclusion in the PUDB. Regulatory Cites data elements to be reported for loans C. Multifamily HOEPA Status To reflect revisions in terminology as involving a borrower or applicant that is a result of the enactment of HERA, not a natural person (citing to 12 CFR FHFA considered adding a new FHFA has changed the references to part 203, App. A at I.D.1), or by HMDA data field to the PUDB that ‘‘GSEs’’ in the PUDB matrices to secondary market loan purchasers would have designated whether the ‘‘Enterprises.’’ The PUDB is applicable (citing to 12 CFR 203.4(b)(2)). In multifamily loan acquired by the only to loan data submitted by the addition, both Fannie Mae and Freddie Enterprise is subject to HOEPA because Enterprises, i.e., Fannie Mae and Mac claimed that collecting such data the APR or the points and fees on the Freddie Mac. The PUDB is not would involve considerable expense loan exceed the HOEPA triggers. Both applicable to loan data submitted by the and significant additional work and Enterprises stated that they do not Banks, which are also GSEs but are resources. Freddie Mac requested that collect multifamily HOEPA status and, for the reasons discussed under the subject to separate PUDB reporting FHFA consider these data elements to ‘‘ multifamily rate spread discussion requirements. The regulatory cites in the be optional and reportable as not ’’ above, maintained that this data field is PUDB matrices have also been revised, applicable in accordance with HMDA reporting requirements for purchased also not applicable to multifamily as the applicable regulatory provisions loans. lending under Regulation Z and are now located in Title 12 of the Code Since the Enterprises are not currently HOEPA. Fannie Mae also stated that of Federal Regulations. collecting these data, and the data point HOEPA applies ‘‘to a consumer credit is not a HMDA data element for the transaction that is secured by the 7 Section 1323(b)(2) prohibits the Director from ’’ restricting public access to the data elements great majority of multifamily loans that consumer’s principal dwelling and required to be reported under HMDA at the census the Enterprises purchase, as to which does not apply to multifamily tract level. the borrowers are non-natural persons, properties.

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For the reasons stated with respect to guidelines and infrastructure to collect Act of 1975 (HMDA), 12 U.S.C. 2801 et the multifamily data elements discussed such data. seq., at the census tract level, and that above, FHFA is not requiring the For the convenience of the affected such data elements be disclosed to the Enterprises to collect and report this parties, the Order is recited below in its public, see 12 U.S.C. 4543; data for inclusion in the PUDB. entirety. You may access this Order Whereas, to comply with sections from FHFA’s Web site at http:// 1323 and 1326 of the Safety and D. Single-Family and Multifamily www.fhfa.gov/Default.aspx?Page=43. Soundness Act, as amended, it is Respondent ID and Agency Code The Order will be available for public necessary to make changes to the data FHFA considered adding new HMDA inspection and copying at the Federal fields in FHFA’s single-family and data fields to the PUDB that would have Housing Finance Agency, Fourth Floor, multifamily matrices of the PUDB to designated the identification number 1700 G St., NW., Washington, DC 20552. incorporate the data elements required (respondent ID) assigned by a HMDA- To make an appointment, call (202) thereunder and to reflect HMDA reporting lender’s regulatory agency to 414–6924. reporting practices; the institution that reported the loan, VI. Order Whereas, FHFA has determined that and the code of the regulatory agency certain technical revisions to the data (agency code) for the HMDA-reporting Public Use Database for Enterprise elements in the single-family and lender that provided the loan to the Mortgage Purchases multifamily matrices of the PUDB borrower. The Enterprises have not been Whereas, section 1323(a)(1) of the should also be made to conform the data collecting respondent IDs and agency Federal Housing Enterprises Financial fields to long-standing PUDB data codes for their single-family or Safety and Soundness Act of 1992 reporting practice, to provide greater multifamily loan purchases. (Safety and Soundness Act), as clarity, or to conform to the new Fannie Mae and Freddie Mac opposed amended, 12 U.S.C. 4543(a)(1), requires statutory requirements; inclusion in the PUDB of the respondent the Director of the Federal Housing Whereas, the Enterprises were ID and agency code data fields, claiming Finance Agency (FHFA) to make provided with an opportunity to review that these are not required HMDA data available to the public the non- and comment on proposed revisions to fields, as described in Regulation C proprietary single-family and the data fields in the single-family and (citing to 12 CFR 203.4(a)) and, multifamily loan-level mortgage data multifamily matrices of the PUDB, and therefore, they are not data elements elements submitted to FHFA by the FHFA has taken the Enterprises’ required to be reported in the PUDB Federal National Mortgage Association comments into consideration in under HERA. (Fannie Mae) and the Federal Home adopting this Order; Freddie Mac also asserted that even if Loan Mortgage Corporation (Freddie Whereas, FHFA requested that the respondent ID and agency code Mac) (collectively, the Enterprises) in Enterprises provide it with specific new constitute data elements under HMDA, their mortgage reports; mortgage data for inclusion in the PUDB HMDA reporters that are purchasers are Whereas, the responsibility to in accordance with the requirements of not required to report from whom they maintain a public use database (PUDB) HERA, and the Enterprises provided the purchased a loan (whether from the for such mortgage data was transferred specific data that they currently collect; originator or from another entity). to FHFA from the U.S. Department of Now, therefore, it is hereby ordered as Fannie Mae also stated that currently it Housing and Urban Development (HUD) follows: collects and reports to FHFA the type of pursuant to sections 1122, 1126 and 1. The data fields in the single-family institution that sold the loan to Fannie 1127 of the Housing and Economic and multifamily matrices of the PUDB Mae (single-family data field 34 and Recovery Act of 2008 (HERA), Public. are revised as set forth in the attached multifamily data field 33), and this data Law 110–289 (July 30, 2008), see 12 Appendix which is incorporated herein is disclosed in the PUDB and provides U.S.C. 4543(a)(2); by reference; a more specific description than Whereas, the mortgage data submitted 2. The Enterprises shall provide revealed by agency code of the type of by Fannie Mae and Freddie Mac are FHFA with the mortgage data required institution from which Fannie Mae contained in their reports required to populate the data fields described in purchases its loans. under section 309(m) of the Federal the single-family and multifamily In addition, Fannie Mae asserted that National Mortgage Association Charter matrices in the Appendix; and if FHFA concludes that respondent ID is Act, as amended, 12 U.S.C. 1723a(m), 3. This Order supersedes the HUD a HMDA data element, it would request and section 307(e) of the Federal Home Final Order of October 4, 2004 (69 FR proprietary treatment under 24 CFR Loan Mortgage Corporation Act, as 59476) and shall be effective until such 81.74(b) to prevent the public release of amended, 12 U.S.C. 1456(e), time as FHFA determines that it is this data, which Fannie Mae believes respectively (hereafter, Charter Acts), necessary and/or appropriate to will result in competitive harm. and include mortgage data withdraw or modify it. Since the Enterprises are not characteristics of single-family and collecting these data, and doing so multifamily mortgagors and data on the Signed at Washington, DC, this 1st day of July 2010. would impose a substantial additional Enterprises’ single-family and burden on them while they are in multifamily mortgage purchases; Wanda DeLeo, conservatorship, FHFA is not requiring Whereas, section 1126 of HERA Acting Deputy Director for Housing Mission the Enterprises to collect and report amended section 1323 of the Safety and and Goals By delegation. these data for inclusion in the PUDB. In Soundness Act by requiring that such Dated: July 8, 2010. particular, it would be burdensome, data submitted by the Enterprises in Edward J. DeMarco, expensive and time-consuming for the their mortgage reports shall include the Acting Director, Federal Housing Finance Enterprises to make the necessary data elements required to be reported Agency. changes to their seller-servicer under the Home Mortgage Disclosure BILLING CODE 8070–01–P

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[FR Doc. 2010–17119 Filed 7–14–10; 8:45 am] includes whether the acquisition of the FEDERAL TRADE COMMISSION BILLING CODE 8070–01–C nonbanking company complies with the standards in section 4 of the BHC Act Granting of Request for Early (12 U.S.C. 1843). Unless otherwise Termination of the Waiting Period FEDERAL RESERVE SYSTEM noted, nonbanking activities will be Under the Premerger Notification conducted throughout the United States. Rules Formations of, Acquisitions by, and Additional information on all bank Mergers of Bank Holding Companies holding companies may be obtained Section 7A of the Clayton Act, 15 from the National Information Center The companies listed in this notice U.S.C. 18a, as added by Title II of the website at www.ffiec.gov/nic/. Hart-Scott Rodino Antitrust have applied to the Board for approval, Unless otherwise noted, comments pursuant to the Bank Holding Company Improvements Act of 1976, requires regarding each of these applications persons contemplating certain mergers Act of 1956 (12 U.S.C. 1841 et seq.) must be received at the Reserve Bank (BHC Act), Regulation Y (12 CFR Part or acquisitions to give the Federal Trade indicated or the offices of the Board of Commission and the Assistant Attorney 225), and all other applicable statutes Governors not later than August 9, 2010. General advance notice and to wait and regulations to become a bank A. Federal Reserve Bank of holding company and/or to acquire the Richmond (A. Linwood Gill, III, Vice designated periods before assets or the ownership of, control of, or President) 701 East Byrd Street, consummation of such plans. Section the power to vote shares of a bank or Richmond, Virginia 23261–4528: 7A(b)(2) of the Act permits the agencies, bank holding company and all of the 1. CapGen Capital Group VI LLC, and in individual cases, to terminate this banks and nonbanking companies CapGen Capital Group VI LP, both of waiting period prior to its expiration owned by the bank holding company, New York, New York; to become bank and requires that notice of this action be including the companies listed below. holding companies by acquiring up to published in the Federal Register. The applications listed below, as well 49.9 percent of the voting shares of as other related filings required by the The following transactions were Hampton Roads Bankshares, Inc., and Board, are available for immediate granted early termination of the waiting Bank of Hampton Roads, both of inspection at the Federal Reserve Bank period provided by law and the Norfolk, Virginia, and Shore Bank, indicated. The applications also will be premerger notification rules. The grants Onley, Virginia. available for inspection at the offices of were made by the Federal Trade the Board of Governors. Interested Board of Governors of the Federal Reserve Commission and the Assistant Attorney persons may express their views in System, July 12, 2010. General for the Antitrust Division of the writing on the standards enumerated in Jennifer J. Johnson, Department of Justice. Neither agency the BHC Act (12 U.S.C. 1842(c)). If the Secretary of the Board. intends to take any action with respect proposal also involves the acquisition of [FR Doc. 2010–17286 Filed 7–14–10; 8:45 am] to these proposed acquisitions during a nonbanking company, the review also BILLING CODE 6210–01–S the applicable waiting period.

TRANSACTION GRANTED EARLY TERMINATION

ET req ET date Trans No. status Party name

. 01–JUN–10 ...... 20100246 G Francisco Partners, L.P. G Inovis International, Inc. G Inovis International, Inc. 20100657 G AMETEK, Inc. G Pfingsten Executive QP Fund III, L.P. G TSE Acquisition Corporation. 20100692 G Hewlett-Packard Company. G Palm, Inc. G Palm, Inc. 20100718 G Industrial Growth Partners III, L.P. G Fred H. Stubblefield, III. G Controls Southeast, Inc. 20100720 G Veraz Networks, Inc. G Dialogic Corporation. G Dialogic Corporation. 20100722 G Mill Road Capital, L.P. G Rubio’s Restaurants, Inc. G Rubio’s Restaurants, Inc. 20100723 G Thomas H. Lee Equity Fund VI, L.P. G inVentiv Health, Inc. G inVentiv Health, Inc. 20100727 G Leonard A, Lauder. G SBX, LLC. G SBX Holding Company. 20100728 G NRG Energy, Inc. G Pinnacle West Capital Corporation. G Northwind Phoenix, LLC. 20100730 G Providence Equity Partners VI, L.P. G Virtual Radiologic Corporation. G Virtual Radiologic Corporation. 03–JUN–10 ...... 20100702 G LifePoint Hospitals, Inc.

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TRANSACTION GRANTED EARLY TERMINATION—Continued

ET req ET date Trans No. status Party name

G Sumner Regional Health Systems, Inc. G Frank T. Rutherford Memorial Hospital, Inc. G Sumner Homecare and Hospice, LLC. G Trousdale Medical Center, Inc. G SRHS Holdings, LLC. G Family Wellness Group of Middle Tennessee, LLC. G Wellness, Inc. G SST Community Health, LLC. G ClinicCare, LLC. G Patient Partners, LLC. 20100735 G Lexmark International, Inc. G Perceptive Software Inc. G Perceptive Software Inc. 04–JUN–10 ...... 20100689 G Blue Point Capital Partners II, L.P. G Jeffrey A. Kaiser. G Kaiser Contract Cleaning Specialist, Inc. G Canadian Contract Cleaning Specialists, Inc. 07–JUN–10 ...... 20100724 G Boralex Inc. G Boralex Power Income Fund. G Boralex Power Income Fund. 20100729 G Annand and Divvyani A. Sarnaaik. G DecisionOne Corporation. G DecisionOne Corporation. 20100736 G ArcLight Energy Partners Fund III, L.P. G KGen Power Corporation. G KGen Sandersville LLC. 20100737 G Cerberus Institutional Partners, L.P. G Caritas Christi. G Caritas Christi. 20100743 G Discovery Communications, Inc. G Oprah Winfrey. G Harpo, Inc. 20100745 G Xerox Corporation. G Hewlett Packard Company. G ExcellerateHRO LLP. 20100747 G Harvest Partners V, L.P. G H.I.G. Capital Partners IV, L.P. G IG Staffing Holdings, Inc. 20100751 G Alliance Data Systems Corporation. G Equifax Inc. G Equifax Inc. 09–JUN–10 ...... 20100759 G Genstar Capital Partners V, L.P. G NT Investor Holdings Inc. G NT Investor Holdings, Inc. 11–JUN–10 ...... 20100744 G Cisco Systems, Inc. G CoreOptics, Inc. G CoreOptics, Inc. 20100765 G Kettering Adventist HealthCare dba Kettering Health Network. G Fort Hamilton Hospital Holding Company. G Fort Hamilton Hospital. 20100775 G The Hearst Family Trust. G iCrossing, Inc. G iCrossing, Inc. 20100778 G Agfa-Gevaert N.V. G Harold M. Pitman Company. G Harold M. Pitman Company. 20100786 G Sunoco Logistics Partners L.P. G Texon Holding II LP. G Texon Butane Blending LLC. 14–JUN–10 ...... 20100749 G Harmonic Inc. G G Omneon, Inc. G Omneon, Inc. 20100773 G Rakuten, Inc. G Scott A. Blum. G Buy.com Inc. 15–JUN–10 ...... 20100757 G Koch Industries, Inc. G George F. Landegger. G Alabama Pine Pulp Company, Inc. G Alabama River Group, Inc. G Alabama River Pulp Company, Inc. G Alabama River Woodlands, Inc.

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TRANSACTION GRANTED EARLY TERMINATION—Continued

ET req ET date Trans No. status Party name

G Alabama River Crude Tall Oil, Inc. G Alabama Pine Investments, Inc. G Independence Renewable Energy Corp. G Alabama River Chip Mills, Inc. 20100787 G Terteling Holding Company. G Halton Co. G Halton Co. 20100789 G Doyle Family Limited Partnership. G Halton Co. G Halton Co. 20100792 G Warburg Pincus Private Equity X, L.P. G Sterling Financial Corporation. G Sterling Financial Corporation. 20100794 G TOTAL S.A. G Amyris Biotechnologies, Inc. G Amyris Biotechnologies, Inc. 16–JUN–10 ...... 20100712 G Xcel Energy Inc. G Calpine Corporation. G Blue Spruce Energy Center, LLC. G Rocky Mountain Energy Center, LLC. 20100748 G MFI Holding Corporation. G Thomas H. Lee Equity Fund V, L.P. G M-Foods Holdings, Inc. 20100753 G St. Jude Medical, Inc. G Goodman Co., Ltd. G LightLab Imaging, Inc. 20100758 G Thoma Cressey Fund VIII, L.P. G Double-Take Software, Inc. G Double-Take Software, Inc. 20100763 G Alfred C. Liggins, III. G TVOne,LLC. G TVOne,LLC. 20100779 G Edward S. Lampert. G AutoNation, Inc. G AutoNation, Inc. 20100780 G Edward S. Lampert. G Sears Holdings Corp. G Sears Holdings Corp. 20100781 G Edward S. Lampert, G AutoZone, Inc. G AutoZone, Inc. 20100782 G Apollo Investment Fund V, L.P. G JPMorgan Chase & Co. G Connexions Loyalty Travel Solutions, LLC. G OEP TAG Holdings, LLC. G Loyalty Travel Agency, LLC. 17–JUN–10 ...... 20100750 G C. R. Bard, Inc. G SenoRx, Inc. G SenoRx, Inc. 18–JUN–10 ...... 20100790 G Merit Medical Systems, Inc. G BioSphere Medical, Inc. G BioSphere Medical, Inc. 20100795 G Carlyle Global Financial Services Partners, LP. G Hampton Roads Bankshares, Inc. G Hampton Roads Bankshares, Inc. 20100804 G BM&FBOVESPA S.A.-Bolsa de Valores, Mecadorias. G e Futuros. G CME Group Inc. G CME Group Inc. 20100809 G Centrica plc. G Clockwork Home Services, Inc. G Clockwork Home Services, Inc. 20100813 G ConocoPhillips. G Energy Spectrum Partners IV LP. G CERITAS Gathering Company, LP. 20100814 G Spectra Energy Corp. G Energy Spectrum Partners IV LP. G CERITAS Gathering Company, LP. 20100817 G TPG Vienna Holdings, LLC. G Heliman & Friedman Capital Partners V, L.P. G VF Holding Corp.

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TRANSACTION GRANTED EARLY TERMINATION—Continued

ET req ET date Trans No. status Party name

21–JUN–10 ...... 20100822 G Thoma Bravo Fund IX, L.P. G SonicWALL, Inc. G SonicWALL, Inc. 22–JUN–10 ...... 20100770 G BAE Systems plc. G JFL–AMH Co-Invest Partners, L.P. G Atlantic Marine Holding Company. 24–JUN–10 ...... 20100799 G JANA Offshore Partners, Ltd. G Charles River Laboratories International, Inc. G Charles River Laboratories International, Inc. 20100800 G Markit Group Holdings Limited. G The Goldman Sachs Group, Inc. G WSOD Holding Corporation. 20100801 G British Airways Plc. G Iberia, Lineas Aereas de Espana, S.A. G Iberia, Lineas Aereas de Espana, S.A. 20100802 G Iberia, Lineas Aereas de Espana, S.A. G British Airways Plc. G British Airways Plc. 20100805 G Endo Pharmaceuticals Holdings Inc. G HealthTronics, Inc. G HealthTronics, Inc. 20100808 G OCP Trust. G Logibec Groupe Informatique Ltee. G Logibec Groupe Informatique Ltee. 20100812 G Primo Water Corporation. G Clayton, Dubilier & Rice Fund VI, L.P. G Culligan Store Soiutions, LLC. 20100816 G FS Equity Partners VI, L.P. G Behrman Capital II L.P. G BECO Holding Company, Inc. 20100819 G R3 Treatment Holdings Inc. G Blue Sage Capital, L.P. G Controlled Recovery, Inc. G CRI Holdings, LLC. 25–JUN–10 ...... 20100764 G ConAgra Foods, Inc. G American Pie Holding Co. G American Pie LLC. 20100774 G United Technologies Corporation. G Sorenson Capital Partners, L.P. G LifePort Holding Corporation. 20100791 G ABB Ltd. G K–TEK Holding Corp. G K–TEK Holding Corp. 20100796 G Noam Gottesman. G Man Group plc. G Man Group plc. 20100797 G ARYZTA AG. G Lindsay Goldberg & Bessemer L.P. G FSB Global Holdings, Inc. 20100829 G Global Partners LP. G Exxon Mobil Corporation. G Exxon Mobil Corporation. 20100830 G Alaska USA Federal Credit Union. G Arrowhead Central Credit Union. G Arrowhead Central Credit Union. 20100833 G ASP V Alternative Investments, L.P. G Energy Spectrum Partners V, LP. G Laser Northeast Gathering Company LLC. G Laser Midstream Energy, LP.

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FOR FURTHER INFORMATION CONTACT: Comments are invited on: (a) Whether CDC is requesting continued OMB Sandra M. Peay, Contact Representative the proposed collection of information approval to collect this information or Renee Chapman, Contact is necessary for the proper performance through the use of two separate forms. Representative. of the functions of the agency, including These forms are: (1) Application for Federal Trade Commission, Premerger whether the information shall have Permit to Import or Transport Etiologic Notification Office, Bureau Of practical utility; (b) the accuracy of the Agents, Hosts, or Vectors of Human Competition, Room H–303 Washington, agency’s estimate of the burden of the Disease; and (2) Application for Permit DC 20580, (202) 326–3100. proposed collection of information; (c) to Import or Transport Live Bats. By direction of the Commission. ways to enhance the quality, utility, and The Application for Permit to Import clarity of the information to be or Transport Etiologic Agents, Hosts, or Donald S. Clark, collected; and (d) ways to minimize the Vectors of Human Disease will be used Secretary. burden of the collection of information by laboratory facilities, such as those [FR Doc. 2010–17051 Filed 7–14–10; 8:45 am] on respondents, including through the operated by government agencies, BILLING CODE 6750–01–M use of automated collection techniques universities, research institutions, and or other forms of information zoologic exhibitions, and also by technology. Written comments should importers of nonhuman primate trophy be received within 60 days of this materials, such as hunters or DEPARTMENT OF HEALTH AND notice. taxidermists, to request permits for the HUMAN SERVICES importation of etiologic agents, hosts, or Proposed Project Centers for Disease Control and vectors of human disease. The Prevention Importation of Transportation of Application for Permit to Import or Etiologic Agents (42 CFR 71.54)—(OMB Transport Etiologic Agents, Hosts, or Control No. 0920–0199 exp. 1/31/ Vectors of Human Disease requests [60Day–FY10–0199] 2011)—Extension—Office of Public applicant and sender contact information; description of material for Proposed Data Collections Submitted Health Preparedness and Response importation; facility isolation and for Public Comment and (OPHPR), Centers for Disease Control containment information; and personnel Recommendations and Prevention (CDC). qualifications. Background and Brief Description In compliance with the requirement The Application for Permit to Import of section 3506(c)(2)(A) of the The Foreign Quarantine Regulations or Transport Live Bats will be used by Paperwork Reduction Act of 1995 for (42 CFR part 71) set forth provisions to laboratory facilities such as those opportunity for public comment on prevent the introduction, transmission, operated by government agencies, proposed data collection projects, the and spread of communicable disease universities, research institutions, and Centers for Disease Control and from foreign countries into the United zoologic exhibitions entities to request Prevention (CDC) will publish periodic States. Subpart F—Importations— importation and subsequent distribution summaries of proposed projects. To contains provisions for importation of after importation of live bats. The request more information on the etiologic agents, hosts, and vectors (42 Application for Permit to Import or proposed projects or to obtain a copy of CFR part 71.54), requiring persons that Transport Live Bats requests applicant the data collection plans and import these materials to obtain a and sender contact information; a instruments, call 404–639–5960 and permit issued by the CDC. This request description and intended use of bats to send comments to Maryam I. Daneshvar, is for the information collection be imported; facility isolation and CDC Reports Clearance Officer, 1600 requirements contained in 42 CFR 71.54 containment information; and personnel Clifton Road, MS–D74, Atlanta, GA for issuance of permits by CDC to qualifications. 30333 or send an e-mail to importers of etiologic agents, hosts, or There is no cost to respondents except [email protected]. vectors of human disease. their time.

ESTIMATED ANNUALIZED BURDEN HOURS

Average No. of No. of burden per Total burden Respondents respondents responses per response (in hours) respondent (in hours)

Applicants ...... 2,000 1 20/60 667 Applicants ...... 10 1 20/60 3

Total ...... 669

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Date: July 8, 2010. Management and Budget, Washington, A three-year approval is being sought Carol Walker, DC 20503 or by fax to (202) 395–5806. with the current data collection Acting Reports Clearance Officer, Centers for Written comments should be received instrument. The data collection Disease Control and Prevention. within 30 days of this notice. instrument has been valuable in [FR Doc. 2010–17267 Filed 7–14–10; 8:45 am] assessing performance and capacity and Proposed Project BILLING CODE 4163–18–P identifying areas for improvement. National Public Health Performance From 1998–2002, the National Public Standards Program Local Public Health Health Performance Standards Program DEPARTMENT OF HEALTH AND System Assessment (OMB 0920–0555 convened workgroups with the National HUMAN SERVICES exp. 8/31/10)—Extension—Office of Association of County and City Health State, Tribal, Local and Territorial Centers for Disease Control and Officials (NACCHO), The Association of Support, Centers for Disease Control Prevention State and Territorial Health Officials and Prevention (CDC). (ASTHO), the National Association of [30Day–10–0555] Background and Brief Description Local Boards of Health (NALBOH), the American Public Health Association Agency Forms Undergoing Paperwork The Office of State, Tribal, Local and (APHA), and the Public Health Reduction Act Review Territorial Support is proposing to Foundation (PHF) to develop The Centers for Disease Control and extend the formal, voluntary data performance standards for public health Prevention (CDC) publishes a list of collection that assesses the capacity of systems based on the essential services information collection requests under local public health systems to deliver of public health. In 2005, CDC review by the Office of Management and the essential services of public health. reconvened workgroups with these Budget (OMB) in compliance with the Local health departments will respond same organizations to revise the data Paperwork Reduction Act (44 U.S.C. to the survey on behalf of the collective collection instruments, in order to Chapter 35). To request a copy of these body of representatives from the local ensure the standards remain current and requests, call the CDC Reports Clearance public health system. Electronic data improve user friendliness. There is no Officer at (404) 639–5960 or send an submission will be used when local cost to the respondent, other than their e-mail to [email protected]. Send written public health agencies complete the time. The estimated annualized burden comments to CDC Desk Officer, Office of public health assessment. hours are 5600.

ESTIMATE OF ANNUALIZED BURDEN HOURS

Average No. of No. of burden per Type of respondents Form name respondents responses per response respondent (in hours)

Local Public Health System ...... Local Public Health System Performance As- 350 1 16 sessment Instrument.

Dated: July 9, 2010. Management and Budget, Washington, by CDC’s National Center for Chronic Thelma Sims, DC or by fax to (202) 395–5806. Written Disease Prevention and Health Acting Reports Clearance Officer, Centers for comments should be received within 30 Promotion (NCCDPHP). Partnerships Disease Control and Prevention. days of this notice. and collaboration with other Federal agencies, nongovernmental [FR Doc. 2010–17273 Filed 7–14–10; 8:45 am] Proposed Project BILLING CODE 4163–18–P organizations, local communities, Monitoring and Reporting System for public and private sector organizations, Chronic Disease Prevention and Control and major voluntary associations have DEPARTMENT OF HEALTH AND Programs—New—National Center for been critical to the success of these HUMAN SERVICES Chronic Disease Prevention and Health efforts. Promotion (NCCDPHP), Centers for CDC seeks OMB approval for three Centers for Disease Control and Disease Control and Prevention (CDC). years to collect progress and activity Prevention information from health departments Background and Brief Description funded for four program areas: Tobacco [30-Day–10–10DT] Although chronic diseases are among control, diabetes prevention and Agency Forms Undergoing Paperwork the most common and costly health control, Healthy Communities, and Reduction Act Review problems, they are also among the most state-based behavioral risk factor preventable. The Centers for Disease surveillance. Information will be The Centers for Disease Control and Control and Prevention (CDC) works collected electronically through a new, Prevention (CDC) publishes a list of with states, territories, tribal electronic Management Information information collection requests under organizations, and the District of System (MIS). Information will be review by the Office of Management and Columbia (collectively referred to as collected on each program area’s Budget (OMB) in compliance with the ‘‘state-based’’ programs) to develop, objectives, planning activities, Paperwork Reduction Act (44 U.S.C. implement, manage, and evaluate resources, partnerships, policy and Chapter 35). To request a copy of these chronic disease prevention and control environmental strategies for preventing requests, call the CDC Reports Clearance programs. Support and guidance for or controlling chronic diseases, and Officer at (404) 639–5960 or send an e- these programs have been provided progress toward meeting goals. The new mail to [email protected]. Send written through cooperative agreement funding MIS harmonizes the progress reporting comments to CDC Desk Officer, Office of and technical assistance, administered framework for all program areas and

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will support the collection of accurate, exp. 4/30/2013), which are being phased District of Columbia, Puerto Rico, and reliable, uniform and timely out. the U.S. Virgin Islands. All awardees information. The MIS will generate a CDC will use the information will report on tobacco control, diabetes variety of routine and customizable collection to monitor each program’s prevention and control, behavioral risk reports that will allow each State or progress and use of federal funds, to factor surveillance, and Healthy program to summarize its activities and identify strengths and weaknesses, to Communities, with the exception of the progress. CDC will also have the make adjustments in the type and level District of Columbia, which is not capacity to generate reports that of technical assistance provided to currently participating in Healthy programs, and to respond to inquiries. describe activities across multiple States Communities. Respondents will use the information and/or programs. The new MIS will collection to manage and coordinate Information will be collected replace two previously approved their activities and to improve their electronically twice per year. There are systems used by tobacco control efforts to prevent and control chronic no costs to respondents other than their programs (OMB No. 0920–0601, exp. diseases. time. The total estimated annualized 5/31/2010) and diabetes prevention and The initial set of respondents will be burden hours are 2,532. control programs (OMB No. 0920–0479, health departments in all 50 states, the

ESTIMATED ANNUALIZED BURDEN TO RESPONDENTS

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

State Diabetes Program ...... 53 2 6 State Tobacco Program ...... 53 2 6 State BRFSS Program ...... 53 2 6 State Healthy Communities Program ...... 52 2 6

Dated: July 9, 2010. 202–395–7285, or e-mailed to the authority of sections 4, 5, and 6 of Thelma Sims, [email protected]. All the Fair Packaging and Labeling Act (the Reports Clearance Officer, Centers for Disease comments should be identified with the FPLA) (15 U.S.C. 1453, 1454, and 1455) Control and Prevention. OMB control number 0910–0381. Also and under sections 201, 301, 402, 403, [FR Doc. 2010–17265 Filed 7–14–10; 8:45 am] include the FDA docket number found 409, 411, 701, and 721 of the Federal BILLING CODE 4163–18–P in brackets in the heading of this Food, Drug, and Cosmetic Act (the act) document. (21 U.S.C. 321, 331, 342, 343, 348, 350, 371, and 379e). Most of these FOR FURTHER INFORMATION CONTACT: regulations derive from section 403 of DEPARTMENT OF HEALTH AND Jonna Capezzuto, Office of Information the act, which provides that a food HUMAN SERVICES Management, Food and Drug product shall be deemed to be Administration, 1350 Piccard Dr., PI50– Food and Drug Administration misbranded if, among other things, its 400W, Rockville, MD 20850, 301–796– label or labeling fails to bear certain [Docket No. FDA–2009–N–0296] 3794, required information concerning the [email protected]. Agency Information Collection food product, is false or misleading in Activities; Submission for Office of SUPPLEMENTARY INFORMATION: In any particular, or bears certain types of Management and Budget Review; compliance with 44 U.S.C. 3507, FDA unauthorized claims. The disclosure Comment Request; Food Labeling has submitted the following proposed requirements and other collections of Regulations collection of information to OMB for information in the regulations in parts review and clearance. 101, 102, 104, and 105 are necessary to AGENCY: Food and Drug Administration, Food Labeling Regulations—21 CFR ensure that food products produced or HHS. sold in the United States are in Parts 101, 102, 104, and 105 (OMB ACTION: Notice. compliance with the labeling provisions Control Number 0910–0381)—Extension of the act and the FPLA. SUMMARY: The Food and Drug FDA regulations require food Section 101.3 of FDA’s food labeling Administration (FDA) is announcing producers to disclose to consumers and regulations requires that the label of a that a proposed collection of others specific information about food product in packaged form bear a information has been submitted to the themselves or their products on the statement of identity (i.e., the name of Office of Management and Budget label or labeling of their products. the product), including, as appropriate, (OMB) for review and clearance under Related regulations require that food the form of the food or the name of the the Paperwork Reduction Act of 1995. producers retain records establishing food imitated. Section 101.4 prescribes DATES: Fax written comments on the the basis for the information contained requirements for the declaration of collection of information by August 16, in the label or labeling of their products ingredients on the label or labeling of 2010. and provide those records to regulatory food products in packaged form. Section ADDRESSES: To ensure that comments on officials. Finally, certain regulations 101.5 requires that the label of a food the information collection are received, provide for the submission of food product in packaged form specify the OMB recommends that written labeling petitions to FDA. FDA’s food name and place of business of the comments be faxed to the Office of labeling regulations under parts 101, manufacturer, packer, or distributor Information and Regulatory Affairs, 102, 104, and 105 (21 CFR parts 101, and, if the food producer is not the OMB, Attn: FDA Desk Officer, FAX: 102, 104, and 105) were issued under manufacturer of the food product, its

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connection with the food product. this information must be provided to Sections 101.54, 101.56, 101.60, Section 101.9 requires that nutrition consumers or regulatory officials upon 101.61, and 101.62 specify information information be provided for all food request. Section 101.13(q)(5) requires that must be disclosed as a condition for products intended for human that restaurants document and provide making particular nutrient content consumption and offered for sale, unless to appropriate regulatory officials, upon claims. Section 101.67 provides for the an exemption in § 101.9(j) applies to the request, the basis for any nutrient use of nutrient content claims for butter, product. Section 101.9(g)(9) also content claims they have made for the and cross-references requirements in provides for the submission to FDA of foods they sell. other regulations for ingredient requests for alternative approaches to Sections 101.14(d)(2) and (d)(3) declaration (§ 101.4) and disclosure of nutrition labeling. Finally, § 101.9(j)(18) provide for the disclosure of nutrition information concerning performance provides for the submission to FDA of information in accordance with § 101.9 characteristics (§ 101.13(d)). Section notices from firms claiming the small and, under some circumstances, certain 101.69 provides for the submission of a business exemption from nutrition other information as a condition for petition requesting that FDA authorize a labeling. FDA has developed Form FDA making a health claim for a food particular nutrient content claim by 3570 to assist small businesses in product. Section 101.15 provides that, if regulation. Section 101.70 provides for claiming the small business exemption the label of a food product contains any the submission of a petition requesting from nutrition labeling. The form representation in a foreign language, all that FDA authorize a particular health contains all the elements required by words, statements, and other claim by regulation. Section § 101.9(j)(18). information required by or under 101.77(c)(2)(ii)(D) requires the Section 101.10 requires that authority of the act to appear on the disclosure of the amount of soluble fiber restaurants provide nutrition label shall appear thereon in both the per serving in the nutrition labeling of information, upon request, for any food foreign language and in English. Section a food bearing a health claim about the or meal for which a nutrient content 101.22 contains labeling requirements relationship between soluble fiber and a claim or health claim is made. Section for the disclosure of spices, flavorings, reduced risk of coronary heart disease. 101.12(b) provides the reference amount colorings, and chemical preservatives in Section 101.79(c)(2)(iv) requires the that is used for determining the serving food products. Section 101.22(i)(4) sets disclosure of the amount of folate per sizes for specific products, including forth reporting and recordkeeping serving in the nutrition labeling of a baking powder, baking soda, and pectin. requirements pertaining to certifications food bearing a health claim about the Section 101.12(e) provides that a for flavors designated as containing no relationship between folate and a manufacturer that adjusts the reference artificial flavor. Section 101.30 specifies reduced risk of neural tube defects. amount customarily consumed (RACC) the conditions under which a beverage Section 101.100(d) provides that any agreement that forms the basis for an of an aerated food for the difference in that purports to contain any fruit or density of the aerated food relative to exemption from the labeling vegetable juice must declare the the density of the appropriate requirements of section 403(c), (e), (g), percentage of juice present in the nonaerated reference food must be (h), (i), (k), and (q) of the act be in beverage and the manner in which the prepared to show FDA detailed writing and that a copy of the agreement declaration is to be made. Section protocols and records of all data that be made available to FDA upon request. 102.33 specifies the common or usual were used to determine the density- Section 101.100 also contains reporting name for beverages that contain fruit or adjusted RACC. Section 101.12(g) and disclosure requirements as vegetable juice. requires that the label or labeling of a conditions for claiming certain labeling food product disclose the serving size Section 101.36 requires that nutrition exemptions (e.g., § 101.100(h)). that is the basis for a claim made for the information be provided for dietary Section 101.105 specifies product if the serving size on which the supplements offered for sale, unless an requirements for the declaration of the claim is based differs from the RACC. exemption in § 101.36(h) applies. net quantity of contents on the label of Section 101.12(h) provides for the Section 101.36(f)(2) cross-references the a food in packaged form and prescribes submission of petitions to FDA to provisions in § 101.9(g)(9) for the conditions under which a food whose request changes in the reference submission to FDA of requests for label does not accurately reflect the amounts defined by regulation. alternative approaches to nutrition actual quantity of contents may be sold, Section 101.13 requires that nutrition labeling. Also, § 101.36(h)(2) cross- with appropriate disclosures, to an information be provided in accordance references the provisions in institution operated by Federal, State, or with § 101.9 for any food product for § 101.9(j)(18) for the submission of small local government. Section 101.108 which a nutrient content claim is made. business exemption notices. As noted provides for the submission to FDA of Under some circumstances, § 101.13 previously, FDA has developed Form a written proposal requesting a also requires the disclosure of other FDA 3570 to assist small businesses in temporary exemption from certain types of information as a condition for claiming the small business exemption requirements of § 101.9 and § 105.66 for the use of a nutrient content claim. For from nutrition labeling. The form the purpose of conducting food labeling example, under § 101.13(j), if the claim contains all the elements required by experiments with FDA’s authorization. compares the level of a nutrient in the § 101.36(h)(2). Regulations in part 102 define the food with the level of the same nutrient Section 101.42 requests that food information that must be included as in another ‘‘reference’’ food, the claim retailers voluntarily provide nutrition part of the statement of identity for must also disclose the identity of the information for raw fruits, vegetables, particular foods and prescribe related reference food, the amount of the and fish at the point of purchase, and labeling requirements for some of these nutrient in each food, and the § 101.45 contains guidelines for foods. For example, § 102.22 requires percentage or fractional amount by providing such information. Also, that the name of a protein hydrolysate which the amount of the nutrient in the § 101.45(c) provides for the submission shall include the identity of the food labeled food differs from the amount of of nutrient data bases and proposed source from which the protein was the nutrient in the reference food. It also nutrition labeling values for raw fruit, derived. requires that when this comparison is vegetables, and fish to FDA for review Part 104, which pertains to nutritional based on an average of food products, and approval. quality guidelines for foods, cross-

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references several labeling provisions in Some of the regulations affect food statements or to grant exemptions from part 101 but contains no separate retailers, such as supermarkets and certain labeling requirements. information collection requirements. restaurants. Recordkeeping requirements enable Part 105 contains special labeling The purpose of the food labeling FDA to monitor the basis upon which requirements for hypoallergenic foods, requirements is to allow consumers to certain label statements are made for infant foods, and certain foods food products and whether those represented as useful in reducing or be knowledgeable about the foods they purchase. Nutrition labeling provides statements are in compliance with the maintaining body weight. requirements of the act or the FPLA. The disclosure and other information information for use by consumers in collection requirements in the selecting a nutritious diet. Other In the Federal Register of July 15, previously mentioned regulations are information enables a consumer to 2009 (74 FR 34353), FDA published a placed primarily upon manufacturers, comparison shop. Ingredient 60-day notice requesting public packers, and distributors of food information also enables consumers to comment on the proposed collection of products. Because of the existence of avoid substances to which they may be information. No comments were exemptions and exceptions, not all of sensitive. Petitions or other requests received on this information collection. the requirements apply to all food submitted to FDA provide the basis for FDA estimates the burden of this producers or to all of their products. the agency to permit new labeling collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

21 CFR Section and Part/Form Annual Frequency Total Annual Hours per No. No. of Respondents per Response Responses Response Total Hours

101.3, 101.22, 102 and 104 25,000 1.03 25,750 .5 12,875

101.4, 101.22, 101.100, 102, 104 and 105 25,000 1.03 25,750 1 25,750

101.5 25,000 1.03 25,750 0.25 6,438

101.9, 101.13(n), 101.14(d)(3), 101.62, and 104 25,000 1.03 25,750 4 103,000

101.9(g)(9 and 101.36(f)(2) 12 1 12 4 48

101.9(j)(18) and 101.36(h)(2) Form FDA 3570 10,000 1 10,000 8 80,000

101.10 300,000 1.5 450,000 0.25 112,500

101.12(b) 29 2.3 67 1 67

101.12(e) 25 1 25 1 25

101.12(g) 5,000 1 5,000 1 5,000

101.12(h) 5 1 5 80 400

101.13(d)(1) and 101.67 200 1 200 1 200

101.13(j)(2), 101.13(k), 101.54, 101.56, 101.60, 101.61, and 101.62 5,000 1 5,000 1 5,000

101.13(q)(5) 300,000 1.5 450,000 0.75 337,500

101.14(d)(2) 300,000 1.5 450,000 0.75 337,500

101.15 160 10 1,600 8 12,800

101.22(i)(4) 25 1 25 1 25

101.30 and 102.33 1,500 5 7,500 1 7,500

101.36 300 40 12,000 4 48,000

101.42 and 101.45 1,000 1 1,000 0.5 500

101.45(c) 5 4 20 4 80

101.69 3 1 3 25 75

101.70 5 1 5 80 400

101.79(c)(2)(i)(D) 1,000 1 1,000 0.25 250

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TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1—Continued

21 CFR Section and Part/Form Annual Frequency Total Annual Hours per No. No. of Respondents per Response Responses Response Total Hours

101.79(c)(2)(iv) 100 1 100 0.25 25

101.100(d) 1,000 1 1,000 1 1,000

101.105 and 101.100(h) 25,000 1.03 25,750 0.5 12,875

101.108 1 1 1 40 40

Total 1,109,873 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

TABLE 2.—ESTIMATED ANNUAL RECORDKEEPING BURDEN1

No. of Record- Annual Frequency Total Annual 21 CFR Section keepers per Recordkeeping Records Hours per Record Total Hours

101.12(e) 25 1 25 1 25

101.13(q)(5) 300,000 1.5 450,000 0.75 337,500

101.14(d)(2) 300,000 1.5 450,000 0.75 337,500

101.22(i)(4) 25 1 25 1 25

101.100(d)(2) 1,000 1 1,000 1 1,000

101.105(t) 100 1 100 1 100

Total 676,150 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

The estimated annual reporting and would occur in the normal course of DEPARTMENT OF HEALTH AND recordkeeping burdens are based on activities. HUMAN SERVICES agency communications with industry In this request for extension of OMB Food and Drug Administration and FDA’s knowledge of and experience approval under the PRA, FDA is no with food labeling and the submission longer combining the burden hours [Docket No. FDA–2010–N–0185] of petitions and requests to the agency. associated with OMB Control Numbers Where an agency regulation implements 0910–0395 (collection titled, ‘‘Food Agency Information Collection an information collection requirement Labeling: Nutrition Labeling of Dietary Activities; Submission for Office of in the act or the FPLA, only any Supplements on a ‘Per Day’ Basis’’) and Management and Budget Review; Comment Request; Tobacco Health additional burden attributable to the 0910–0515 (collection titled, ‘‘Food Document Submission regulation has been included in FDA’s Labeling: Trans Fatty Acids in Nutrition burden estimate. Labeling’’), with the burden hours AGENCY: Food and Drug Administration, No burden has been estimated for approved under OMB Control Number HHS. those requirements where the 0910–0381 (collection titled, ‘‘Food ACTION: Notice. information to be disclosed is Labeling Regulations’’) as announced information that has been supplied by previously. Such consolidation may SUMMARY: The Food and Drug FDA. Also, no burden has been occur in the future. Administration (FDA) is announcing estimated for information that is that a proposed collection of Dated: July 9, 2010. disclosed to third parties as a usual and information has been submitted to the customary part of a food producer’s Leslie Kux, Office of Management and Budget normal business activities. Under 5 CFR Acting Assistant Commissioner for Policy. (OMB) for review and clearance under 1320.3(c)(2), the public disclosure of [FR Doc. 2010–17229 Filed 7–14–10; 8:45 am] the Paperwork Reduction Act of 1995 information originally supplied by the BILLING CODE 4160–01–S (the PRA). Federal Government to the recipient for DATES: Fax written comments on the the purpose of disclosure to the public collection of information by August 16, is not a collection of information. Under 2010. 5 CFR 1320.3(b)(2), the time, effort, and ADDRESSES: To ensure that comments on financial resources necessary to comply the information collection are received, with a collection of information are OMB recommends that written excluded from the burden estimate if comments be faxed to the Office of the reporting, recordkeeping, or Information and Regulatory Affairs, disclosure activities needed to comply OMB, Attn: FDA Desk Officer, FAX: are usual and customary because they 202–395–7285, or e-mailed to

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[email protected]. All products, their constituents (including for this information collection. Based on comments should be identified with the smoke constituents), ingredients, comments indicating that the burden OMB control number 0910–0654. Also components, and additives.’’ estimate was too low, FDA has adjusted include the FDA docket number found Information required under section its original burden estimate from 1.0 in brackets in the heading of this 904(a)(4) of the act must be submitted to hour per response to 200 hours per document. FDA beginning December 22, 2009. response. FDA also increased the annual FOR FURTHER INFORMATION CONTACT: FDA issued a draft guidance frequency per response from 1 to 4 Jonna Capezzuto, Office of Information document entitled ‘‘Tobacco Health (quarterly). Management, Food and Drug Document Submission’’’ on December FDA is maintaining the original Administration, 1350 Piccard Dr., PI50– 28, 2009 (74 FR 68629) to assist persons estimate of the number of respondents 400B, Rockville, MD 20850, 301–796– making certain document submissions at 10. FDA is basing its estimates on the 3794, to FDA under section 904(a)(4) of the total number of tobacco firms it is aware [email protected]. act. The guidance document was of, its experience with document finalized on April 20, 2010 (75 FR production, and comments received in SUPPLEMENTARY INFORMATION: In response to the draft guidance compliance with 44 U.S.C. 3507, FDA 20606). While electronic submission of document published on December 28, has submitted the following proposed tobacco health documents is not 2009. collection of information to OMB for required, FDA designed the eSubmitter review and clearance. application as an alternative for mailing In the Federal Register of April 20, documents. This electronic tool allows 2010 (75 FR 20603), FDA published a Tobacco Health Document for importation of large quantities of 60-day notice requesting public Submission—(OMB Control Number structured data, attachments of files comment on the proposed collection of 0910–0654)—Extension (e.g., in portable document format information. FDA received one On June 22, 2009, the President (PDFs) and certain media files), and comment in response to the 60-day signed the Tobacco Control Act (Public automatic acknowledgement of FDA’s notice soliciting public comment on the Law 111–31) into law. The Tobacco receipt of submissions. FDA also extension of OMB approval for this Control Act granted FDA important new developed a paper form (FDA Form information collection. The comment authority to regulate the manufacture, 3743) as an alternative submission tool. stated that the classification/coding marketing, and distribution of tobacco Both the eSubmitter application and the recommendations will impose burdens products to protect the public health paper form can be accessed at http:// that significantly exceed the burden generally and to reduce tobacco use by www.fda.gov/tobacco. estimate of 200 hours and will likely minors. Among its many provisions, the On September 1, 2009 (74 FR 45219), inundate FDA with information with Tobacco Control Act added section FDA published notice in the Federal little incremental value. The estimated 904(a)(4) to the Federal Food, Drug, and Register announcing that a proposed 200 hours per response burden is based Cosmetic Act (the act) (21 U.S.C. collection of information had been on the average burden estimate among 387d(a)(4)), requiring submission of submitted to OMB for emergency all 10 respondents. Therefore, on an documents related to certain effects of processing under the PRA. On individual basis, the actual burden per tobacco products. September 15, 2009 (74 FR 47257), FDA respondent may be higher or lower than Section 904(a)(4) of the act requires published a notice correcting the length the 200 hours estimate since it is an each tobacco product manufacturer or of the comment period, keeping it open average value. FDA currently is importer, or agent thereof, to submit all until October 1, 2009. On October 13, evaluating the classification/coding documents developed after June 22, 2009 (74 FR 52495), FDA published a recommendations and will revisit this 2009, ‘‘that relate to health, notice reopening the comment period issue in future guidance. toxicological, behavioral, or physiologic until October 26, 2009. On January 7, FDA estimates the burden of this effects of current or future tobacco 2010, FDA received emergency approval collection of information as follows:

TABLE 1.—ESTIMATED ANNUAL REPORTING BURDEN1

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

Tobacco Health Document Submission and Form FDA 3743 10 4 40 200 8,000 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

Dated: July 9, 2010. DEPARTMENT OF HEALTH AND announces the establishment of the Leslie Kux, HUMAN SERVICES Interagency Pain Research Coordinating Acting Assistant Commissioner for Policy. Committee. National Institutes of Health [FR Doc. 2010–17230 Filed 7–14–10; 8:45 am] Public Law 111–148 (‘‘Patient BILLING CODE 4160–01–S Office of the Director; Notice of Protection and Affordable Care Act’’), Establishment Title IV, as it amends Part B of Title IV of the Public Health Service Act (42 Pursuant to the Federal Advisory USC 284 et seq.) requires the committee Committee Act, as amended (5 U.S.C. to: (a) Develop a summary of advances Appendix 2), the Director, Office of in pain care research supported or Federal Advisory Committee Policy, conducted by Federal agencies relevant National Institutes of Health (NIH), to the diagnosis, prevention, and

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treatment of pain and diseases and Name of Committee: Center for Scientific Contact Person: Brandt R. Burgess, PhD, disorders associated with pain; (b) Review Special Emphasis Panel. Member Scientific Review Officer, Scientific Review identify critical gaps in research on the Conflict: Topics in Bioengineering. Program, Division of Extramural Activities, symptoms and causes of pain; (c) make Date: July 28, 2010. National Institutes of Health/NIAID, 6700B Time: 1 p.m. to 2:30 p.m. Rockledge Drive, MSC 7616, Bethesda, MD recommendations to ensure that the Agenda: To review and evaluate grant 20892–7616, 301–451–2584, activities of the NIH and other Federal applications. [email protected]. agencies are free of unnecessary Place: National Institutes of Health, 6701 Name of Committee: National Institute of duplication of effort; (d) make Rockledge Drive, Bethesda, MD 20892, Allergy and Infectious Diseases Special recommendations on how best to (Telephone Conference Call). Emphasis Panel; ‘‘Ancillary Studies in disseminate information on pain care; Contact Person: Mark Caprara, PhD, Immunomodulation Clinical Trails’’. and (e) make recommendations on how Scientific Review Officer, Center for Date: August 12, 2010. to expand partnerships between public Scientific Review, National Institutes of Time: 10:30 a.m. to 5:30 p.m. and private entities to expand Health, 6701 Rockledge Drive, Room 5156, Agenda: To review and evaluate grant MSC 7844, Bethesda, MD 20892, 301–435– applications. collaborative, cross-cutting research. 1042, [email protected]. Place: National Institutes of Health, 6700B Duration of this committee is two This notice is being published less than 15 Rockledge Drive, Bethesda, MD 20817 years from the date the Charter is filed. days prior to the meeting due to the timing (Telephone Conference Call). limitations imposed by the review and Contact Person: Paul A. Amstad, PhD, Dated: July 9, 2010. funding cycle. Scientific Review Officer, Scientific Review Jennifer Spaeth, (Catalogue of Federal Domestic Assistance Program, Division of Extramural Activities, NIAID/NIH/DHHS, 6700B Rockledge Drive, Director, Office of Federal Advisory Program Nos. 93.306, Comparative Medicine; MSC 7616, Bethesda, MD 20892–7616, 301– Committee Policy. 93.333, Clinical Research, 93.306, 93.333, 402–7098, [email protected]. [FR Doc. 2010–17261 Filed 7–14–10; 8:45 am] 93.337, 93.393–93.396, 93.837–93.844, (Catalogue of Federal Domestic Assistance BILLING CODE 4140–01–P 93.846–93.878, 93.892, 93.893, National Institutes of Health, HHS) Program Nos. 93.855, Allergy, Immunology, and Transplantation Research; 93.856, Dated: July 8, 2010. Microbiology and Infectious Diseases DEPARTMENT OF HEALTH AND Jennifer Spaeth, Research, National Institutes of Health, HHS) HUMAN SERVICES Director, Office of Federal Advisory Dated: July 9, 2010. Committee Policy. National Institutes of Health Jennifer Spaeth, [FR Doc. 2010–17258 Filed 7–14–10; 8:45 am] Director, Office of Federal Advisory Center for Scientific Review; Notice of BILLING CODE 4140–01–P Committee Policy. Closed Meetings [FR Doc. 2010–17259 Filed 7–14–10; 8:45 am] BILLING CODE 4140–01–P Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as HUMAN SERVICES DEPARTMENT OF HEALTH AND amended (5 U.S.C. app.), notice is National Institutes of Health hereby given of the following meetings. HUMAN SERVICES The meetings will be closed to the National Institute of Allergy and National Institutes of Health public in accordance with the Infectious Diseases; Notice of Closed provisions set forth in sections Meetings Center for Scientific Review; Notice of 552b(c)(4) and 552b(c)(6), title 5 U.S.C., Closed Meetings as amended. The grant applications and Pursuant to section 10(d) of the the discussions could disclose Federal Advisory Committee Act, as Pursuant to section 10(d) of the confidential trade secrets or commercial amended (5 U.S.C. App.), notice is Federal Advisory Committee Act, as property such as patentable material, hereby given of the following meetings. amended (5 U.S.C. App.), notice is and personal information concerning The meetings will be closed to the hereby given of the following meetings. The meetings will be closed to the individuals associated with the grant public in accordance with the public in accordance with the applications, the disclosure of which provisions set forth in sections provisions set forth in sections would constitute a clearly unwarranted 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., invasion of personal privacy. as amended. The grant applications and as amended. The grant applications and the discussions could disclose Name of Committee: Center for Scientific the discussions could disclose confidential trade secrets or commercial Review Special Emphasis Panel; Member confidential trade secrets or commercial Conflict: Vaccines Against Microbial property such as patentable material, property such as patentable material, Diseases. and personal information concerning and personal information concerning Date: July 23, 2010. individuals associated with the grant individuals associated with the grant Time: 5:30 p.m. to 6 p.m. applications, the disclosure of which Agenda: To review and evaluate grant applications, the disclosure of which would constitute a clearly unwarranted would constitute a clearly unwarranted applications. invasion of personal privacy. Place: The River Inn, 924 25th Street, NW., invasion of personal privacy. Washington, DC 20037. Name of Committee: National Institute of Name of Committee: Center for Scientific Contact Person: Stephen M. Nigida, PhD, Allergy and Infectious Diseases Special Review Special Emphasis Panel; Member Scientific Review Officer, Center for Emphasis Panel; NIH Support for Conflict: Pharmacology, Plasticity and Scientific Review, National Institutes of Conferences and Scientific Meetings. Mental Disorders. Health, 6701 Rockledge Drive, Room 4212, Date: August 2–5, 2010. Date: July 20–21, 2010. MSC 7812, Bethesda, MD 20892, 301–435– Time: 11 a.m. to 4 p.m. Time: 9 a.m. to 3 p.m. 1222, [email protected]. Agenda: To review and evaluate grant Agenda: To review and evaluate grant This notice is being published less than 15 applications. applications. days prior to the meeting due to the timing Place: National Institutes of Health, 6700B Place: National Institutes of Health, 6701 limitations imposed by the review and Rockledge Drive, Bethesda, MD 20817 Rockledge Drive, Bethesda, MD 20892 funding cycle. (Virtual Meeting). (Virtual Meeting).

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Contact Person: Suzan Nadi, PhD, as required by the Paperwork Reduction (2) Evaluate the accuracy of the Scientific Review Officer, Center for Act of 1995. agencies estimate of the burden of the Scientific Review, National Institutes of proposed collection of information, Thomas Chase Garwood, III, Health, 6701 Rockledge Drive, Room 5217B, including the validity of the MSC 7846, Bethesda, MD 20892, 301–435– Chief Information Officer, National Protection methodology and assumptions used; 1259, [email protected]. and Programs Directorate, Department of This notice is being published less than 15 Homeland Security. (3) Enhance the quality, utility, and days prior to the meeting due to the timing [FR Doc. 2010–17277 Filed 7–14–10; 8:45 am] clarity of the information to be limitations imposed by the review and collected; and funding cycle. BILLING CODE 9110–9P–P Name of Committee: Center for Scientific (4) Minimize the burden of the Review Special Emphasis Panel; Early collection of information on those who Embryo Development Pluripotency. DEPARTMENT OF HOMELAND are to respond, including through the Date: July 26–27, 2010. SECURITY use of appropriate automated, Time: 8 a.m. to 5:30 p.m. electronic, mechanical, or other Agenda: To review and evaluate grant United States Immigration and technological collection techniques or applications. Customs Enforcement other forms of information technology, Place: National Institutes of Health, 6701 e.g., permitting electronic submission of Rockledge Drive, Bethesda, MD 20892 Agency Information Collection (Virtual Meeting). Activities: Extension of a Currently responses. Contact Person: Michael H Chaitin, PhD, Approved Information Collection; Overview of This Information Scientific Review Officer, Center for Comment Request Collection Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5202, ACTION: 30-Day Notice of Information (1) Type of Information Collection: MSC 7850, Bethesda, MD 20892, (301) 435– Collection for Review; Form I–333, Extension of a currently approved 0910, [email protected]. Information Collection. This notice is being published less than 15 Obligor Change of Address. days prior to the meeting due to the timing (2) Title of the Form/Collection: limitations imposed by the review and The Department of Homeland Obligor Change of Address. Security, U.S. Immigration and Customs funding cycle. (3) Agency form number, if any, and (Catalogue of Federal Domestic Assistance Enforcement (USICE), has submitted the following information collection request the applicable component of the Program Nos. 93.306, Comparative Medicine; Department of Homeland Security 93.333, Clinical Research, 93.306, 93.333, for review and clearance in accordance 93.337, 93.393–93.396, 93.837–93.844, with the Paperwork Reduction Act of sponsoring the collection: Form I–333. 93.846–93.878, 93.892, 93.893, National 1995. The information collection was U.S. Immigration and Customs Institutes of Health, HHS) previously published in the Federal Enforcement. Dated: July 8, 2010. Register on May 5, 2010 Vol. 75 No. 86, (4) Affected public who will be asked Jennifer Spaeth, 24720, allowing for a 60 day public or required to respond, as well as a brief Director, Office of Federal Advisory comment period. ICE received one abstract: Primary: Individuals or Committee Policy. comment during this period. Households. The information collected [FR Doc. 2010–17254 Filed 7–14–10; 8:45 am] The purpose of this notice is to allow on the Form I–333 is necessary for U.S. Immigration and Customs Enforcement BILLING CODE 4140–01–P an additional 30 days for public comments. Comments are encouraged (ICE) to provide immigration bond and will be accepted for thirty days obligors a standardized method to notify August 16, 2010. ICE of address updates. Upon receipt of DEPARTMENT OF HOMELAND the formatted information records will SECURITY Written comments and suggestions from the public and affected agencies then be updated to ensure accurate [Docket No. DHS–2008–0077] regarding items contained in this notice service of correspondence between ICE and especially with regard to the and the obligor. National Protection and Programs estimated public burden and associated (5) An estimate of the total number of Directorate; Infrastructure Protection response time should be directed to the respondents and the amount of time Data Call Survey; Correction Office of Information and Regulatory estimated for an average respondent to AGENCY: National Protection and Affairs, Office of Management and respond: 12,000 responses at 15 minutes Programs Directorate, DHS. Budget. Comments should be addressed (.25 hours) per response. to OMB Desk Officer, for United States ACTION: Notice; correction. (6) An estimate of the total public Immigration and Customs Enforcement, burden (in hours) associated with the SUMMARY: On December 22, 2009, the Department of Homeland Security, and collection: 3,000 annual burden hours. Department of Homeland Security sent via electronic mail to Requests for a copy of the proposed (DHS), National Protection and [email protected] or faxed information collection instrument, with Programs Directorate (NPPD), Office of to (202) 395–5806. instructions; or inquiries for additional Infrastructure Protection (IP), Written comments and suggestions information should be requested via Infrastructure Information Collection from the public and affected agencies email to: [email protected] with ‘‘ICE Division (IICD) published a 60-day concerning the proposed collection of Form I–333’’ in the subject line. comment period notice in the Federal information should address one or more Register at 74 FR 68070–68071 seeking of the following four points: Dated: July 8, 2010. comments for an information collection (1) Evaluate whether the proposed Joseph M. Gerhart, entitled, ‘‘IP Data Call.’’ This is a collection of information is necessary Chief, Records Management Branch, U.S. correction notice to correct the title of for the proper performance of the Immigration and Customs Enforcement, the published 60-day notice to read, ‘‘IP functions of the agency, including Department of Homeland Security. Data Call Survey.’’ There are no further whether the information will have [FR Doc. 2010–17208 Filed 7–14–10; 8:45 am] updates. This correction notice is issued practical utility; BILLING CODE 9111–28–P

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DEPARTMENT OF HOMELAND (4) Minimize the burden of the DEPARTMENT OF HOMELAND SECURITY collection of information on those who SECURITY are to respond, including through the United States Immigration and use of appropriate automated, United States Immigration and Customs Enforcement electronic, mechanical, or other Customs Enforcement technological collection techniques or Agency Information Collection Agency Information Collection Activities: Extension of a Currently other forms of information technology, Activities: Extension of a Currently Approved Information Collection; e.g., permitting electronic submission of Approved Information Collection; Comment Request responses. Comment Request Overview of This Information ACTION: ACTION: 60-Day Notice of Information 30–Day Notice of Information Collection Collection for Review; Form G–146, Collection for Review. Application for Nonimmigrant Checkout Letter; OMB (1) Type of Information Collection: Stay of Deportation or Removal, Form Control No. 1653–0020. Extension of a currently approved I–246, OMB No. 1653–0021. Information Collection. The Department of Homeland The Department of Homeland Security, U.S. Immigration and Customs (2) Title of the Form/Collection: Non- Security, U.S. Immigration and Customs Enforcement (USICE), will be Immigrant Checkout Letter. Enforcement (USICE), has submitted the following information collection request submitting the following information (3) Agency form number, if any, and for review and clearance in accordance collection request for review and the applicable component of the clearance in accordance with the with the Paperwork Reduction Act of Department of Homeland Security 1995. The information collection is Paperwork Reduction Act of 1995. The sponsoring the collection: Form G–146, Information Collection was previously published to obtain comments from the U.S. Immigration and Customs public and affected agencies. Comments published in the Federal Register on Enforcement. May 5, 2010 Vol. 75 No. 86, 24721, are encouraged and will be accepted for allowing for a 60-day public comment (4) Affected public who will be asked sixty days until September 13, 2010. Written comments and suggestions period. USICE received no comments on or required to respond, as well as a brief regarding items contained in this notice, this Information Collection from the abstract: Primary: Individual or and especially with regard to the public during this 60-day period. Households. When an alien (other than estimated public burden and associated The purpose of this notice is to allow one who is required to depart under response time should be directed to the an additional 30 days for public safeguards) is granted the privilege of Department of Homeland Security comments. Comments are encouraged voluntary departure without the (DHS), Joseph M. Gerhart, Chief, and will be accepted for thirty days issuance of an Order to Show Cause, a Records Management Branch, U.S. August 16, 2010. control card is prepared. If, after a Immigration and Customs Enforcement, Written comments and suggestions certain period of time, a verification of 500 12th Street, SW., Room 3138, from the public and affected agencies departure is not received, actions are Washington, DC 20536; (202) 732–6337. regarding items contained in this notice taken to locate the alien or ascertain his Comments are encouraged and will be and especially with regard to the or her whereabouts. Form G–146 is used accepted for sixty days until [Insert date estimated public burden and associated to inquire of persons in the United of the 60th day from the date that this response time should be directed to the States or abroad regarding the notice is published in the Federal Office of Information and Regulatory whereabouts of the alien. Register]. Written comments and Affairs, Office of Management and (5) An estimate of the total number of suggestions from the public and affected Budget. Comments should be addressed agencies concerning the proposed to the OMB Desk Officer for U.S. respondents and the amount of time estimated for an average respondent to collection of information should address Immigration and Customs Enforcement, one or more of the following four points: respond: 20,000 responses at 10 minutes Department of Homeland Security, and (1) Evaluate whether the proposed sent via electronic mail to (.16) per response. collection of information is necessary _ oira [email protected] or faxed (6) An estimate of the total public for the proper performance of the to (202) 395–5806. burden (in hours) associated with the functions of the agency, including Written comments and suggestions collection: 3,220 annual burden hours. whether the information will have from the public and affected agencies Requests for a copy of the proposed practical utility; concerning the proposed collection of information collection instrument, with (2) Evaluate the accuracy of the information should address one or more agencies estimate of the burden of the instructions; or inquiries for additional of the following four points: proposed collection of information, information regarding this Information (1) Evaluate whether the proposed including the validity of the Collection should be requested via collection of information is necessary methodology and assumptions used; for the proper performance of the email to: [email protected] with ‘‘ICE (3) Enhance the quality, utility, and functions of the agency, including Form G–146’’ in the subject line. clarity of the information to be whether the information will have Dated: July 8, 2010. collected; and practical utility; Joseph M. Gerhart, (4) Minimize the burden of the (2) Evaluate the accuracy of the collection of information on those who Chief, Records Management Branch, U.S. agency’s estimate of the burden of the are to respond, including through the Immigration and Customs Enforcement, proposed collection of information, Department of Homeland Security. use of appropriate automated, including the validity of the electronic, mechanical, or other [FR Doc. 2010–17209 Filed 7–14–10; 8:45 am] methodology and assumptions used; technological collection techniques or (3) Enhance the quality, utility, and BILLING CODE 9111–28–P other forms of information technology, clarity of the information to be e.g., permitting electronic submission of collected; and responses.

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Overview of this Information Collection Management and Budget (OMB) for (2) Title of the Form/Collection: (1) Type of Information Collection: review and clearance in accordance Application for Status as Temporary Renewal of information collection. with the Paperwork Reduction Act of Resident under Section 254A of the (2) Title of the Form/Collection: 1995. The information collection was Immigration and Nationality Act. Application for Stay of Deportation or previously published in the Federal (3) Agency form number, if any, and Removal. Register on April 23, 2010, at 75 FR the applicable component of the (3) Agency form number, if any, and 21340, allowing for a 60-day public Department of Homeland Security the applicable component of the comment period. USCIS did not receive sponsoring the collection: Form I–687; Department of Homeland Security any comments for this information U.S. Citizenship and Immigration sponsoring the collection: I–246, U.S. collection. Services (USCIS). Immigration and Customs Enforcement. The purpose of this notice is to allow (4) Affected public who will be asked (4) Affected public who will be asked an additional 30 days for public or required to respond, as well as a brief or required to respond, as well as a brief comments. Comments are encouraged abstract: Primary: Individuals or abstract: Primary: Individual or and will be accepted until August 16, Households. The information collection Households, Business or other non- 2010. This process is conducted in on Form I–687 is required to verify the profit. The information collected on the accordance with 5 CFR 1320.10. applicant’s eligibility for temporary Form I–246 is necessary for U.S. Written comments and/or suggestions status, and if the applicant is deemed Immigration and Customs Enforcement regarding the item(s) contained in this eligible, to grant him or her the benefit (ICE) to make a determination that the notice, especially regarding the sought. eligibility requirements for a request for estimated public burden and associated (5) An estimate of the total number of a stay of deportation or removal are met response time, should be directed to the respondents and the amount of time by the applicant. Department of Homeland Security estimated for an average respondent to (5) An estimate of the total number of (DHS), and to the Office of Management respond: 50 responses at 1 hour and 10 respondents and the amount of time and Budget (OMB) USCIS Desk Officer. minutes (1.166 hours) per response. estimated for an average respondent to Comments may be submitted to: USCIS, (6) An estimate of the total public respond: 10,000 responses at 30 minutes Chief, Regulatory Products Division, 111 burden (in hours) associated with the (.50 hours) per response. Massachusetts Avenue, Washington, DC collection: 58 annual burden hours. (6) An estimate of the total public 20529–2210. Comments may also be If you need a copy of the information burden (in hours) associated with the submitted to DHS via facsimile to 202– collection instrument, please visit the collection: 5,000 annual burden hours. 272–8352 or via e-mail at rfs.regs@ Web site at: http://www.regulations.gov. Requests for a copy of the proposed dhs.gov, and to the OMB USCIS Desk We may also be contacted at: USCIS, information collection instrument, with Officer via facsimile at 202–395–5806 or Regulatory Products Division, 111 instructions; comments or inquiries for via e-mail at oira_submission@ Massachusetts Avenue, NW., additional information should be omb.eop.gov. When submitting Washington, DC 20529–2210; requested via email to: comments by e-mail please make sure to Telephone 202–272–8377. [email protected] with ‘‘ICE Form add OMB Control Number 1615–0090 in Dated: July 12, 2010. the subject box. Written comments and I–246’’ in the subject line. Sunday Aigbe, suggestions from the public and affected Dated: July 8, 2010. agencies should address one or more of Chief, Regulatory Products Division, U.S. Joseph M. Gerhart, Citizenship and Immigration Services, the following four points: Department of Homeland Security. Chief, Records Management Branch, U.S. (1) Evaluate whether the proposed Immigration and Customs Enforcement, collection of information is necessary [FR Doc. 2010–17306 Filed 7–14–10; 8:45 am] Department of Homeland Security. for the proper performance of the BILLING CODE 9111–97–P [FR Doc. 2010–17211 Filed 7–14–10; 8:45 am] functions of the agency, including BILLING CODE 9111–28–P whether the information will have DEPARTMENT OF HOMELAND practical utility; SECURITY (2) Evaluate the accuracy of the DEPARTMENT OF HOMELAND agencies estimate of the burden of the SECURITY U.S. Citizenship and Immigration proposed collection of information, Services U.S. Citizenship and Immigration including the validity of the Services methodology and assumptions used; Agency Information Collection (3) Enhance the quality, utility, and Activities: Form I–821, Extension of a Agency Information Collection clarity of the information to be Currently Approved Information Activities: Form I–687, Extension of a collected; and Collection; Comment Request Currently Approved Information (4) Minimize the burden of the Collection; Comment Request collection of information on those who ACTION: 30-Day Notice of Information are to respond, including through the Collection Under Review: Form I–821, ACTION: 30-Day Notice of Information use of appropriate automated, Application for Temporary Protected Collection Under Review: Form I–687, electronic, mechanical, or other Status; OMB Control No. 1615–0043. Application for Status as Temporary technological collection techniques or Resident Under Section 254A of the other forms of information technology, The Department of Homeland Immigration and Nationality Act; OMB e.g., permitting electronic submission of Security, U.S. Citizenship and Control No. 1615–0090. responses. Immigration Services (USCIS) will be submitting the following information The Department of Homeland Overview of This Information collection request to the Office of Security, U.S. Citizenship and Collection Management and Budget (OMB) for Immigration Services (USCIS) will be (1) Type of Information Collection: review and clearance in accordance submitting the following information Extension of a currently approved with the Paperwork Reduction Act of collection request to the Office of information collection. 1995. The information collection was

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previously published in the Federal (3) Agency form number, if any, and comment period. USCIS did not receive Register on April 22, 2010, at 75 FR the applicable component of the any comments for this information 21014, allowing for a 60-day public Department of Homeland Security collection. comment period. USCIS did not receive sponsoring the collection: Form I–821; The purpose of this notice is to allow any comments for this information U.S. Citizenship and Immigration an additional 30 days for public collection. Services (USCIS). comments. Comments are encouraged The purpose of this notice is to allow (4) Affected public who will be asked and will be accepted until August 16, an additional 30 days for public or required to respond, as well as a brief 2010. This process is conducted in comments. Comments are encouraged abstract: Primary: Individuals or accordance with 5 CFR 1320.10. and will be accepted until August 16, Households. Form I–821 is necessary in Written comments and/or suggestions 2010. This process is conducted in order for USCIS to make a regarding the item(s) contained in this accordance with 5 CFR 1320.10. determination that the applicant meets notice, especially regarding the Written comments and/or suggestions eligibility requirements and conditions. estimated public burden and associated regarding the item(s) contained in this (5) An estimate of the total number of response time, should be directed to the notice, especially regarding the respondents and the amount of time Department of Homeland Security estimated public burden and associated estimated for an average respondent to (DHS), and to the Office of Management response time, should be directed to the respond: 335,333 responses at 1 hour and Budget (OMB) USCIS Desk Officer. Department of Homeland Security and 30 minutes (1.5 hours) per Comments may be submitted to: USCIS, (DHS), and to the Office of Management response. Chief, Regulatory Products Division, 111 and Budget (OMB) USCIS Desk Officer. (6) An estimate of the total public Massachusetts Avenue, Washington, DC Comments may be submitted to: USCIS, burden (in hours) associated with the 20529–2210. Comments may also be Chief, Regulatory Products Division, 111 collection: 502,999 annual burden submitted to DHS via facsimile to 202– Massachusetts Avenue, Washington, DC hours. 272–8352 or via e-mail at 20529–2210. Comments may also be If you need a copy of the information [email protected], and to the OMB USCIS submitted to DHS via facsimile to 202– collection instrument, please visit the Desk Officer via facsimile at 202–395– 272–8352 or via e-mail at Web site at: http://www.regulations.gov. 5806 or via e-mail at [email protected], and to the OMB USCIS We may also be contacted at: USCIS, [email protected]. When Desk Officer via facsimile at 202–395– Regulatory Products Division, 111 submitting comments by e-mail please 5806 or via e-mail at Massachusetts Avenue, NW., make sure to add OMB Control Number [email protected]. When Washington, DC 20529–2210; 1615–0059 in the subject box. Written submitting comments by e-mail please Telephone 202–272–8377. comments and suggestions from the make sure to add OMB Control Number Dated: July 12, 2010. public and affected agencies should 1615–0043 in the subject box. Written Sunday Aigbe, address one or more of the following comments and suggestions from the four points: Chief, Regulatory Products Division, U.S. (1) Evaluate whether the proposed public and affected agencies should Citizenship and Immigration Services, address one or more of the following Department of Homeland Security. collection of information is necessary for the proper performance of the four points: [FR Doc. 2010–17305 Filed 7–14–10; 8:45 am] (1) Evaluate whether the proposed functions of the agency, including collection of information is necessary BILLING CODE 9111–97–P whether the information will have for the proper performance of the practical utility; functions of the agency, including DEPARTMENT OF HOMELAND (2) Evaluate the accuracy of the whether the information will have SECURITY agencies estimate of the burden of the practical utility; proposed collection of information, (2) Evaluate the accuracy of the U.S. Citizenship and Immigration including the validity of the agencies estimate of the burden of the Services methodology and assumptions used; proposed collection of information, (3) Enhance the quality, utility, and including the validity of the Agency Information Collection clarity of the information to be methodology and assumptions used; Activities: Form N–644, Extension of a collected; and (3) Enhance the quality, utility, and Currently Approved Information (4) Minimize the burden of the clarity of the information to be Collection; Comment Request collection of information on those who collected; and are to respond, including through the (4) Minimize the burden of the ACTION: 30-Day Notice of Information use of appropriate automated, collection of information on those who Collection Under Review: Form N–644, electronic, mechanical, or other are to respond, including through the Application for Posthumous technological collection techniques or use of appropriate automated, Citizenship; OMB Control No. 1615– other forms of information technology, electronic, mechanical, or other 0059. e.g., permitting electronic submission of technological collection techniques or responses. other forms of information technology, The Department of Homeland Overview of This Information e.g., permitting electronic submission of Security, U.S. Citizenship and Collection responses. Immigration Services (USCIS) will be submitting the following information (1) Type of Information Collection: Overview of This Information collection request to the Office of Extension of a currently approved Collection Management and Budget (OMB) for information collection. (1) Type of Information Collection: review and clearance in accordance (2) Title of the Form/Collection: Extension of a currently approved with the Paperwork Reduction Act of Application for Posthumous information collection. 1995. The information collection was Citizenship. (2) Title of the Form/Collection: previously published in the Federal (3) Agency form number, if any, and Application for Temporary Protected Register on April 22, 2010, at 75 FR the applicable component of the Status. 21013, allowing for a 60-day public Department of Homeland Security

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sponsoring the collection: Form N–644; borrowers. FHA proposes to tighten through one of the two methods specified U.S. Citizenship and Immigration only those portions of its underwriting above. Again, all submissions must refer to Services (USCIS). guidelines that have been found to the docket number and title of the rule. (4) Affected public who will be asked present an excessive level of risk to both No Facsimile Comments. Facsimile or required to respond, as well as a brief homeowners and FHA. First, FHA (FAX) comments are not acceptable. abstract: Primary: Individuals or proposes to reduce the amount of Public Inspection of Public Households. This information collection closing costs a seller may pay on behalf Comments. All properly submitted will be used by USCIS to verify of a homebuyer purchasing a home with comments and communications eligibility and review the request for FHA-insured mortgage financing for the submitted to HUD will be available for awarding posthumous citizenship. purposes of calculating the maximum public inspection and copying between (5) An estimate of the total number of mortgage amount. This proposed cap on 8 a.m. and 5 p.m. weekdays at the above respondents and the amount of time ‘‘seller concessions’’ will minimize FHA address. Due to security measures at the estimated for an average respondent to exposure to the risk of adverse selection. HUD Headquarters building, an respond: 50 responses at 1 hour and 50 Secondly, FHA proposes to introduce a appointment to review the public minutes (1.83 hours) per response. credit score threshold as well as reduce comments must be scheduled in (6) An estimate of the total public the maximum loan-to-value (LTV) for advance by calling the Regulations burden (in hours) associated with the borrowers with lower credit scores, who Division at 202–708–3055 (this is not a collection: 92 annual burden hours. represent a higher risk of default and toll-free number). Individuals with If you need a copy of the information mortgage insurance claim. Finally, FHA speech or hearing impairments may collection instrument, please visit the will tighten underwriting standards for access this number via TTY by calling Web site at: http://www.regulations.gov. mortgage loan transactions that are the Federal Information Relay Service at We may also be contacted at: USCIS, manually underwritten. These 800–877–8339. Copies of all comments Regulatory Products Division, 111 transactions have resulted in high submitted are available for inspection Massachusetts Avenue, NW., mortgage insurance claim rates and and downloading at http:// Washington, DC 20529–2210; present an unacceptable risk of loss. www.regulations.gov. Telephone 202–272–8377. DATES: Comment Due Date: August 16, Dated: July 12, 2010. 2010. FOR FURTHER INFORMATION CONTACT: Mark Ross, Office of Single Family Sunday Aigbe, ADDRESSES: Interested persons are invited to submit comments regarding Program Development, Office of Chief, Regulatory Products Division, U.S. Housing, Department of Housing and Citizenship and Immigration Services, this notice to the Regulations Division, Department of Homeland Security. Office of General Counsel, Department Urban Development, 451 7th Street, SW., Washington, DC 20410; telephone [FR Doc. 2010–17301 Filed 7–14–10; 8:45 am] of Housing and Urban Development, number 202–708–2121 (this is not a toll- BILLING CODE 9111–97–P 451 7th Street, SW., Room 10276, Washington, DC 20410–0500. free number). Persons with hearing or Communications must refer to the above speech impairments may access this docket number and title. There are two number through TTY by calling the toll- DEPARTMENT OF HOUSING AND free Federal Information Relay Service URBAN DEVELOPMENT methods for submitting public comments. All submissions must refer at 800–877–8339. [Docket No. FR–5404–N–01] to the above docket number and title. SUPPLEMENTARY INFORMATION: 1. Submission of Comments by Mail. Federal Housing Administration Risk Comments may be submitted by mail to I. Background: FHA and the Housing Management Initiatives: Reduction of the Regulations Division, Office of Crisis Seller Concessions and New Loan-to- General Counsel, Department of FHA was established by Congress in Value and Credit Score Requirements Housing and Urban Development, 451 1934 to improve nationwide housing AGENCY: Office of the Assistant 7th Street, SW., Room 10276, standards, provide employment and Secretary for Housing—Federal Housing Washington, DC 20410–0500. stimulate industry, to improve Commissioner, HUD. 2. Electronic Submission of conditions with respect to home Comments. Interested persons may ACTION: Notice. mortgage financing, to prevent submit comments electronically through speculative excesses in mortgage SUMMARY: A recently issued the Federal eRulemaking Portal at investment, and to eliminate the independent actuarial study shows that http://www.regulations.gov. HUD necessity for costly secondary financing. the Mutual Mortgage Insurance Fund strongly encourages commenters to As a governmental mortgage insurance (MMIF) capital ratio has fallen below its submit comments electronically. company with nationwide scope, FHA statutorily mandated threshold. Electronic submission of comments provided credit enhancement to protect Consistent with HUD’s responsibility allows the commenter maximum time to mortgage lenders from risk of loss, under the National Housing Act to prepare and submit a comment, ensures which encouraged the banking ensure that the MMIF remains timely receipt by HUD, and enables community to extend credit to new financially sound, this notice solicits HUD to make them immediately homeowners and those in need of public comment on three proposed available to the public. Comments refinance and home improvement loans. initiatives that will contribute to the submitted electronically through the The result was one of the most restoration of the MMIF capital reserve http://www.regulations.gov Web site can successful collaborations between the account. The changes proposed in this be viewed by other commenters and public and private sectors in U.S. notice are designed to preserve both the interested members of the public. history. To this day, the FHA model, historical role of the Federal Housing Commenters should follow the which offers mortgage insurance for Administration (FHA) in providing a instructions provided on that site to mortgage loans that meet FHA home financing vehicle during periods submit comments electronically. requirements, reduces risk to mortgage of economic volatility and HUD’s social Note: To receive consideration as public lenders, thereby enabling them to mission of helping underserved comments, comments must be submitted extend credit to homeowners and

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homebuyers, even during periods of due to the high concentration of seller- 80 percent of appraised value. In 1938, economic volatility. financed downpayment assistance amendments to the National Housing The current state of the housing mortgage loans and declining real estate Act introduced a 90 percent LTV ratio market validates the importance of the values nationwide, and that the MMIF as well as a tiered approach that tied historical role of FHA in stabilizing the capital reserve relative to the amount of LTV to specific dollar amounts, e.g., 90 mortgage market during times of outstanding insurance in force had percent of the first $6,000 of value and economic disruption. Over the last 2 fallen below the statutorily mandated 2 80 percent for the remainder, depending years, FHA has resumed its percent ratio.1 on whether the property had been countercyclical position, supporting the FHA maintains the MMIF capital approved by FHA prior to construction. private sector when access to capital is reserve in a special reserve account. As By 1957, the permissible LTV had otherwise constrained. The volume of with other federal credit agencies, FHA increased to 90 or 97 percent of the first FHA insurance increased rapidly as uses a financing account to cover the $10,000 of value plus 85 percent of the private sources of mortgage finance current anticipated cost of its mortgage next $6,000 and 70 percent of the retreated from the market. FHA’s share loan guarantees. The MMIF capital remainder, again depending on whether of the single-family mortgage market reserve account serves as a back-up the property had been approved prior to today is approximately 30 percent—up fund, where FHA holds additional construction. LTVs in the mid 1990s from 3 percent in 2007, and the dollar capital to cover unexpected losses. followed the same general tiered volume of insurance written has jumped Funds are transferred into this account approach, with the first $25,000 of value from the $56 billion issued in that year only when FHA holds more cash in the limited to 97 percent; 95 percent of to more than $300 billion in 2009. financing account than is necessary to value in excess of $25,000, not to exceed cover projected costs. In recent years, Managing Risk to the MMIF $125,000; and 90 percent of value in adverse market conditions, the poor excess of $125,000. Under the The growth in the MMIF portfolio performance of seller-financed gift letter amendments made by the Housing and over such a short period of time mortgage loans, and worsening Economic Recovery Act of 2008 (Pub. L. coincides with a set of difficult economic projections had substantially 110–289, 122 Stat. 2654, approved July economic conditions. FHA is also increased the estimated cost of 30, 2008) (HERA), FHA implemented a concerned with the issue of layering outstanding single-family mortgage loan 96.5 percent LTV for purchase risk. Default risk is compounded when guarantees, and large transfers of funds transactions. there are low credit scores, high loan-to- were made from the reserve account By contrast, the conventional value (LTV) ratios, high debt-to-income into the primary financing account. As mortgage market changes LTV ratios, and low or zero cash reserves previously noted, these withdrawals requirements based on current associated with a loan. Given these from the MMIF capital reserve fund conditions in the market. In December conditions and concerns, FHA, in have resulted in its no longer complying 2007, Fannie Mae restricted the managing the MMIF, must be especially with the minimum capital ratio maximum LTV for properties located vigilant in monitoring the performance mandated by law. However, if the within a declining market to 5 of the portfolio, enhancing risk controls, current estimate of these costs proves percentage points less than it would and tightening standards to address excessive or if FHA implements policy otherwise permit for a given loan portions of the business that expose changes that result in net income to the product, meaning that a 95 percent LTV homeowners to excessive financial Federal Government, excess funds will program would see availability risks. See section 202(a)(7)(A) of the be moved from the financing account restricted to 90 percent LTV. In May National Housing Act, which addresses back to the reserve account, thereby 2008, Fannie Mae returned to a national the operational goals of the MMIF (12 restoring the capital reserves of the LTV as high as 97 percent for U.S.C 1708(a)(7)(A)). MMIF. conforming mortgages scored favorably The proposals set forth in this Notice There are four primary policy changes by its automated underwriting system, are representative of FHA’s focus on that FHA can implement to replenish and 95 percent LTV for those enhancing the agency’s risk the MMIF capital reserve account: (1) underwritten manually. management practices, while fulfilling Increase the premium income generated; As for a minimum credit score FHA’s mission to serve borrowers in a (2) reduce losses by tightening requirement, FHA did not introduce manner that is financially sustainable underwriting guidelines; (3) strengthen such a requirement until July 2008 for both FHA and borrowers. FHA’s enforcement measures to reduce when borrowers with credit scores authorizing statute, the National unwarranted claim payments, and (4) below 500 were limited to 90 percent Housing Act, clearly envisions that FHA improve avoidance of claim costs LTV. However, the large financial will adjust program standards and through enhanced loss mitigation. FHA institutions in the mortgage industry practices, as necessary, to operate the is engaged in efforts on all of these introduced a minimum credit score of MMIF, with reasonable expectations of fronts, exercising its full authority under 580 in the first quarter of 2008, financial loss. the terms of the National Housing Act, regardless of the type of financing and While the Federal Credit Reform Act including new authorities provided in LTV, and then raised it to 620 in the of 1990 requires that FHA (and all other recently enacted legislation. first quarter of 2009. government credit agencies) estimate and budget for the anticipated cost of History of FHA Loan-to-Value and II. New Tools To Manage Risk—The mortgage loan guarantees, the National Credit Score Requirements Housing and Economic Recovery Act of Housing Act imposes a special In 1934, single-family mortgage 2008 requirement that the MMIF hold an insurance was available for loans up to HERA made significant and additional amount of funds in reserve to comprehensive reforms to the National cover unexpected losses. On November 1 The capital ratio generally reflects the reserves Housing Act (12 U.S.C. 1701 et seq.) and 13, 2009, HUD released an independent available (net of expected claims and expenses), as consequently reforms to FHA programs. a percentage of the current portfolio, to address actuarial study that reported that FHA unexpected losses. The report can be found at: Section 2118 of HERA amended section will likely sustain significant losses http://www.hud.gov/offices/hsg/ 202 of the National Housing Act (12 from mortgage loans made prior to 2009, fhafy09annualmanagementreport.pdf. U.S.C. 1708), by amending several

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provisions directed to both highlighting National Housing Act, HUD has already applicable to mortgages insured under and strengthening FHA’s fiduciary undertaken several measures to protect the following programs: Title I of the responsibilities. the FHA fund during the economic National Housing Act; Home Equity Section 202, as amended by HERA, downturn, focusing on programs and Conversion Mortgages (HECMs); HOPE provides in paragraph (a)(3), entitled practices that resulted in poor loan for Homeowners (H4H); Section 247 ‘‘Fiduciary Responsibility,’’ that the performance. This includes: Prohibition (Hawaiian Homelands); Section 248 ‘‘Secretary has a responsibility to ensure on seller-financed downpayment (Indian Reservations); Section 223(e) that the Mutual Mortgage Insurance assistance and the tightening of (declining neighborhoods); and Section Fund remains financially sound.’’ underwriting guidelines for both the 238(c) (military impact areas in Georgia Paragraph (a)(4) continues a pre-HERA streamline and cash-out refinance and New York). The Mortgagee Letter requirement, which is for the Secretary products. FHA also implemented also advises that there is no change to to provide, annually, for an independent several changes to the agency’s the amount of annual premiums. actuarial study of the Fund, and the appraisal standards, shortening the III. Proposed Risk Management study is to include a review of risks to validity period and reaffirming Initiatives the Fund. Paragraph (a)(6) provides that appraiser independence, to ensure that if, pursuant to the independent actuarial appraisals are as up-to-date and accurate In addition to these measures—which study of the Fund, the Secretary as possible. address all four components of FHA’s determines that the Fund is not meeting In addition to program modifications, enhanced risk management approach— the operational goals established under FHA has increased oversight of this notice proposes to tighten FHA’s paragraph (7) or there is substantial lenders.2 FHA has terminated and underwriting guidelines in a manner probability that the Fund will not suspended several lenders whose that balances FHA’s goals of protecting maintain its established target subsidy default and claim rates were higher than the MMIF’s financial health, while rate, ‘‘the Secretary may either make the national default and claim rate. continuing to meet FHA’s historic programmatic adjustments under this FHA also announced and mission of providing a vehicle for title as necessary to reduce the risk to implemented an increase in the upfront mortgage lenders to provide affordable the Fund, or make appropriate premium mortgage insurance premium. By mortgages. Given the importance of adjustments.’’ Paragraph (a)(7) provides Mortgagee Letter 2010–02, FHA notified maintaining a viable MMIF for existing that the operational goals of the Fund the industry that FHA will collect an and future homeowners, it is FHA’s include minimizing the default risk to upfront mortgage insurance premium of intent to focus only on particular the Fund and to homeowners, while 2.25 percent for FHA loans for which practices that have been found to result meeting the housing needs of the case numbers are assigned on or after in extremely poor mortgage loan borrowers that the single-family April 5, 2010. As the Mortgagee Letter performance. TABLE A shows that few mortgage insurance program under this provides, the new upfront premium is borrowers are served under the title is designed to serve. applicable to mortgages insured under standards that FHA is proposing to Consistent with these new obligations the MMIF. The Mortgagee Letter advises eliminate, relative to the total FHA and authorities provided under the that the new upfront premium is not portfolio.

TABLE A—FHA SINGLE-FAMILY INSURANCE ENDORSEMENT SHARES IN CY 2009 a

Credit score ranges Loan-to-value range None 300–499 500–579 580–619 620–679 680–850 (percent) (percent) (percent) (percent) (percent) (percent)

Up to 90% ...... 0.03 0.01 0.12 0.48 2.28 3.51 Above 90% ...... 0.34 0.02 1.39 7.24 35.80 48.77 a All fully underwritten loans, excluding streamline refinance loans (and reverse mortgages). Source: U.S. Department of Housing and Urban Development/FHA; February 2010.

Table B clearly indicates, through the borrowers are at significantly greater performance data provided, that these risk of losing their homes.

TABLE B—FHA SINGLE-FAMILY INSURANCE [Seriously Delinquent Rates a by LTV and Credit Scores b as of January 31, 2010]

Credit score ranges LTV range None 300–499 500–579 580–619 620–679 680–850 (percent) (percent) (percent) (percent) (percent) (percent)

Up to 90% ...... 13.3 35.4 22.4 15.7 6.1 1.5 Above 90% ...... 20.9 43.3 30.4 19.6 8.6 2.3 a Seriously delinquent rates measure the sum of 90+-day delinquencies, in-foreclosure, and in-bankruptcy cases, as a percent of all actively in- sured loans on a given date.

2 See HUD press release of September 18, 2009, individual Mortgagee Letters implementing these increase the net worth of FHA-approved lenders at announcing FHA credit policy changes to improve policy changes at http://www.hud.gov/offices/adm/ 74 FR 62521. risk management functions at http://www.hud.gov/ hudclips/letters/mortgagee/index.cfm. See also news/release.cfm?content=pr09-177.cfm, and the HUD’s November 30, 2009, rule proposing to

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b Due to restrictions on the availability of loan-origination credit score data, this table includes only actively insured loans that were endorsed for insurance starting in Fiscal Year 2005. This table does not include information on streamline refinance loans. Source: U.S. Department of Housing and Urban Development/FHA; February 2010.

Given FHA’s mission, allowing the the housing market during troubled percent of the sales price, conventional continuation of practices that result in economic times and remain a source of mortgage lenders have capped seller such a high proportion of families losing mortgage credit for low- and moderate- concessions at 3 percent of the sales their homes represents a disservice to income homebuyers. These new price on loans with LTV ratios similar American families and communities. It guidelines are not applicable to to FHA. Loans guaranteed by the is FHA’s intent to eliminate this portion mortgages insured under the following Department of Veterans Affairs cap of its business, and utilize other programs: Title I of the National seller concessions at 4 percent of the established methods to reach and Housing Act; Home Equity Conversion sales price. Mortgages (HECMs); HOPE for support these families, such as through FHA proposes to cap the seller Homeowners (H4H); Section 247 HUD’s housing counseling program, concessions in FHA-insured single- (Hawaiian Homelands); Section 248 which helps families prepare for and family mortgage transactions at 3 (Indian Reservations); Section 223(e) achieve sustainable homeownership. percent of the lesser of the sales price (declining neighborhoods); and Section The following presents the practices or appraised value, for the purpose of that FHA plans to discontinue. 238(c) (military impact areas in Georgia and New York). calculating the maximum mortgage First, FHA proposes to reduce the amount. Table C shows that borrowers amount of closing costs a seller (or other A. Reduction of Seller Concession who received more than 3 percent in interested party) may pay on behalf of When a home seller pays all or part seller concessions had a significantly a homebuyer financing the purchase of of the buyer’s closing costs, such higher risk of losing their homes. While a home with FHA mortgage insurance. payments are referred to as seller seller concessions above 3 percent Secondly, FHA proposes to introduce a concessions.3 HUD’s existing policy would not be prohibited under this minimum credit score for eligibility, as regarding concessions is found in proposal, concessions that exceed well as reduce the maximum LTV for Handbook 4155.1, section 2.A.3 and FHA’s 3 percent cap would be required borrowers with lower credit scores. Handbook 4155.2, section 4.8, which to result in a dollar-for-dollar reduction Finally, FHA proposes to tighten define seller concessions and provide in the sales price for the purpose of underwriting standards for mortgage that any concessions exceeding 6 calculating the maximum FHA loan loans that are manually underwritten. percent must be treated as inducements amount. This proposed cap will not These initiatives are intended to reduce to purchase, resulting in a reduction in only align FHA’s single-family mortgage the risk to, and assist in the return of, the FHA mortgage amount. This notice insurance programs to industry practice, FHA’s MMIF capital ratio to its proposes to reduce the 6 percent but will help ensure that borrowers who mandated threshold. In addition, the limitation defined in the Handbooks to rely on FHA-insured financing have initiatives will help to continue FHA’s 3 percent. While HUD previously has sufficient investment in their home traditional role as a stabilizing force in allowed seller concessions of up to 6 purchases and are less likely to default.

TABLE C—FHA SINGLE-FAMILY INSURANCE [To-Date Claim Rates by Seller Concession Level—Percentage of Home Purchase Price as of January 31, 2010]

Concession rates Comparative ratios Endorsement fiscal year Zero Low: up to 3% High: above 3% Low/Zero High/Zero High/Low

2003 ...... 6.5% 6.2% 10.0% 0.96 1.55 1.61 2004 ...... 6.3% 7.0% 11.0% 1.11 1.76 1.59 2005 ...... 6.9% 7.9% 10.9% 1.14 1.58 1.38 2006 ...... 6.3% 7.5% 9.5% 1.19 1.51 1.27 2007 ...... 4.5% 5.3% 6.5% 1.19 1.46 1.23 2008 ...... 1.0% 1.2% 1.7% 1.18 1.67 1.41 Low = greater than zero and up to 3% of the sales price; High = greater than 3% of the sales price and up to 6%. Source: U.S. Department of HUD/FHA; Home Purchase loans excluding HECM, February 2010.

B. New LTV Ratio and Credit Score LTV for rate and term refinance Credit Bureaus and are based upon Requirements transactions) would be available only to credit-related information reported by borrowers with credit scores at or above creditors, specific to each applicant. FHA is proposing to introduce a 580. All borrowers with decision credit Lower credit scores indicate greater risk minimum decision credit score of no scores between 500 and 579 would be of default on any new credit extended less than 500 to determine eligibility for limited to 90 percent LTV. to the applicant. The decision credit FHA financing and reduce the The decision credit score used by score is based on the middle of three maximum LTV for all borrowers with FHA in this analysis is based on National Credit Bureau scores or the decision credit scores of less than or methodologies developed by the FICO lower of two scores when all three are equal to 579. Maximum FHA-insured Corporation. FICO scores, which range not available, for the lowest scoring financing (96.5 percent LTV for from a low of 300 to a high of 850, are applicant. While FHA’s historical data purchase transactions and 97.75 percent calculated by each of the three National and analysis is derived from the ‘‘FICO-

3 Seller concessions include any payment toward an interest in the transaction, to include the seller, builder, developer, mortgage broker, lender, or the borrower’s closing costs by any third party with settlement company.

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based’’ decision credit score, it is not as shown in TABLE A, the performance demonstrates that borrowers with FHA’s intent to prohibit the use of other of these borrowers is clearly very poor, decision credit scores below 580, who credit scoring models to assess an FHA as reflected in TABLES B and D. TABLE invest only a minimal amount of funds borrower’s credit profile. In this notice, D shows the serious delinquency rates into the transaction, struggle to make FHA seeks comment on the best means for borrowers with credit scores below their mortgage payments and ultimately for FHA to provide guidance to the 500, demonstrating that these borrowers lose their homes at a rate that is industry on acceptable score ranges for struggle to meet their mortgage unacceptable to FHA. Table D shows other scoring models, to ensure that the obligations. TABLE E demonstrates that that borrowers affected by this notice scales used for all scoring systems are the percentage of borrowers who have seriously delinquent rates four to consistent and appropriate for an FHA ultimately lose their homes is twice as five times higher than those who remain borrower. high for borrowers with lower credit eligible. While FHA is serving very few borrowers with credit scores below 500, scores. Similarly, FHA data

TABLE D—FHA SINGLE FAMILY INSURANCE [Seriously Delinquent Rates by Proposed Credit Score Floora January 31, 2010]

Above Floor Below 500 Floor (LTV up to 90) Below 580 Floor (LTV above 90) All Loans

7.63% 35.38% 29.80% 9.29% a On active insured cases meeting today’s underwriting criteria, which require 10% down for borrowers with credit scores below 500, excluding streamline refinance loans, endorsements Fiscal Years 2005–2009. Source: U.S. Department of Housing and Urban Development, Federal Housing Administration; February 2010.

FHA data indicate that insured January 2010 was more than three times proposed floor, for Fiscal Years (FYs) mortgages with decision credit scores as high for loans below the proposed 2005—FY 2008 books of business. The below 580 have significantly worse floor versus those above the floor. claim rate of mortgage loans below the default and claim experience than do Higher delinquencies do translate into floor is more than twice as high as those loans at or above 580. As seen in Table higher insurance claims over time. mortgage loans with credit D, the seriously delinquent rate on Table E shows the to-date claim rate of characteristics above the floor. actively insured mortgage loans in insured loans above and below the

TABLE E—FHA SINGLE FAMILY INSURANCE [To-Date Claim Rates on Fully Underwritten Loansa by Proposed FICO Floor Restrictions (Above or Below)b as of January 31, 2010]

Decision Credit Score Floor Endorsement FY Ratio Below/Above Above Below All

All Borrowers

2005 5.76% 14.44% 7.28% 2.51 2006 5.42% 12.79% 6.59% 2.36 2007 3.74% 8.39% 4.65% 2.24 2008 0.97% 2.88% 1.20% 2.96 The proposed restrictions are a minimum 500 FICO score for borrowers with loan-to-value ratios less than or equal to 90%, and a minimum of 580 for borrowers with ratios above 90%. Source: U.S. Department of Housing and Urban Development; February 2010.

FHA also must take measures that Borrowers with credit scores below 500 LTV for all borrowers with decision increase the likelihood that borrowers would not be eligible for FHA-insured credit scores between 500 and 579, FHA who are offered FHA-insured mortgages financing. The proposed new LTV and is also considering a special, temporary are capable of repaying these mortgages. credit score requirements will reduce allowance to permit higher LTV The proposed changes announced in the risk to the MMIF and ensure that mortgage loans for borrowers with lower this notice address these concerns. home buyers are offered mortgage loans decision credit scores, so long as they Under this proposal, effectively, a that are sustainable. involve a reduction of existing mortgage borrower with a decision credit score Proposed Exemption for Borrowers indebtedness pursuant to FHA program between 500 and 579 would be required Seeking to Refinance. While FHA adjustments announced on March 26, to make a greater downpayment [at proposes to introduce a minimum 2010. The program adjustments will be minimum, 10 percent] than a borrower decision credit score of no less than 500 proposed under separate notice. The with a higher score, for the purchase of to determine eligibility for FHA current mortgage lender will need to a home with the same sales price.4 financing and to reduce the maximum agree to accept a short pay off, accepting less than the full amount owed on the 4 FHA will continue to allow borrowers to use permissible sources of funds, as described in FHA that none of the parties financially benefit from the original mortgage in order to satisfy the Handbook 4155.1, paragraph 5.B.1, to meet the sales transaction. In addition, governmental outstanding debt. This exemption will minimum cash investment in the form of a entities, including instrumentalities thereof, as be applicable only to borrowers with downpayment. Gifts from family members, described in Section 528 of the National Housing charitable organizations, employers, and Act, may offer secondary financing to cover the credit scores between 500 to 579. Given government entities are also permitted, provided borrowers’ cash investment. the current economic conditions and the

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need (and encouragement by federal and requirements for refinance transactions borrower’s ability and willingness to other governmental programs) to would only be temporary, and would be repay the debt and to limit the refinance mortgages in order to obtain a applicable only to refinanced mortgages probability of default. An underwriter more affordable mortgage through lower involving a short pay off. FHA is not must consider a borrower’s credit monthly payments, the decision credit proposing this distinct criteria history, evaluate their capacity to repay scores proposed by this notice may be permanently for refinance transactions, the loan based on income and current counterproductive in helping existing but rather only for such period as would debt, determine if the cash to be used homeowners save their homes. Existing help existing homeowners maintain for closing is sufficient and from an homeowners have an established their homes during this current acceptable source, and determine if the payment history that can be taken into economic downturn. FHA is proposing value of the collateral supports the consideration in the underwriting only different credit scores for refinance amount of money being borrowed. process, but FHA recognizes that even transactions to continue through, but In cases where the borrower has very homeowners who have been able to not beyond, December 31, 2012. HUD limited or nontraditional credit history, make their monthly payments may have specifically seeks comment on FHA’s a FICO credit score may not have been had their credit scores negatively proposal. issued by the credit bureaus, or the impacted by the downturn in the credit score may be based on references C. Manual Underwriting economy which has so seriously that are few in number or do not affected the housing market. FHA’s The purpose of mortgage effectively predict future credit consideration of different credit score underwriting is to determine a worthiness.

TABLE F—MANUAL UNDERWRITING STANDARDS

LTV Credit score Ratios Reserves

90.00% ...... ≥ 500 to ≤ 579 ...... 31/43%—Cannot Exceed ...... 1 month PITI 96.50%* ...... ≥ 580 to 619 ...... 31/43%—Cannot Exceed ...... 1 month PITI Nontraditional Credit. 96.50%* ...... ≥ 620 and above ...... 31/43%—May Exceed ...... 1 month PITI * Cash-out refinance LTV limit is 85% and conventional-to-FHA refinance LTV limit is 97.75%.

Mortgage loans for borrowers in this credit scores of 620 or higher may income, e.g., part-time income that does category will need to be manually exceed the qualifying ratios of 31/43 not meet the requirements in Handbook underwritten as are all ‘‘Refer’’ risk percent, not to exceed 35/45 percent 4155.1, paragraph 4.D.2.d., and is not classifications provided by FHA’s provided that they are able to meet at reasonably expected to continue for the TOTAL Mortgage Score Card. Naturally, least one of the compensating factors next 2 years. these categories of borrowers present a listed below. To exceed the qualifying Documented cash reserves in the higher level of risk and, as a result, ratios of 35/45 percent, not to exceed amount of 3 total monthly mortgage manual underwriting guidelines are 37/47 percent, borrowers must meet at payments (principle, interest, taxes, generally more stringent to address that least two compensating factors listed insurance). The reserves, consisting of higher risk level. below. Any other compensating factors the borrower’s own funds, must be are not acceptable. Mortgage lenders FHA has determined that factors liquid or readily accessible, and may not cannot use compensating factors to concerning borrower housing and debt- consist of gift funds. to-income ratios, along with cash address unacceptable credit. While this reserves, are good predictive indicators notice does not address the interplay of • Energy Efficient Mortgages, as well as to the sustainability of the mortgage. the housing and debt-to-income ratios, as those homes that were built to the FHA is proposing to implement FHA is seeking comment on how to 2000 International Energy Conservation additional requirements that will serve borrowers with housing ratios Code, formerly known as the Model consider these factors for manually above the threshold and debt-to-income Energy Code, or are being retrofitted to underwritten mortgage loans, as seen in ratios below the threshold, i.e., 36/36 that standard, have ‘‘stretch ratios’’ up to TABLE F. percent. 33/45 percent. These additional requirements will Acceptable compensating factors are: TABLE G shows that borrowers who consider the borrower’s credit history, • The borrower will have a met the proposed ratio and reserve LTV percentage, housing/debt ratios, documented significant decrease or a requirements performed considerably and reserves. On all manually documented minimal change in housing better than those borrowers who did not underwritten mortgage loans, borrowers expense AND a documented 12-month meet the same guidelines. These will be required to have minimum cash housing payment history with no more proposed new requirements for manual reserves equal to one monthly mortgage than 1X30 late payments, e.g., no more underwriting will reduce the risk to the payment, which includes principal, than one month late on all rental or FHA MMIF, by helping to ensure that interest, taxes, and insurance(s). mortgage payments made within the home buyers are financially capable of Maximum housing and debt-to-income month due. repaying the mortgage loan to be ratios will be set at 31 percent and 43 • Documented significant additional insured by FHA. percent, respectively. Borrowers with income that is not considered effective

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TABLE G—FHA SINGLE-FAMILY INSURANCE [Credit Risk Comparisons for Proposed Limits on Manual Underwriting Approvals Data as of January 31, 2010]

To-date claim Seriously de- To-date claim Seriously de- Seriously de- a a Claim rate Endorsement fiscal year rate linquent rate rate linquent rate ratio linquent rate (percent) (percent) (percent) (percent) ratio

LTV up to 90, meeting ratio and LTV up to 90, not meeting ratio and reserve limits reserve limits

2004 ...... 4.3 21.2 6.3 26.7 1.48 1.26 2005 ...... 4.0 21.2 5.6 27.1 1.41 1.28 2006 ...... 4.4 26.3 5.2 35.4 1.18 1.35 2007 ...... 2.9 25.1 3.3 36.1 1.13 1.44 2008 ...... 0.6 20.2 1.3 30.4 2.23 1.51

Above 90 LTV, 580–619 FICO Above 90 LTV, 580–619 FICO (or nontraditional credit), not (or nontraditional credit) meeting ratio and reserve requirements meeting ratio and reserve re- quirements

2004 ...... 5.0 15.9 5.8 20.2 1.18 1.27 2005 ...... 5.0 18.4 7.2 24.5 1.43 1.33 2006 ...... 5.3 21.8 7.3 30.8 1.38 1.42 2007 ...... 2.9 23.5 4.4 33.7 1.51 1.43 2008 ...... 0.9 19.4 1.2 27.4 1.35 1.41

Above 90 LTV, FICO > 620 Above 90 LTV, FICO > 620, not meeting reserve requirements meeting reserve limits

2004 ...... 3.2 10.8 4.7 13.6 1.48 1.26 2005 ...... 3.9 12.6 5.0 17.0 1.29 1.35 2006 ...... 3.5 20.4 5.6 22.1 1.59 1.08 2007 ...... 2.7 21.8 4.2 27.3 1.59 1.25 2008 ...... 0.9 17.7 1.0 21.6 1.19 1.22 a The seriously delinquent rate is the sum of all loans 3 or more months delinquent, plus all in-foreclosure and in-bankruptcy cases, as a ratio of all active insurance in-force. Source: U.S. Department of Housing and Urban Development/FHA; February 2010.

Table H shows that borrowers with meet the proposed ratio and reserve worse than borrowers meeting those credit scores below 620 who did not requirements performed significantly requirements.

TABLE H—FHA SINGLE-FAMILY INSURANCE [Comparison of Seriously Delinquent Rates a—by Proposed Manual Underwriting Standards All Active Loans]

Loans that meet proposed ratio Loans that do Ratio: not meet/ LTV ratio Credit score range and reserve lim- not meet pro- posed limits meet its b

Up to 90 ...... 500–579 ...... 22.02 30.06 1.37 Above 90 ...... 580–619 or nontraditional credit ...... 18.33 26.15 1.43 Above 90 ...... 620 or above ...... 12.01 17.05 1.42 a The seriously delinquent rate is the sum of all loans 3 or more months delinquent, plus all in-foreclosure and in-bankruptcy cases, as a ratio of all active insurance in force. b See Chart below for Proposed Ratio and Reserve Limits. Source: U.S. Department of Housing and Urban Development/FHA; February 2010.

All borrowers with credit scores must transactions. TABLE F is not applicable private sector needs additional credit be classified by FHA’s TOTAL Mortgage for FHA-to-FHA rate and term refinance enhancement to do so. Scorecard to determine if manual (no cash-out), FHA streamline refinance IV. Solicitation of Public Comments underwriting is required. In cases where (including credit qualifying), and HECM TOTAL Scorecard refers the case for transactions. FHA welcomes comments on the manual underwriting, or in cases where The proposed changes announced in proposed risk management initiatives the borrower(s) has no credit score, FHA this notice will preserve both the for a period of 30 calendar days. All is proposing the additional historical role of the FHA in providing comments will be considered in the requirements for manual underwriting liquidity to the housing and mortgage development of the final Federal as illustrated in TABLE F. This table is markets during periods of economic Register notice announcing the risk applicable for purchase transactions, volatility, as well as HUD’s social management initiatives and providing FHA cash-out refinance transactions, mission of helping underserved their effective date. and all conventional to FHA refinance borrowers access capital when the

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V. Findings and Certification crunch in which FHA has become the 451 7th Street, SW., Room 10276, only source of mortgage credit for Washington, DC 20410–0500. Due to Executive Order 12866, Regulatory households who lack significant funds security measures at the HUD Planning and Review for downpayments and who do not have Headquarters building, please schedule The Office of Management and Budget pristine credit histories. FHA’s share of an appointment to review the docket file (OMB) reviewed this notice under the single family mortgage market today by calling the Regulations Division at Executive Order 12866 (entitled is approximately 30 percent—up from a 202–402–3055 (this is not a toll-free ‘‘Regulatory Planning and Review’’). The low point of just 3 percent in 2007. The number). Individuals with speech or notice was determined to be a dollar volume of insurance written hearing impairments may access this ‘‘significant regulatory action,’’ as jumped from just $56 billion in 2007 to number via TTY by calling the Federal defined in section 3(f) of the Order over $300 billion in 2009. Facilitating Information Relay Service at 800–877– (although not economically significant, the provision of credit during a liquidity 8339. as provided in section 3(f)(1) of the crisis is a welfare-enhancing activity Executive Order 13132, Federalism Order). and the FHA provides such a public In this notice, FHA proposes three benefit. Quantifying the benefit involves Executive Order 13132 (entitled policy changes that FHA can implement measuring the extent to which this ‘‘Federalism’’) prohibits an agency from to replenish the MMIF capital reserve Notice increases the abilities of the FHA publishing any policy document that account. First, FHA proposes to reduce to meet its mission requirements has federalism implications if the the amount of financing costs a property without having to substantially increase document either imposes substantial seller or other interested party may pay insurance premiums, and then direct compliance costs on state and on behalf of a homebuyer using an FHA- estimating the value of the net economic local governments and is not required insured mortgage. This proposed cap on benefits provided to households by the by statute, or the document preempts ‘‘seller concessions’’ will more closely housing options afforded them through state law, unless the agency meets the align FHA’s single family mortgage FHA insurance. consultation and funding requirements insurance programs with standard With respect to possible costs of this of section 6 of the Executive Order. This industry practice and minimize FHA policy change, FHA recognizes that notice does not have federalism exposure to the risk of adverse selection. tightening its underwriting guidelines implications and would not impose Secondly, FHA proposes to introduce a will cause excluded households to substantial direct compliance costs on two-part credit-score threshold, with either delay transition to state and local governments or preempt one lower bound for loans with loan-to- homeownership status or else never state law within the meaning of the value ratios of 90 percent or less, and a make that transition. For refinance Executive Order. higher threshold for those with loan-to- loans, the proposed restrictions will Unfunded Mandates Reform Act value ratios up to the statutory cause higher housing costs until such maximums. This will be the first time time as the excluded households can Title II of the Unfunded Mandates that FHA has ever instituted an absolute improve their credit histories and/or Reform Act of 1995 (2 U.S.C. 1531– lower-bound for borrower credit scores. gain more home equity through general 1538) (UMRA) establishes requirements Borrowers with low credit scores market-level house price appreciation. for federal agencies to assess the effects present higher risk of default and Individuals may face other costs from of their regulatory actions on state, mortgage insurance claim. Third, FHA being excluded from an FHA-insured local, and tribal governments, and on will tighten underwriting standards for loan, one of which is a search cost for the private sector. This notice would not mortgage loan transactions that are an alternative. However, an individual impose any federal mandates on any manually underwritten. Such lender or broker will offer a wide variety state, local, or tribal governments, or on transactions that lack the additional of products to a potential customer. An the private sector, within the meaning of credit enhancements proposed under FHA loan is only one of many products UMRA. this Notice result in higher mortgage offered by the typical lender so that the Environmental Impact insurance claim rates and present an typical potential borrower is not likely unacceptable risk of loss. The benefit of to go to another lender. The lender A Finding of No Significant Impact these set of actions will be to reduce the would inform the applicant that FHA (FONSI) with respect to the net losses due to high rates of insurance guidelines have changed and that given environment has been made in claims on affected loans, while the cost their credit score, there are no loans for accordance with HUD regulations at 24 will be the value of the homeownership that individual. Some consumers may CFR part 50, which implement section opportunity denied to the excluded wish for a second opinion, however, in 102(2)(C) of the National Environmental borrowers. The total saving to the FHA which case they would expend Policy Act of 1969 (42 U.S.C. would be $96 million in reduced claim additional resources and time. If for 4332(2)(C)). The Finding of No losses and the net cost to society of example, a consumer spent two hours Significant Impact is available for public excluding reduced homeownership valued at $40 per hour and another $20 inspection between the hours of 8 a.m. rates could be as high as $82 million. for an additional credit report, then the and 5 p.m. weekdays in the Regulations With respect to expected benefits of search cost would be $100 for a fraction Division, Office of General Counsel, this policy change, as noted earlier, the of the excluded borrowers. Department of Housing and Urban direct purpose of the policy change is to The foregoing provides only a brief Development, 451 7th Street, SW., achieve the statutorily mandated overview of the analysis that HUD Room 10276, Washington, DC 20410. minimum capital reserve ratio of 2 undertook in assessing costs and Due to security measures at the HUD percent. The broader purpose of the benefits. HUD’s full analysis can be Headquarters building, please schedule policy change, however, and of the found at http://www.hud.gov/offices/ an appointment to review the FONSI by capital reserve ratio requirement itself, hsg/sfh/hsgsingle.cfm. calling the Regulations Division at 202– is to ensure the financial soundness of The docket file is available for public 708–3055 (this is not a toll-free the FHA throughout a wide range of inspection in the Regulations Division, number). Individuals with speech or economic conditions. The current Office of General Counsel, Department hearing impairments may access this financial crisis has led to a credit of Housing and Urban Development, number via TTY by calling the Federal

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Information Relay Service at 800–877– with hearing or speech impairments A notice posted on June 11, 2009 8339. may access this number via TTY by clarified, among other things, how Dated: July 9, 2010. calling the toll-free Federal Information applicants were to meet the geographic Relay Service at 800– 877–8339. targeting requirements. A second notice David H. Stevens, SUPPLEMENTARY INFORMATION: posted on November 9, 2009, revised Assistant Secretary for Housing—Federal the NSP2 NOFA to: (1) Correct an Housing Commissioner. I. Background inconsistency in the NSP2 NOFA [FR Doc. 2010–17326 Filed 7–14–10; 8:45 am] A. Neighborhood Stabilization Program regarding when the lead member of a BILLING CODE 4210–67–P (NSP) consortium must enter into consortium funding agreements with consortium Title III of Division B of the Housing members; and (2) extend the deadline DEPARTMENT OF HOUSING AND and Economic Recovery Act, 2008 (Pub. for submission of such agreements to URBAN DEVELOPMENT L. 110–289, approved July 30, 2008) January 29, 2010. A third notice posted (HERA) appropriated $3.92 billion for [Docket No. FR–5410–N–01] on January 21, 2010, specified the NSP2 emergency assistance for the NOFA deadline date for submission of redevelopment of abandoned and Federal Housing Administration (FHA) consortium funding agreements. foreclosed homes and residential First Look Sales Method for Grantees, Additional notices posted by HUD on properties, and provides under a rule of Nonprofit Organizations, and April 2, 2010, revise the definitions of construction that, unless HERA states Subrecipients Under the Neighborhood ‘‘foreclosed’’ and ‘‘abandoned’’ for the Stabilization Programs (NSP) otherwise, the grants are to be purposes of the NSP programs. Notices considered Community Development AGENCY: Office of the Assistant of the changes listed above were Block Grant (CDBG) funds. The grant published in the Federal Register on Secretary for Housing—Federal Housing program under Title III is commonly Commissioner, HUD. June 17, 2009 (74 FR 28715), November referred to as the Neighborhood 16, 2009 (74 FR 58973), January 27, ACTION: Notice. Stabilization Program (NSP). HERA 2010, (75 FR 4410), and April 9, 2010 authorizes the Secretary to specify (75 FR 18228), and are available on SUMMARY: This notice outlines the alternative requirements to any process by which governmental entities, HUD’s Web site at: http://www.hud.gov/ provision under Title I of the Housing nspta. nonprofit organizations, and and Community Development Act of subrecipients participating in the 1974, as amended, (42 U.S.C. 5301 et B. FHA Temporary First Look Sales Neighborhood Stabilization Program seq.) (HCD Act), except for requirements Method for Eligible NSP Purchasers (NSP) (eligible NSP purchasers) are related to fair housing, The purpose of the FHA real estate- provided a preference to acquire FHA nondiscrimination, labor standards, and owned (REO) property disposition real estate-owned (REO) properties the environment (including lead-based program is to dispose of properties in a under FHA’s temporary NSP First Look paint), in accordance with the terms of manner that expands homeownership Sales Method. Eligible NSP purchasers section 2301 of HERA and for the sole opportunities, strengthens may acquire such REO properties for purpose of expediting the use of grant neighborhoods and communities, and any of the eligible uses under the NSP, funds. ensures a maximum return to the including rental or homeownership. On October 6, 2008 (73 FR 58330), mortgage insurance funds. HUD’s Today’s notice also outlines how REO HUD published a notice in the Federal regulations for the program are codified property sales under the FHA First Look Register advising the public of the at 24 CFR part 291 (entitled ‘‘Disposition Sales Method will be facilitated to allocation formula and allocation of HUD-Acquired Single Family ensure that NSP and FHA requirements amounts, the list of grantees, alternative Property’’). Under the part 291 are met, and to ensure that compliance requirements, and waivers granted. On regulations, HUD has considerable with these requirements does not June 19, 2009 (74 FR 29223), HUD flexibility in determining appropriate impede or otherwise disqualify eligible published a second notice in the methods of sale for REO properties. NSP purchasers from successfully Federal Register advising the public of Section 291.90 provides that ‘‘HUD may, participating in the FHA First Look substantive revisions to the October 6, in its discretion, on a case-by-case basis Sales Method. 2008, notice, primarily as a result of or as a regular course of business, While there are currently two separate changes to NSP authorized under the choose from among’’ several sales NSP programs (NSP1 and NSP2) created American Recovery and Reinvestment methods identified in the regulations. under their own respective authorizing Act (Pub. L. 111–005, approved Further, § 291.90(e) provides that ‘‘HUD legislation, for purposes of this notice February 17, 2009) (Recovery Act). may select any other methods of sale, as the term ‘‘NSP’’ shall be used to refer in Title XII of Division A of the Recovery determined by the Secretary.’’ general to all current or future NSP Act also appropriated additional Consistent with the goals of both NSP, programs, as well as to their respective funding under NSP. On May 4, 2009, to aid in the redevelopment of eligible program participants. HUD posted on its website the Notice of abandoned and foreclosed homes, and DATES: The FHA First Look Sales Funding Availability (NOFA) for the of HUD’s REO sales program, to expand Method announced in this notice shall Neighborhood Stabilization Program 2 homeownership opportunities and be in effect from the date of publication (NSP2) under the Recovery Act. HUD strengthen communities, this notice of this notice through May 31, 2013. announced the posting of the NSP2 announces a temporary REO sales FOR FURTHER INFORMATION CONTACT: NOFA through a Federal Register notice method under the authority conferred Vance T. Morris, Director, Office of published on May 7, 2009 (74 FR by § 291.90(e). Through the FHA First Single Family Asset Management, Office 21377). The NSP2 NOFA announced the Look Sales Method described in this of Housing, Department of Housing and availability of approximately $1.93 notice, HUD will afford eligible NSP Urban Development, 451 7th Street, billion in competitive grants authorized purchasers with a preference (‘‘First SW., Room 9172, Washington, DC under the Recovery Act. Following Look’’) to acquire FHA REO properties 20410; telephone number 202–708–1672 issuance of the NSP2 NOFA, HUD made that are available for purchase within (this is not a toll-free number). Persons some revisions. NSP areas. Eligible NSP purchasers may

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acquire such REO properties with the Note: If an eligible NSP purchaser is an Æ In each case where a state or local assistance of NSP funds for any eligible entity or organization to which HUD has government entity is an NSP uses under the NSP, including rental or already assigned a NAID, it is still subawardee/subrecipient, the letter homeownership. necessary for the entity or organization shall identify the direct HUD NSP grant The NSP designated areas referred to to complete this step in order for their recipient with which the state or local within this notice shall include those current NAID number to be coded for government NAID applicant has areas termed ‘‘areas of greatest need’’ the FHA First Look Sales Method. In partnered, including all pertinent under NSP1, ‘‘target geographies’’ under either case, applicants are directed to contact information for the direct NSP2, and those areas to be given other read the SAMS 1111 instructions to recipient partner (name, title, address, future NSP area designations. ensure that their NAID application telephone and fax numbers, and email package is submitted with the required address), and the direct HUD NSP grant C. Eligible NSP Purchasers information and supporting recipient’s grant award number. Governmental entities, nonprofit documentation. Nonprofit NSP participants, whether organizations, and subrecipients that Once an eligible NSP purchaser has direct HUD grant recipients or have received a HUD-issued Name and submitted its SAMS/NAID paperwork to subawardee/subrecipient partners to Address Identification Number (NAID) the appropriate HOC, and once these another grant recipient entity, shall are eligible to participate in the First forms have been processed and submit the following documents as part Look Sales Method, and are referred to approved, HUD shall generate a NAID of their NSP NAID application package: throughout this notice as ‘‘eligible NSP number that must be used by the • A completed form SAMS 1111, and purchasers.’’ For-profit organizations are eligible NSP purchaser to electronically supporting documentation as specified not eligible to participate in the FHA submit an offer to purchase any given under the SAMS 1111 instructions; First Look Sales Method. Note: Each FHA REO property available for • The most current version of the FHA REO property purchased by an purchase during the FHA First Look nonprofit’s approved bylaws, or eligible NSP purchaser under the First purchase period described below under equivalent legal document, identifying Look sales method must be purchased, Section E, Exercising Purchase which elected nonprofit board officials at least in part, with the assistance of Preference. Information about the and/or nonprofit staff have signatory NSP funds. eligible NSP purchaser’s NAID number authority to execute the purchase of real shall be provided to the eligible NSP property on behalf of the nonprofit II. Procedures and Requirements for purchaser by HUD’s Office of organization and with the nonprofit Eligible NSP Purchaser Participation in Community Planning and Development FHA First Look Sales Method organization’s financial resources; and (CPD) and its NSP contractor. • State or local government NSP A letter from the Executive Director A. Eligible NSP Purchaser Application and/or the nonprofit Board President/ for Electronic Systems Access participants, whether HUD direct grant recipients or subawardee/subrecipient Chair (or equivalent) certifying that the Eligible NSP purchasers (NSP partners to another grant recipient nonprofit is an NSP recipient or grantees, nonprofit organizations, and entity, shall submit the following subawardee/subrecipient and subrecipients) seeking to acquire FHA documents as part of their NSP NAID identifying the board official(s) and/or REO properties through the FHA First application package: nonprofit staff person(s) who have Look Sales Method are not required to • A completed form SAMS 1111 and signatory authority to execute the complete an approval process as supporting documentation as specified purchase of any FHA REO properties required of other entities seeking to under the SAMS 1111 instructions; assisted with the nonprofit’s NSP funds. purchase REO properties under the FHA • A letter from either the chief elected In each case where the nonprofit direct sales program. However, entities official or by the director of the local organization is a direct HUD recipient of acquiring FHA REO properties must government agency managing the NSP grant funds, the letter shall also have identifying information entered community’s NSP funds verifying that it identify the nonprofit’s NSP grant into HUD Single Family Asset is an NSP recipient or subawardee/ number. Management System (SAMS). Therefore, subrecipient and identifying the Æ In each case where a nonprofit eligible NSP purchasers interested in government official or staff person or organization is a direct HUD NSP acquiring FHA REO properties through persons who has or have been granted recipient, the letter shall also identify the FHA First Look Sales Method must signatory authority to purchase any any and all organizations and entities first submit a completed and signed FHA REO properties with the assistance (state/county/local government and/or Payee Name and Address Form, SAMS of a grantee’s NSP funds. nonprofit organization(s)) that are 1111, to the applicable FHA • In each case where the state or local subawardee/subrecipients under the Homeownership Center (HOC), along government entity is a direct HUD nonprofit’s NSP grant, including all with supporting documentation recipient of NSP funds, the letter shall pertinent contact information for each described below. also identify the state or local such subrecipient (names, titles, Using the information provided under government’s NSP grant award number. addresses, telephone and fax numbers, the completed SAMS form, HUD will Æ In each case where a state or local email addresses). create and assign a unique Name and government entity is a direct HUD NSP Æ In each case where a nonprofit Address Identification Number (NAID) recipient, the letter shall also identify entity is an NSP subrecipient/ for each entity involved in direct any and all organizations and entities subawardee, the letter shall identify the business with HUD. This form is (state/county/local government and/or direct HUD NSP grant recipient with available online at: http://www.hud.gov/ nonprofit organization(s)) that are which the nonprofit NAID applicant has offices/adm/hudclips/forms/files/ subawardees/subrecipients under the partnered, including all pertinent 1111sams.pdf; instructions are provided state or local government’s NSP grant, contact information for the direct on page 2 of the SAMS form identifying including all pertinent contact recipient partner (name, title, address, the required documentation to be information for each (names, titles, telephone and fax numbers, email attached to the SAMS 1111 submission addresses, telephone and fax numbers, address), and the direct HUD NSP grant in order to successfully obtain a NAID. email addresses). recipient’s grant award number.

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B. Submission of NAID Application C. Duration of FHA First Look Periods: instructions for NSP boundary files and Documentation Consideration and Purchase guidance on the approved formats are available at http://hudnsphelp.info/ Eligible NSP purchasers shall submit FHA REO properties that become available for purchase within an NSP- index.cfm?do=NSP1info and http:// the documentation described in Section www.huduser.org/portal/nsp1/nsp.html. II.A of this notice to the appropriate designated area shall be designated as HOC below, for review and approval. First Look properties. HUD CPD and its E. Exercising Purchase Preference Each application submitted by mail NSP data mapping contractor will make Information about the availability of must be enclosed in an envelope information available to eligible NSP each FHA REO property that is available marked: ‘‘ATTENTION—NSP NAID purchasers about FHA REO properties for purchase within a designated NSP PROCESSING.’’ located within NSP-designated areas on area shall be made available to eligible a daily basis, per the receipt of Atlanta HOC: U.S. Dept. of HUD, NSP purchasers through the CPD NSP electronic boundary files for each NSP Atlanta Homeownership Center, 40 contractor immediately after the designated area, as described under Marietta Street, Atlanta, GA 30303– property is conveyed to FHA. Each such Section D, below. The period between 2806 FHA REO property shall subsequently conveyance to FHA and the completion Denver HOC: U.S. Dept. of HUD, Denver be appraised and made available for of the property appraisal shall constitute purchase by an eligible NSP purchaser Homeownership Center, 1670 the First Look consideration period, Broadway, Denver, CO 80202–4801 under the First Look Sales Method for lasting up to 12 business days on a period of two (2) business days. Before Philadelphia HOC: U.S. Dept. of HUD, average. Once an NSP First Look submitting an offer to purchase an FHA Philadelphia Homeownership Center, property has been appraised, the eligible REO property through the FHA First The Wanamaker Building, 100 Penn NSP purchaser will be notified that the Look Sales Method, and with the Square East, Philadelphia, PA 19107– property has an appraised sales value assistance of NSP funds, eligible NSP 3389 and that the First Look purchase period purchasers must confirm that the Santa Ana HOC: U.S. Department of has commenced. From this point the property is within the boundaries of the Housing & Urban Development, Santa eligible NSP purchaser shall have two NSP designated area as it was accepted Ana Homeownership Center, Santa (2) business days to submit an offer to by CPD, regardless of any possible errors Ana Federal Building, 34 Civic Center the appropriate FHA Management and or generalizations made to the Plaza, Room 7015, Santa Ana, CA Marketing (M&M) contractor to representation of that designated area in 92701–4003 purchase the property. Information the boundary file or made by HUD when Applications for NSP NAID numbers about each contractor and related determining that an FHA REO property may also be submitted to the contract submission process is within a designated area. After appropriate HOC via email. All required instructions shall also be provided to confirmation, eligible NSP purchasers NAID application documents, including eligible NSP purchasers separate from should use the NAID to submit offers to those requiring official signatures, must this notice. purchase. be converted into Portable Document The duration of the entire First Look In those cases where the boundaries Format (.PDF) files and emailed to the period may be a total of 14 days on of any two or more NSP areas overlap, appropriate HOC. The subject line for average. Each such First Look property and where multiple eligible NSP each such email submission must read, shall remain available for purchase purchasers wish to exercise their ‘‘ATTENTION—NSP NAID under the First Look Sales Method until preference to purchase an FHA REO PROCESSING.’’ an eligible NSP purchaser submits an property that is located in two or more offer to purchase the property (in whole such NSP designated areas, the right to The following email addresses have or in part with the assistance of NSP purchase the property shall be granted been established for each respective funds), or through the expiration of the to the eligible NSP purchaser that first HOC for the express purpose of 2-day purchase period, whichever submits an offer to purchase the receiving NSP NAID application comes first. In the event that no eligible property in question. FHA REO submissions: NSP purchaser exercises its preference properties within an FHA-approved • Denver: NSP– to purchase an FHA REO property with Asset Control Area shall not be available [email protected]; the assistance of NSP funds during the for purchase under the First Look Sales • Philadelphia: NSP– 2-day First Look purchase period, the Method. [email protected]; M&M contractor shall proceed to market F. Discounted Sales Price • Atlanta: NSP– the property according to the applicable [email protected]; disposition procedures under 24 CFR For each FHA REO property acquired • Santa Ana: NSP– part 291. by an eligible NSP purchaser through [email protected]. the FHA First Look Sales Method, and D. Submission of Electronic Boundary with the assistance of NSP funds, FHA, Information regarding which HOC has Files of NSP Designated Areas through its applicable M&M contractor, jurisdiction over FHA REO sales in a Notification of the availability of FHA shall sell the property to the eligible particular state is available online at REO properties will be made available NSP purchaser at a discounted purchase http://www.hud.gov/offices/hsg/sfh/ to NSP grantees where the property price of 10 percent below the appraised hoc/hsghocs.cfm. location is within the boundary of the property value, less any applicable Additional information about FHA NSP grantees’ designated area and for costs, including commissions. In all programs and policies is available those NSP grantees that have applied for cases, the minimum discounted through FHA’s toll-free telephone and received a HUD-issued NAID. NSP purchase price of each FHA REO First number (800–CALL–FHA/800–225– grantees are required to submit an Look property purchased by an eligible 5342, and TDD: 877–833–2483). amendment to HUD if the designated NSP purchaser (in whole or in part with Information may also be provided by area changes. In addition, the grantee NSP funds) shall be one percent off of contacting FHA by email at needs to provide HUD with an updated the appraised property value; in no case [email protected]. jurisdictional boundary file. Submission shall the discounted purchase price

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exceed 99% of the appraised property protection compliance or requirements under 24 CFR part 35; value. The sales price of each FHA REO inapplicability. Eligible NSP purchasers payment of prevailing wages property is based upon the appraised are required to document compliance determined under the Davis-Bacon Act value of the property. Upon request, the with the tenant protection provisions of of 1931, as appropriate; and the URA. date of the FHA appraisal will be made the Recovery Act, as follows: The acquisition and ultimate available to the NSP purchaser by the [T]he grantee shall maintain disposition of these properties must also M&M contractor. documentation of its efforts to ensure that the comply with applicable federal civil rights laws, including, but not limited G. Uniform Relocation Act initial successor in interest in a foreclosed upon dwelling or residential real property to, Title VI of the Civil Rights Act of Acquisitions financed with NSP grant has complied with the requirements in 1964 and its implementing regulations funds are subject to the Uniform accordance with Appendix 1, Section K. at 24 CFR part 1; the Fair Housing Act, Relocation and Real Property Acquisition and relocation under section as amended, and its implementing K.2.a. and K.2.b. of the May 4, 2009 NSP2 Acquisition Policies Act of 1970 (URA) regulations at 24 CFR part 100; Section and its implementing regulations at 49 NOFA. If the grantee determines that the initial successor in interest in such property 504 of the Rehabilitation Act of 1973 CFR part 24, and the requirements set failed to comply with such requirements, it and its implementing regulations at 24 forth in the NSP notice published in the may not use NSP funds to finance the CFR part 8; and the Architectural Federal Register on October 6, 2008. acquisition of such property unless it Barriers Act of 1968. Since eligible NSP purchasers do not assumes the obligations of the initial Eligible NSP purchasers shall be have the power to condemn FHA REO successor in interest specified in section permitted to submit, and FHA M&M property, acquisitions through the FHA K.2.a. and K.2.b. If a grantee elects to assume vendors shall accept, sales contracts for First Look Sales Method may fall under such obligations, it must provide the the purchase of FHA REO properties the voluntary acquisition exclusion at relocation assistance required pursuant to 24 CFR 570.606 to tenants displaced as a result with the assistance of NSP funds under 49 CFR 24.101(b)(3). That provision of an activity assisted with NSP funds and the FHA First Look Sales Method that exempts certain governmental maintain records in sufficient detail to include contingency clauses pertaining acquisitions from the URA acquisition demonstrate compliance with the provisions to the successful completion of the policies without the written disclosures of that section. environmental review process, the lead ordinarily provided to private sellers. For each proposed acquisition of an paint inspection, and other H. Tenant Protection Requirements FHA REO property with NSP grant requirements, as applicable under the Under PTFA and ARRA funds, the FHA Mortgagee Compliance NSP. Contingency clauses concerning Manager (MCM) 1 will provide the the environmental review process must There are two separate laws eligible NSP purchasers with meet the provisions of the NSP concerning tenants in foreclosed information regarding when each Guidance on Conditional Purchase properties: the Protecting Tenants at property acquired by FHA REO was Agreements found at http:// Foreclosure Act (PTFA), which is part of determined to be vacant and the date www.hud.gov/offices/cpd/ the Helping Families Save Their Homes that the Notice of Foreclosure was communitydevelopment/programs/ Act of 2009 (Pub. L. 111–22, approved issued. Such information may include neighborhoodspg/pdf/ May 20, 2009), and the Recovery Act. cond_purchase_agreement.pdf. On June 24, 2009 (74 FR 30106), FHA whether only the former mortgagor currently occupies and/or occupied the Each eligible NSP purchaser is issued a notice on PTFA directed to expected to close on the purchase of entities and individuals that participate property at the time of the notice of foreclosure, copies of the tenant lease, each FHA REO property within the in HUD programs or with whom HUD same time frames that apply to non-NSP interacts in its programs (for example, information on the occupants, and/or any notices to vacate that the purchasers under FHA requirements. As approved mortgagees and approved such, when scheduling the settlement nonprofit organizations). The foreclosure attorney who works for the mortgagees may have on file. Based date, the M&M contractor shall provide responsibility for meeting the new the maximum time allowable under tenant protection requirements applies upon the information provided, it will be the responsibility of the eligible NSP applicable FHA requirements to ensure to all successors in interest of that the eligible NSP purchaser is purchaser to determine whether the residential property, regardless of provided with the time necessary to initial successor in interest of a whether a federally related mortgage is document compliance with all particular foreclosed property was in present. The immediate successors in applicable NSP requirements. This compliance with the Recovery Act and interest of residential property, which is includes the approval by the M&M whether the property was eligible for being foreclosed, bear direct contractor of any request submitted by acquisition with NSP grant funds. responsibility for meeting the an eligible NSP purchaser to extend the requirements of PTFA. The PTFA I. Contract Contingency Terms settlement deadline, per the procedures protections are self-executing and Properties acquired with NSP funds and guidelines provided under Property became effective on May 20, 2009. are subject to a number of other federal Disposition Handbook One to Four The Recovery Act includes separate requirements cited under HUD’s Family Properties (Handbook 4310.5 tenant protection requirements. In order regulations before the sale can be REV–2) (http://www.hud.gov/offices/ to use NSP funds to acquire foreclosed executed and the funds can be adm/hudclips/handbooks/hsgh/4310.5/ residential property, the eligible NSP expended. These requirements include, index.cfm). Approval of settlement purchaser must perform due diligence but are not limited to: Environmental deadline extension requests are to ensure that the initial successor in review, including historic preservation typically premised upon the fact that a interest to the foreclosed property and other related laws under 24 CFR purchaser is experiencing extenuating complied with tenant protection part 50 or part 58, as applicable; the circumstances beyond its control and requirements specified in the Recovery lead-based paint hazard abatement which have a direct impact upon its Act (or make a determination that such ability to go to settlement at the initially tenant protection requirements are 1 Michaelson, Connor & Boul, which is referred to agreed-upon deadline. For eligible NSP inapplicable), and the grantee must keep at http://www.hud.gov/offices/hsg/sfh/nsc/ purchasers these extenuating adequate documentation of tenant mcm.cfm. circumstances may pertain, but may not

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be limited to, the successful completion interested members of the public on the the Regulation Division, Office of of various NSP requirements, as conditions which must be met for the General Counsel, Department of described above. Any such request for waiver to be provided. Comments will Housing and Urban Development, 451 the extension of the settlement deadline be taken into consideration in Seventh Street, SW., Room 10276, on the part of the eligible NSP determining whether any modifications Washington, DC 20410–0500. Due to purchaser, and subsequent decision on should be made to the waiver eligibility security measures at the HUD the part of the M&M contractor, must be conditions. Under this waiver, FHA Headquarters building, an advance made in writing. REO properties can be acquired by a appointment to review the FONSI must Note: Prior to signing any sales purchaser and resold by the same be scheduled by calling the Regulations contract, the HUD Office of Single purchaser to a homebuyer who has been Division at 202–708–3055 (this is not a Family Housing will first complete its approved to acquire the property with toll-free number). environmental review responsibilities an FHA insured mortgage less than 90 Dated: July 9, 2010. pursuant to 24 CFR part 50, including days after the initial acquisition. The its responsibility to provide notice of full text of the anti-frequent re-sale David H. Stevens, site contamination following a search of waiver is available online: http:// Assistant Secretary for Housing–Federal agency files pursuant to section 120(h) www.hud.gov/offices/hsg/sfh/ Housing Commissioner. of the Comprehensive Environmental currentwaiver.pdf. Additional guidance [FR Doc. 2010–17335 Filed 7–14–10; 8:45 am] Response, Liability, and Compensation on compliance with the terms of this BILLING CODE 4210–67–P Act (CERCLA or ‘‘Superfund’’, 42 U.S.C. waiver is forthcoming from the 9620(h)), and will incorporate any Department. resulting conditions in the sales DEPARTMENT OF THE INTERIOR contract. Any remediation of site K. Affordability Requirements contamination required pursuant to FHA REO properties acquired with Fish and Wildlife Service section 120(h) shall be performed prior NSP funds through the FHA First Look [FWS–R8–ES–2010–N139; 1112–0000– to property transfer. Also as a condition Sales Method must meet the NSP 81440–F2 of sale, the purchaser of any FHA affordability requirements, and shall owned property located in a special otherwise be considered to be the Endangered and Threatened Wildlife flood hazard area and where flood monitoring responsibility of CPD. As and Plants; Permit, San Bernardino insurance is available through the required by statute and regulation, County, CA National Flood Hazard Insurance eligible NSP purchasers shall maintain Program will be required to obtain flood all documentation of compliance with AGENCY: U.S. Fish and Wildlife Service, insurance. NSP Program affordability requirements Interior. In the event that an FHA REO for each FHA REO property acquisition ACTION: Notice of availability. property for which an eligible NSP assisted, in whole or in part, with NSP purchaser has submitted a contingent funds, and shall make such SUMMARY: We, the U.S. Fish and sales contract that does not meet the documentation available for review, Wildlife Service (Service), have received standards and requirements under 24 upon request of FHA staff and/or an application from CJR General CFR part 35 and/or 24 CFR part 50 or (consistent with state and local laws Partnership (applicant) for an incidental part 58, or any other applicable statutes, regarding privacy and obligations for take permit under the Endangered regulations, or requirements, or if the confidentiality) FHA M&M III Species Act of 1973, as amended (Act). NSP purchaser cannot successfully contractors. We are considering issuing a permit that complete the various environmental would authorize the applicant’s take of review and other federal requirement L. Paperwork Reduction Act the federally threatened desert tortoise reviews under the NSP program before The information collection (Gopherus agassizii) and State the expiration of the required FHA requirements contained in this notice threatened Mohave ground squirrel deadline; or if the purchase of the have been approved by the Office of (Xerospermophilus mohavensis) property does not otherwise meet the Management and Budget (OMB) under incidental to otherwise lawful activities eligible NSP purchaser’s cost feasibility the Paperwork Reduction Act of 1995 that would result in the permanent loss or other affordable housing program (44 U.S.C. 3501–3520) and assigned of 120 acres of habitat for the species requirements, the sales contract shall be OMB Control Numbers 2502–0306 and near Oro Grande in San Bernardino terminated at no cost to the eligible NSP 2502–0540. In accordance with the County California. We invite comments purchaser. In addition, all obligations of Paperwork Reduction Act, an agency from the public on the application, the eligible NSP purchaser under the may not conduct or sponsor, and a which includes the AgCon Habitat contract shall be extinguished. person is not required to respond to, a Conservation Plan (HCP) that fully collection of information, unless the describes the proposed project and J. FHA 90-Day Anti-Frequent Re-Sale collection displays a currently valid measures the applicant will undertake Waiver OMB control number. to minimize and mitigate anticipated On January 15, 2010, FHA issued a take of the species. We also invite waiver of regulations under 24 CFR M. Environmental Impact comments on our preliminary 203.37a(b)(2), ‘‘Re-sales occurring 90 A Finding of No Significant Impact determination that the HCP qualifies as days or less following acquisition.’’ The (FONSI) with respect to the a ‘‘low-effect’’ plan, which is eligible for waiver is effective February 1, 2010, environment has been made for this a categorical exclusion under the through January 31, 2011, unless notice in accordance with HUD National Environmental Policy Act otherwise extended or withdrawn. On regulations at 24 CFR part 50, which (NEPA) of 1969, as amended. We May 21, 2010 (75 FR 38632), HUD implement section 102(2)(C) of the explain the basis for this determination published a notice in the Federal National Environmental Policy Act of in our draft Environmental Action Register announcing this waiver and 1969 (42 U.S.C. 4332(2)(C)). The FONSI Statement and associated Low-Effect seeking comments from industry, is available for public inspection Screening Form, both of which are also potential purchasers, and other between 8 a.m. and 5 p.m. weekdays in available for review.

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DATES: To ensure consideration, please 5 miles south of Helendale, San in the plan, and that the plan qualifies send your written comments by August Bernardino County, California. The as a ‘‘low-effect’’ HCP as defined by our 16, 2010. parcel contains Mojave creosotebush Habitat Conservation Planning ADDRESSES: You may download a copy scrub and sandy loam soils. Desert Handbook (November 1996). We base of the permit application, HCP, and tortoise surveys were conducted on the our determination that the HCP qualifies related documents on the Internet at property and two individuals were as a low-effect HCP on the following http://www.fws.gov/ventura/, or you found. Surveys for Mohave ground three criteria: (1) Implementation of the may request documents by U.S. mail or squirrels were not conducted. Their applicant’s project description in the phone (see below). Please address presence was assumed as the species HCP would result in minor or negligible written comments to Diane K. Noda, has been recorded nearby and the effects on federally listed, proposed, and Field Supervisor, Ventura Fish and property is within the range of and candidate species and their habitats; (2) Wildlife Office, U.S. Fish and Wildlife provides suitable habitat for the Mohave implementation of the HCP would result Service, 2493 Portola Road, Suite B, ground squirrel. in minor or negligible effects on other Ventura, CA 93003. You may The proposed project would result in environmental values or resources; and alternatively send comments by permanent impacts to 120 acres of (3) impacts of the HCP, considered facsimile to (805) 644–3958. habitat for the desert tortoise and together with the impacts of other past, Mohave ground squirrel. The applicant present, and reasonably foreseeable FOR FURTHER INFORMATION CONTACT: Jen proposes to implement the following similarly situated projects, would not Lechuga, HCP Coordinator, at the measures to minimize and mitigate for result, over time, in cumulative effects Ventura address above or by telephone the loss of desert tortoise and Mohave to the environmental values or resources at (805) 644–1766, extension 224. ground squirrel habitat within the that would be considered significant. As SUPPLEMENTARY INFORMATION: permit area: (1) Applicant will purchase more fully explained in our draft Background 120 acres of desert tortoise and Mohave Environmental Action Statement and ground squirrel habitat in the Superior- associated Low-Effect Screening Form, The desert tortoise, Mojave Cronese Critical Habitat Unit and Desert the applicant’s proposed HCP qualifies population, was listed as threatened on Wildlife Management Area for the as a ‘‘low-effect’’ HCP for the following April 2, 1990 (55 FR 12178). Section 9 desert tortoise which will be managed reasons: of the Act (16 U.S.C. 1531 et seq.) and in perpetuity by the California (1) Approval of the HCP would result our implementing Federal regulations in Department of Fish and Game or a third in minor or negligible effects on the the Code of Federal Regulations (CFR) at party for the conservation of the desert desert tortoise, Mohave ground squirrel, 50 CFR 17 prohibit the ‘‘take’’ of fish or tortoise and Mohave ground squirrel; (2) and their habitats. We do not anticipate wildlife species listed as endangered or a qualified biologist will oversee site significant direct, indirect, or threatened. Take of listed fish or preparation including vegetation and cumulative effects to the desert tortoise wildlife is defined under the Actas ‘‘to topsoil removal and fence construction, resulting from the proposed project; harass, harm, pursue, hunt, shoot, and provide worker training on the (2) Approval of the HCP would not wound, kill, trap, capture, or collect, or desert tortoise and Mohave ground have adverse effects on unique to attempt to engage in any such squirrel and requirements of the HCP; geographic, historic, or cultural sites, or conduct’’ (16 U.S.C. 1532). However, (3) all desert tortoises captured during involve unique or unknown under limited circumstances, we issue clearance surveys of the mine pit environmental risks; permits to authorize incidental take (i.e., expansion site will be moved to (3) Approval of the HCP would not take that is incidental to, and not the adjacent creosotebush scrub habitat result in any cumulative or growth- purpose of, the carrying out of an managed by the Bureau of Land inducing impacts and would not result otherwise lawful activity). Regulations Management (BLM); and (4) permanent in significant adverse effects on public governing incidental take permits for desert tortoise exclusion fencing will be health or safety; threatened and endangered species are installed to demarcate the impact area (4) The project does not require at 50 CFR 17.32 and 17.22, respectively. from the adjacent areas, including the compliance with Executive Order 11988 The Mohave ground squirrel is not a BLM-managed lands. (Floodplain Management), Executive species listed under the Act. However, In the proposed HCP, the applicant Order 11990 (Protection of Wetlands), or it is a State threatened species under the considersfive alternatives to the taking the Fish and Wildlife Coordination Act, California Endangered Species Act. By of the desert tortoise and Mohave nor does it threaten to violate a Federal, including the Mohave ground squirrel ground squirrel. The No Action State, local, or tribal law or requirement in the HCP, take of this species would alternative would maintain current imposed for the protection of the be authorized under the permit should conditions, the project would not be environment; and this species become listed under the implemented, there would be no (5) Approval of the HCP would not Act. impacts to the desert tortoise or Mohave establish a precedent for future actions The Act’s take prohibitions do not ground squirrel, and an incidental take or represent a decision in principle apply to federally listed plants on permit application would not be about future actions with potentially private lands unless such take would submitted to the Service. The other significant environmental effects. violate State law. In addition to meeting alternatives include expanding mining We, therefore, have made the other criteria, the HCP’s proposed operations at another existing mine, preliminary determination that the actions must not jeopardize the developing a new mine at a new site, approval of the HCP and incidental take existence of federally listed fish, reducing the size of the proposed mine permit application qualifies for a wildlife, or plants. expansion, and changing the duration or categorical exclusion under the National The applicant proposes to expandits direction of the proposed mine Environmental Policy Act (42 U.S.C. existing 120-acre Oro Grande sand and expansion. 4321 et seq.), as provided by the gravel mine pitto the north by 120 acres We are requesting comments on our Department of the Interior Manual (516 on parcel APN 0470–052–02 located preliminary determination that the DM 2 Appendix 2 and 516 DM 8). Based north of Bryman Road and east of applicant’s proposal will have a minor on our review of public comments that National Trails Highway, approximately or neglible effect on the species covered we receive in response to this notice, we

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may revise this preliminary DEPARTMENT OF THE INTERIOR Attn: Abengoa Lathrop Wells Solar determination. Facility, 4701 North Torrey Pines Drive, Bureau of Land Management Las Vegas, Nevada 89130; e-mail: Next Steps [email protected] or [LLNVSO0530 L5101.ER0000 _ We will evaluate the HCP and LVRWF0900110; NVN–0865171; 10–08807; lwse [email protected]; or phone: (702) 515– comments we receive to determine MO# 4500011976; TAS: 14X5017] 5173 whether the permit application meets SUPPLEMENTARY INFORMATION: The Notice of Intent To Prepare an the requirements of section 10(a)(1)(B) applicant, Abengoa Solar Inc., has Environmental Impact Statement for requested a right-of-way authorization of the Act (16 U.S.C. 1531 et seq.) and the Proposed Abengoa Solar Inc., implementing regulations (50 CFR for the construction, operation, Lathrop Wells Solar Facility, Amargosa maintenance, and termination of a solar 17.32). If we determine that the Valley, Nye County, NV application meets these requirements, energy generation project. The proposed Lathrop Wells Solar Facility project we will issue the permit for incidental AGENCY: Bureau of Land Management, would consist of a concentrated solar take of the desert tortoise and Mohave Interior. power facility including a solar ground squirrel. We will also evaluate ACTION: Notice of Intent. parabolic trough, photovoltaic panels, whether issuance of a section 10(a)(1)(B) SUMMARY: In compliance with the an electrical transmission substation, permit would comply with section 7 of switchyard facilities, and a transmission the Act by conducting an intra-Service National Environmental Policy Act of 1969, as amended (NEPA), and the line connecting to the existing Valley section 7 consultation. We will use the Federal Land Policy and Management Electric Line south of the project. The results of this consultation, in Act of 1976, as amended, the Bureau of proposed project would produce combination with the above findings, in Land Management (BLM) Pahrump approximately 250 megawatts (MW) our final analysis to determine whether Nevada Field Office, Southern Nevada from a parabolic-trough, dry-cooled or not to issue a permit. If the District Office intends to prepare an solar power plant with the option to requirements are met, we will issue the Environmental Impact Statement (EIS) expand the facility by adding a second permit to the applicant. and by this notice is announcing the 250–MW unit. Additionally, the proposal may include up to 20 MW of Public Comments beginning of the scoping process to solicit public comments and identify photovoltaic solar power. The proposed If you wish to comment on the permit issues. project would be located on approximately 5,336 acres of public application, HCP, and associated DATES: This notice initiates the public documents, you may submit comments lands in the Amargosa Valley, Nye scoping process for the EIS. Comments County, Nevada. The purpose of the by any one of the methods in on issues may be submitted in writing ADDRESSES. public scoping process is to ascertain until September 13, 2010. The date(s) the relevant issues that will influence Public Availability of Comments and location(s) of any scoping meetings the scope of the environmental analysis, will be announced at least 15 days in including alternatives, and to guide the Before including your address, phone advance through local news media, process for developing the EIS. At number, e-mail address, or other newspapers and the BLM Web site at: present, the BLM has identified the personal identifying information in your http://www.blm.gov/nv/st/en/fo/ following preliminary issues: comment, you should be aware that lvfo.html. Comments must be received Threatened and endangered species, your entire comment—including your prior to the close of the scoping period visual resource impacts, impacts to personal identifying information—may or 15 days after the last public meeting, lands with wilderness characteristics, be made publicly available at any time. whichever is later, to be included in the recreation impacts, socioeconomic While you can ask us in your comment Draft EIS. Additional opportunities for effects, and cumulative impacts. to withhold your personal identifying public participation will be provided The BLM will use and coordinate the information from public review, we upon publication of the Draft EIS. NEPA commenting process to satisfy the cannot guarantee that we will be able to ADDRESSES: You may submit comments public involvement process for Section do so. related to the Abengoa Solar Inc., 106 of the National Historic Lathrop Wells Solar Facility by any of Preservation Act (16 U.S.C. 470(f)) as Authority the following methods: provided for in 36 CFR 800.2(d)(3). • E-mail: [email protected] We provide this notice under section Native American tribal consultations • Fax: (702) 515–5010 (attention: will be conducted, and Tribal concerns, 10 of the Act (U.S.C. 1531 et seq.) and Gregory Helseth) including impacts on Indian trust assets, NEPA regulations (40 CFR 1506.6). • Mail: Gregory Helseth, BLM will be given due consideration. Dated: July 9, 2010. Southern Nevada District Office, 4701 Federal, state, and local agencies, as Diane K. Noda, North Torrey Pines Drive, Las Vegas, well as individuals, organizations or Nevada 89130–2301. tribes that may be interested or affected Field Supervisor, Ventura Fish and Wildlife • Office, Ventura, California. In person: At any EIS public by the BLM’s decision on this project scoping meeting. [FR Doc. 2010–17270 Filed 7–14–10; 8:45 am] are invited to participate in the scoping Documents pertinent to this proposal process and, if eligible, may request, or BILLING CODE 4310–55–P may be examined at the BLM Southern be requested by the BLM, to participate Nevada District Office. as a cooperating agency. FOR FURTHER INFORMATION CONTACT: For Before including your address, phone further information and/or to have your number, e-mail address, or other name added to our mailing list, send personal identifying information in your requests to: BLM Southern Nevada comment, you should be aware that District Office, Gregory Helseth, your entire comment—including your Renewable Energy Project Manager, personal identifying information—may

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be made publicly available at any time. FOR FURTHER INFORMATION CONTACT: the mission of the National Wildlife While you can ask us in your comment Jennifer Brown-Scott, phone (208) 467– Refuge System. to withhold your personal identifying 9278. Our CCP process provides participation opportunities for Tribal, information from public review, we SUPPLEMENTARY INFORMATION: cannot guarantee that we will be able to State, and local governments; agencies; do so. Introduction organizations; and the public. At this time we encourage input in the form of Patrick Putnam, With this notice, we initiate our issues, concerns, ideas, and suggestions Field Manager, Pahrump Field Office. process for developing a CCP for the for future management of the Refuge. [FR Doc. 2010–17264 Filed 7–14–10; 8:45 am] Refuge. This notice complies with our We will conduct the environmental BILLING CODE 4310–HC–P CCP policy to (1) advise the public, review of this project and develop an other Federal and State agencies, and EIS in accordance with the requirements Tribes of our intention to conduct of the National Environmental Policy DEPARTMENT OF THE INTERIOR detailed planning on the Refuge, and (2) Act of 1969, as amended (NEPA) (42 obtain suggestions and information on U.S.C. 4321 et seq.); NEPA regulations Fish and Wildlife Service the scope of issues to consider during (40 CFR parts 1500–1508); other [FWS–R1–NWRS–2010–N056; 1265–0000– development of the Draft CCP/EIS. appropriate Federal laws and 10137 S3] Background regulations; and our policies and procedures for compliance with those Deer Flat National Wildlife Refuge, The CCP Process laws and regulations. Canyon, Owyhee, Payette, and The National Wildlife Refuge System Washington Counties, ID; Malheur Deer Flat National Wildlife Refuge Administration Act of 1966, as amended County, OR The Refuge was established in 1909 by the National Wildlife Refuge System by President Theodore Roosevelt. Its AGENCY: Fish and Wildlife Service, Improvement Act of 1997 (16 U.S.C. purpose is to serve as a refuge and Interior. 668dd–668ee), requires the Service to breeding ground for migratory birds and ACTION: Notice of intent; announcement develop a comprehensive conservation other wildlife. The Refuge encompasses of open houses; request for comments. plan for each national wildlife refuge. 11,860 acres in two units—the Lake The purpose in developing a Lowell Unit and the Snake River Islands SUMMARY: We, the U.S. Fish and comprehensive conservation plan is to Unit. The Lake Lowell Unit Wildlife Service (Service), intend to provide refuge managers with a 15-year encompasses 10,640 acres located in prepare a comprehensive conservation strategy for achieving refuge purposes Canyon County, ID. The Lake Lowell plan (CCP) for Deer Flat National and contributing toward the mission of Unit is an overlay refuge, on an off- Wildlife Refuge (Refuge). The Refuge the National Wildlife Refuge System, stream Bureau of Reclamation has units located in Canyon, Owyhee, consistent with sound principles of fish (Reclamation) irrigation project. Payette, and Washington Counties, ID, and wildlife management, conservation, Reclamation owns and operates two and Malheur County, OR. We will legal mandates, and Service policies. In dams on Lake Lowell to manage the prepare an environmental impact addition to outlining broad management lake’s water for irrigation. Reclamation statement (EIS) to evaluate the potential direction on conserving wildlife and will participate in our CCP planning, effects of various CCP alternatives. This their habitats, plans identify wildlife- NEPA, and public involvement process notice also requests public comments dependent recreational opportunities as a cooperating agency. The Snake and announces public open houses; see available to the public, including River Islands Unit includes over 100 DATES, ADDRESSES, and SUPPLEMENTARY opportunities for hunting, fishing, islands along 113 miles of the Snake INFORMATION for the details. We issue wildlife observation, wildlife River located in Canyon, Payette, this notice in compliance with our CCP photography, and environmental Owyhee, and Washington Counties in policy to notify the public and other education and interpretation. We will ID; and Malheur County, OR. agencies of our intentions and to obtain review and update the CCP at least The Refuge provides a variety of suggestions and information on the every 15 years in accordance with the wildlife habitats, including the open scope of issues we will consider during National Wildlife Refuge System waters and wetland edges of Lake the CCP planning process. Administration Act. Lowell, sagebrush uplands and riparian DATES: To ensure consideration, we Each unit of the National Wildlife forest around the lake, and grassland must receive your written comments by Refuge System was established for and riparian forests on the Snake River September 10, 2010. Public open houses specific purposes. We use these Islands. In early summer, western will be held on July 28, August 20, and purposes as the foundation for grebes, white pelicans, mallards, and August 21, 2010; see SUPPLEMENTARY developing and prioritizing the wood ducks congregate on the lake. INFORMATION for details. management goals and objectives for When the lake is drawn down in late ADDRESSES: Send your comments or each refuge within the National Wildlife summer for irrigation, large numbers of requests for more information by any of Refuge System mission, and to shorebirds—including least sandpipers, the following methods: determine how the public can use each godwits, yellowlegs, and plovers—feed E-mail: [email protected]. refuge. The planning and public on the exposed mudflats. Duck Fax: Attn: Refuge Manager, (208) 467– involvement process is a way for the populations peak in mid-December, 1019. Service and the public to evaluate with 40,000–70,000 ducks using Lake U.S. Mail: Refuge Manager, Deer Flat management goals and objectives that Lowell annually. The Snake River National Wildlife Refuge, 13751 Upper will ensure the best possible approach Islands’ grassland, shrub, and riparian Embankment Road, Nampa, ID 83686. to wildlife, plant, and habitat forest habitats and surrounding waters In-Person Drop-Off: You may drop off conservation, while providing for provide habitat throughout the year for comments during regular business hours wildlife-dependent recreation herons, cormorants, songbirds, and (8 a.m. to 4 p.m.) at the above address, opportunities that are compatible with predators such as foxes, coyotes, red- or at the public open house. each refuge’s establishing purposes and tailed hawks, and American kestrels.

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Over 250 species of birds and 30 species Open Houses ACTION: Notice of issuance of permits. of mammals can be found on the Refuge. Three open houses will be held on SUMMARY: We, the U.S. Fish and Preliminary Issues, Concerns, and July 28, August 20, and August 21, Wildlife Service (Service), have issued Opportunities 2010, at the Deer Flat National Wildlife Refuge Visitor Center, 13751 Upper the following permits to conduct certain We have identified preliminary Embankment Road, Nampa, ID 83686. activities with endangered species and issues, concerns, and opportunities that The open houses are scheduled from 12 marine mammals. we may address in the CCP. We will be p.m. to 3 p.m. and 6 p.m. to 9 p.m. on ADDRESSES: Documents and other refining these issues and/or identifying July 28; 10 a.m. to 6 p.m. on August 20, information submitted with these additional issues, with input from the and 10 a.m. to 3 p.m. on August 21. For applications are available for review, public, partners, and Federal, State, more information visit our Web site at subject to the requirements of the local and tribal governments during the http://www.fws.gov/deerflat/. Privacy Act and Freedom of Information public comment period. Some of these Public Availability of Comments Act, by any party who submits a written issues follow. request for a copy of such documents to: • What actions should we take to Before including your address, phone U.S. Fish and Wildlife Service, Division number, e-mail address, or other sustain and restore priority wildlife of Management Authority, 4401 North personal identifying information in your species and habitats over the next 15 Fairfax Drive, Room 212, Arlington, comment, you should be aware that years? Virginia 22203; fax 703–358–2281. your entire comment—including your • What, where, when, and how personal identifying information—may FOR FURTHER INFORMATION CONTACT: should wildlife-dependent and other be made publicly available at any time. Division of Management Authority, public use opportunities be provided? While you can ask us in your comment telephone 703–358–2104. • Are existing Refuge access points to withhold your personal identifying SUPPLEMENTARY INFORMATION: Notice is and uses adequate and appropriate? information from public review, we hereby given that on the dates below, as • Should some areas of the Refuge be cannot guarantee that we will be able to authorized by the provisions of the managed as undisturbed wildlife do so. Endangered Species Act of 1973, as sanctuary areas? Dated: June 7, 2010. amended (16 U.S.C. 1531 et seq.), and • How can the Service, Reclamation, Carolyn A. Bohan, the Marine Mammal Protection Act of and others improve Lake Lowell’s water Acting Regional Director, Region 1, Portland, 1972, as amended (16 U.S.C. 1361 et quality? Oregon. seq.), the Fish and Wildlife Service [FR Doc. 2010–17269 Filed 7–14–10; 8:45 am] issued the requested permits subject to Public Comments BILLING CODE 4310–55–P certain conditions set forth therein. For each permit for an endangered species, Throughout the summer of 2010 we the Service found that (1) the will conduct a public scoping comment DEPARTMENT OF THE INTERIOR application was filed in good faith, (2) period. During this time we will meet the granted permit would not operate to with stakeholders; Federal, State, local Fish and Wildlife Service the disadvantage of the endangered and tribal governments; and other species, and (3) the granted permit interested parties, and hold three public [FWS–R9–IA–2010–N141] would be consistent with the purposes open houses to answer questions and [96300–1671–0000–P5] and policy set forth in Section 2 of the accept comments regarding refuge Issuance of Permits Endangered Species Act of 1973, as planning issues to be considered. amended. Comments are due by September 10, AGENCY: Fish and Wildlife Service, 2010. Interior. Endangered Species

Receipt of application Permit number Applicant Federal Register notice Permit issuance date

00568A ...... Bryce Carlson/Emory University ...... 75 FR 22162; April 27, 2010 .... June 24, 2010 02299A ...... John Turner ...... 75 FR 27814; May 18, 2010 .... June 30, 2010 069429 and 069443 ...... Steve Martin’s Working Wildlife ...... 75 FR 23279; May 3, 2010 ...... July 1, 2010 075249 ...... Sam Noble Oklahoma Museum of 75 FR 14627; March 26, 2010 May 16, 2010 Natural History. 07801A ...... Roger Jarvis ...... 75 FR 19656; April 15, 2010 .... June 4, 2010 080731 and 716917 ...... George Carden Circus International, 75 FR 2561; January 15, 2010 July 1, 2010 Inc.. 070854, 079868, 079870, 079871, and George Carden Circus International, 75 FR 27814; May 18, 2010 .... July 1, 2010 079872. Inc.. 128999 and 12311A ...... George Carden Circus International, 75 FR 28650; May 21, 2010 .... July 1, 2010 Inc.. 084874 ...... University of New Mexico, Museum 74 FR 62586; November 30, April 01, 2010 of Southwestern Biology. 2009. 08939A ...... Los Angeles Zoo ...... 75 FR 23279; May 3, 2010 ...... June 17, 2010 09558A ...... Rodney Peterson ...... 75 FR 22162; April 27, 2010 .... June 7, 2010 09584A ...... Robert Lange ...... 75 FR 22162; April 27, 2010 .... June 7, 2010 11227A ...... James Cordock ...... 75 FR 27814; May 18, 2010 .... June 16, 2010 11231A ...... Brooks Puckett ...... 75 FR 28650; May 21, 2010 .... June 29, 2010 196074 ...... Carly H. Vynne, University of Wash- 74 FR 21817; May 11, 2009 .... December 07, 2009 ington.

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Receipt of application Permit number Applicant Federal Register notice Permit issuance date

212266 ...... Florida Atlantic University/Div. of 75 FR 14627; March 26, 2010 May 16, 2010 Research and Sponsored Pro- gram. 215520 ...... University of California, Los Ange- 74 FR 62586; November 30, March 18, 2010 les/Center for Tropical Research. 2009. 218825 ...... Pauline L. Kamath, University of 74 FR 58977; November 16, March 18, 2010 California at Berkeley. 2009. 228022 ...... Metro Richmond Zoo ...... 75 FR 427; January 5, 2010 .... April 12, 2010 231585 ...... Wildlife Conservation Society ...... 75 FR 427; January 5, 2010 .... April 22, 2010 231674 ...... Lemur Conservation Foundation ..... 75 FR 62586; November 30, April 12, 2010 2009. 231677 ...... Terrance David Braden ...... 75 FR 9251; March 1, 2010 ..... March 31, 2010 237536 ...... Virginia Zoological Park ...... 75 FR 2561; January 15,2010 February 19, 2010

Marine Mammals

Receipt of application Permit number Applicant Federal Register notice Permit issuance date

837414 ...... SAAMS, Alaska SeaLife Center ...... 75 FR 4103; January 26, 2010 June 29, 2010

Dated: July 9, 2010 to withhold your personal identifying MISSOURI Brenda Tapia, information from public review, we Clay County Program Analyst, Branch of Permits, Division cannot guarantee that we will be able to of Management Authority. do so. Missouri City Savings Bank Building and Meeting Hall, 417–419 Main St, Missouri [FR Doc. 2010–17309 Filed 7–14– 10; 8:45 am] J. Paul Loether, City, 10000507 BILLING CODE S Chief, National Register of Historic Places/ NEW YORK National, Historic Landmarks Program. Cortland County DEPARTMENT OF THE INTERIOR ARIZONA Taylore Center Methodist Episcopal Church National Park Service Yavapai County and Taylore District #3 School, 4332–4338 Tuzigoot Museum, Alternate US 89A HWY Cheningo-Solon Pond Rd, Taylore Center, National Register of Historic Places; and Tuzigoot Rd, Clarkdale, 10000518 10000513 Notification of Pending Nominations Lewis County and Related Actions COLORADO Croghan Island Mill, 9897 S Bridge St, Bent County Nominations for the following Croghan, 10000515 properties being considered for listing Bent County High School, (New Deal Moser Farm, 8778 Erie Canal Rd, or related actions in the National Resources on Colorado’s Eastern Plains Kirschnerville, 10000516 Register were received by the National MPS) 1214 Ambassador Thompson Blvd, Park Service before June 19, 2010. Las Animas, 10000505 Monroe County Pursuant to section 60.13 of 36 CFR Part KANSAS Grace Church, 9 Brown’s Ave, Scottsville, 60, written comments are being 10000514 accepted concerning the significance of Morris County Onondaga County the nominated properties under the Council Grove Downtown Historic District, National Register criteria for evaluation. Generally spanning from Neosho River to Barnes—Hiscock House, The, 930 James St, Comments may be forwarded by United Belfry on W Main and extending N to Syracuse,10000512 States Postal Service, to the National Columbia between Neosho and Mission, TENNESSEE Register of Historic Places, National Council Grove, 10000519 Park Service, 1849 C St. NW., 2280, Hamilton County MASSACHUSETTS Washington, DC 20240; by all other Ridgedale Methodist Episcopal Church, 1518 carriers, National Register of Historic Barnstable County Dodds Ave, Chattanooga, 10000509 Places, National Park Service,1201 Eye Atwood-Higgins Historic District, Bound Sullivan County St. NW., 8th floor, Washington DC Brook Island Rd, Wellfleet, 10000508 20005; or by fax, 202–371–6447. Written Fairmont Neighborhood Historic District, Roughly bounded by Taylor St, or faxed comments should be submitted Suffolk County Pennsylvania Ave, Maple St, and Florida Charles River Reservation—Upper Basin by July 30, 2010. Ave, Bristol, 10000510 Before including your address, phone Headquarters, 1420–1440 Soldiers Field number, e-mail address, or other Rd, Boston, 10000506 WEST VIRGINIA personal identifying information in your MINNESOTA Randolph County comment, you should be aware that your entire comment—including your Yellow Medicine County Fort Marrow, N corner USR 219 and CR 219/ 16, Huttonsville, 10000511 personal identifying information—may Wood Lake Battlefield Historic District, be made publicly available at any time. Intersection of 218 Ave and 600 St, Sioux [FR Doc. 2010–17217 Filed 7–14–10; 8:45 am] While you can ask us in your comment Agency Township, 10000517 BILLING CODE P

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DEPARTMENT OF THE INTERIOR Register of Historic Places, National Yellowstone County Park Service, 1849 C St. NW., 2280, Dude Rancher Lodge, 415 N 29th St, Billings, National Park Service Washington, DC 20240; by all other 10000489 carriers, National Register of Historic PUERTO RICO National Register of Historic Places; Places, National Park Service,1201 Eye Notification of Pending Removal of St. NW., 8th floor, Washington DC San Juan Municipality Listed Property 20005; or by fax, 202–371–6447. Written Rum Pilot Plant, (Rum Industry in Puerto Pursuant to section 60.15 of 36 CFR or faxed comments should be submitted Rico MPS) State Rd #1, Estacion part 60. Comments are being accepted by July 30, 2010. Experimental Agricola, Rio Piedras, San on the following properties being Before including your address, phone Juan, 10000501 considered for removal from the number, e-mail address, or other TENNESSEE personal identifying information in your National Register of Historic Places. Hamilton County Comments may be forwarded by United comment, you should be aware that States Postal Service, to the National your entire comment—including your First Congregational Church, 901 Lindsay St, Chattanooga, 10000491 Register of Historic Places, National personal identifying information—may Park Service, 1849 C St. NW., 2280, be made publicly available at any time. TEXAS While you can ask us in your comment Washington, DC 20240; by all other Bexar County carriers, National Register of Historic to withhold your personal identifying Places, National Park Service, 1201 Eye information from public review, we Toltec, The, 131 Taylor St, San Antonio, 10000498 St. NW., 8th floor, Washington, DC cannot guarantee that we will be able to 20005; or by fax, 202–371–6447. Written do so. Karnes County or faxed comments should be submitted J. Paul Loether, Karnes County Courthouse, 101 Panna Maria by July 30, 2010. Ave, Karnes City, 10000499 Before including your address, phone Chief, National Register of Historic Places/ National Historic Landmarks Program. Tarrant County number, e-mail address, or other personal identifying information in your CALIFORNIA Vandergriff Building, 100 E Division St, Arlington, 10000500 comment, you should be aware that Los Angeles County your entire comment—including your WISCONSIN Ford Place Historic District, 110–175 N personal identifying information—may Oakland Ave; 450–465 Ford Place; 144 N Columbia County be made publicly available at any time. Los Robles Ave, Pasadena, 10000496 While you can ask us in your comment Kingsley Bend Mount Group Boundary to withhold your personal identifying Placer County Increase, (Late Woodland Stage in Archeological Region 8 MPS) 1.5 Miles S/ Fiddyment Ranch Main Complex, 4440 information from public review, we SE of JNCTN of STH 16 and 127, Town of Phillip Rd, Roseville, 10000503 cannot guarantee that we will be able to Newport, 10000490 do so. CONNECTICUT [FR Doc. 2010–17220 Filed 7–14–10; 8:45 am] J. Paul Loether, Fairfield County BILLING CODE P Chief, National Register of Historic Places/ Allen House, The, 4 Burritt’s Landing N, National Historic Landmarks Program. Westport, 10000492 Request for removal has been made Indian Harbor Yacht Club, 710 Steamboat Rd, DEPARTMENT OF THE INTERIOR for the following resources: Greenwich, 10000494 Fish and Wildlife Service TEXAS Village Creek, Roughly bounded by Village Creek, Hayes Creek and Woodward Ave, [FWS–R9–IA–2010–N142] Victoria County Norwalk, 10000493 [96300–1671–0000–P5] Krenek House, 607 N. Main, Victoria, Litchfield County 86002611 Receipt of Applications for Permit Rock Hall, 19 Rock Hall Rd, Colebrook, [FR Doc. 2010–17219 Filed 7–14–10; 8:45 am] 10000495 AGENCY: Fish and Wildlife Service, BILLING CODE P IDAHO Interior. ACTION: Notice of receipt of applications Elmore County DEPARTMENT OF THE INTERIOR for permit. KwikCurb Diner, 850 S. 3rd W, Mountain National Park Service Home, 10000502 SUMMARY: We, the U.S. Fish and IOWA Wildlife Service, invite the public to National Register of Historic Places; comment on the following applications Notification of Pending Nominations Polk County to conduct certain activities with and Related Actions Liberty Building, (Architectural Legacy of endangered species. With some Proudfoot & Bird in Iowa MPS) 418 Sixth exceptions, the Endangered Species Act Nominations for the following Ave, Des Moines, 10000488 properties being considered for listing (ESA) prohibits activities with listed or related actions in the National MISSOURI species unless a Federal permit is issued that allows such activities. The ESA Register were received by the National Nodaway County Park Service before June 12, 2010. laws require that we invite public Administrative Building, 800 University Dr, comment before issuing these permits. Pursuant to § 60.13 of 36 CFR Part 60, Maryville, 10000504 written comments are being accepted DATES: We must receive requests for concerning the significance of the MONTANA documents or comments on or before nominated properties under the Stillwater County August 16, 2010. National Register criteria for evaluation. United Methodist Episcopal Church, SE ADDRESSES: Brenda Tapia, Division of Comments may be forwarded by United Corner of Clark St and Second Ave, Park Management Authority, U.S. Fish and States Postal Service, to the National City, 10000497 Wildlife Service, 4401 North Fairfax

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Drive, Room 212, Arlington, VA 22203; While you can ask us in your comment DEPARTMENT OF THE INTERIOR fax (703) 358–2280; or e-mail to withhold your personal identifying [email protected]. information from public review, we Bureau of Land Management FOR FURTHER INFORMATION CONTACT: cannot guarantee that we will be able to [AK–963–1430–ET; F–81469, F–81490] Brenda Tapia, (703) 358–2104 do so. (telephone); (703) 358–2280 (fax); II. Background Notice of Proposed Withdrawal [email protected] (e-mail). Extension and Opportunity for Public To help us carry out our conservation SUPPLEMENTARY INFORMATION: Meeting; Alaska responsibilities for affected species, the I. Public Comment Procedures Endangered Species Act of 1973, section AGENCY: Bureau of Land Management, Interior. A. How Do I Request Copies of 10(a)(1)(A), as amended (16 U.S.C. 1531 Applications or Comment on Submitted et seq.), requires that we invite public ACTION: Notice. Applications? comment before final action on these permit applications. SUMMARY: On behalf of the U.S. Send your request for copies of Department of Commerce, National applications or comments and materials III. Permit Applications Oceanic and Atmospheric concerning any of the applications to Endangered Species Administration and the U.S. Geological the contact listed under ADDRESSES. Survey, the Assistant Secretary of the Please include the Federal Register Applicant: Los Angeles Zoo; Los Interior for Land and Minerals notice publication date, the PRT- Angeles, CA; PRT-16655A Management proposes to extend the number, and the name of the applicant The applicant requests a permit to duration of Public Land Order (PLO) in your request or submission. We will export three captive-born brush-tailed No. 2344, as modified by PLO No. 6839, not consider requests or comments sent bettongs or woylie (Bettongia for an additional 20-year period. These to an e-mail or address not listed under penincillata) to the Toronto Zoo, PLOs transferred jurisdiction of ADDRESSES. If you provide an email Ontario Canada, for the purpose of approximately 171 acres of public land address in your request for copies of enhancement of the survival of the withdrawn for the Naval Arctic applications, we will attempt to respond species. Research Laboratory near Barrow, to your request electronically. Alaska from the Department of the Navy Please make your requests or Applicant: Zoological Society of San to the National Oceanic and comments as specific as possible. Please Diego; Escondido, CA; PRT–17213A Atmospheric Administration and the confine your comments to issues for The applicant requests a permit to U.S. Geological Survey, and withdrew which we seek comments in this notice, export one captive-born greater one- an additional 45 acres of public land on and explain the basis for your horned rhinoceros (Rhinoceros behalf of these agencies for the Barrow comments. Include sufficient unicornis) to the Chester Zoo, Chester, Base Line Observatory and the Barrow information with your comments to UK, for the purpose of enhancement of Magnetic Observatory. This notice also allow us to authenticate any scientific or the survival of the species. gives an opportunity to comment on the commercial data you include. proposed action. The comments and recommendations Applicant: Earth Promise, Inc., dba Fossil Rim Wildlife Center; Glen Rose, DATES: Comments must be received by that will be most useful and likely to October 13, 2010. influence agency decisions are: (1) TX; PRT–15360A ADDRESSES: Comments and meeting Those supported by quantitative The applicant requests a permit to requests should be sent to the Alaska information or studies; and (2) Those import three captive-bred female State Director, BLM Alaska State Office, that include citations to, and analyses cheetahs (Acinonyx jubatus) from the 222 West 7th Avenue, No. 13, of, the applicable laws and regulations. Toronto Zoo, Ontario Canada, for the Anchorage, Alaska 99513–7504. We will not consider or include in our purpose of enhancement of the survival administrative record comments we of the species. FOR FURTHER INFORMATION CONTACT: Robert L. Lloyd, BLM Alaska State receive after the close of the comment Multiple Applicants period (see DATES) or comments Office, 907–271–4682 or at the address delivered to an address other than those The following applicants each request above. listed above (see ADDRESSES). a permit to import the sport-hunted SUPPLEMENTARY INFORMATION: The trophy of one male bontebok withdrawal created by PLO No. 2344 (26 B. May I Review Comments Submitted (Damaliscus pygargus pygargus) culled FR 3701, (1961)), as modified by PLO by Others? from a captive herd maintained under No. 6839 (56 FR 13413, (1991)), will Comments, including names and the management program of the expire on April 1, 2011, unless street addresses of respondents, will be Republic of South Africa, for the extended. The U.S. Department of available for public review at the purpose of enhancement of the survival Commerce, National Oceanic and address listed under ADDRESSES. The of the species. Atmospheric Administration and the public may review documents and other U.S. Geological Survey have filed Applicant: Keith Davis, Adamsville, information applicants have sent in applications to extend the withdrawal AL; PRT–15860A support of the application unless our for an additional 20-year period to allowing viewing would violate the Applicant: Anthony Giorgio, Roseville, continue protection of the facilities at Privacy Act or Freedom of Information MI; PRT–15914A the Barrow Base Line Observatory and Act. Before including your address, the Barrow Magnetic Observatory. phone number, e-mail address, or other Dated: July 9, 2010 This withdrawal comprises personal identifying information in your Brenda Tapia, approximately 216 acres of public land comment, you should be aware that Program Analyst, Branch of Permits, Division located within U.S. Survey No. 5253 in your entire comment—including your of Management Authority. secs. 23 and 26, T. 23 N., R. 18 W., personal identifying information—may [FR Doc. 2010–17307 Filed 7–14– 10; 8:45 am] Umiat Meridian, and is described in be made publicly available at any time. BILLING CODE S PLO No. 2344 (26 FR 3701, (1961)), as

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modified by PLO No. 6839 (56 FR to Section 810 of the Alaska National T. 4 S., R. 9 W. 13413, (1991)). A complete description, Interest Lands Conservation Act, 16 Sec. 11, SW1⁄4NW1⁄4. along with all other records pertaining U.S.C. 3120. Power Site Reserve No. 515 T. 5 S., R. 8 W. to the extension application, can be Authority: 43 CFR 2310.3–1. examined in the BLM Alaska State Sec. 6, lots 4, 5, and 6, and that portion of Dated: July 1, 2010. 1 1 Office at the address listed in the the NE ⁄4SW ⁄4 lying west of Highway 91. ADDRESSES section of this notice. Robert L. Lloyd, The areas described aggregate approximately The use of a right-of-way or Branch Chief, Alaska Lands and Transfer 170.00 acres in Beaverhead and Madison interagency or cooperative agreement Adjudication, Division of Alaska Lands. Counties. would not adequately protect the [FR Doc. 2010–17232 Filed 7–14–10; 8:45 am] 2. The State of Montana has been Federal investment in the Barrow Base BILLING CODE 3510–KD–P notified of their 90-day preference right Line Observatory and the Barrow for public highway rights-of-way or Magnetic Observatory. material sites. Any location, entry, There are no suitable alternative sites DEPARTMENT OF THE INTERIOR selection, or subsequent patent shall be available since the Barrow Base Line Bureau of Land Management subject to any rights granted to the State Observatory and the Barrow Magnetic as provided by Section 24 of the Act of Observatory are already constructed on [LLMTB05000–L14300000–FQ0000; MTM June 10, 1920, as amended, 16 U.S.C. the above-referenced public land. 41529 and MTM 41534] 818. No water rights would be needed to 3. At 9 a.m. on July 15, 2010 the lands Public Land Order No. 7745; Partial fulfill the purpose of the requested described in Paragraph 1 are hereby Revocation of Power Site Reserve Nos. withdrawal extension. opened to and made available for 510 and No. 515; Montana For a period of 90 days from the date exchange in accordance with Section of publication of this notice, all persons AGENCY: Bureau of Land Management, 206 of the Federal Land Policy and who wish to submit comments, Interior. Management Act of 1976, subject to the suggestions, or objections in connection ACTION: Public Land Order. provisions of Section 24 of the Federal with the proposed withdrawal extension Power Act, valid existing rights, the may present their views in writing to SUMMARY: This order partially revokes provisions of existing withdrawals, the BLM Alaska State Director at the two withdrawals created by Executive other segregations of record, and the address in the ADDRESSES section of this Orders insofar as they affect requirements of applicable law. notice. Before including your address, approximately 170 acres of public lands phone number, e-mail address, or other withdrawn for Power Site Reserve Nos. (Authority: 43 CFR part 2370; 43 CFR subpart 2320) personal identifying information in your 510 and 515. This order also opens the comment, you should be aware that lands to exchange. Dated: June 30, 2010. your entire comment—including your DATES: Effective Date: July 15, 2010. Wilma A. Lewis, personal identifying information—may FOR FURTHER INFORMATION CONTACT: Assistant Secretary—Land and Minerals be made publicly available at any time. Angela Brown, BLM Dillon Field Office, Management. While you can ask us in your comment 1005 Selway Drive, Dillon, Montana [FR Doc. 2010–17236 Filed 7–14–10; 8:45 am] to withhold your personal identifying 59725–9431, 406–683–8045, or Sandra BILLING CODE 4310–$$–P information from public review, we Ward, BLM Montana State Office, 5001 cannot guarantee that we will be able to Southgate Drive, Billings, Montana do so. All submissions from 59101–4669, 406–896–5052. DEPARTMENT OF THE INTERIOR organizations or businesses, and from SUPPLEMENTARY INFORMATION: individuals identifying themselves as The Bureau of Land Management representatives or officials of Bureau of Land Management has determined that portions of Power Site organizations or businesses, will be [LLCAC08000–L1430000–ET0000; CACA made available for public inspection in Reserve Nos. 510 and 515 are no longer 41334] their entirety. needed and partial revocation of the Notice is hereby given that an withdrawals is needed to facilitate a Public Land Order No. 7746; opportunity for a public meeting is pending land exchange. The Federal Withdrawal of Public Lands, South afforded in connection with the Energy Regulatory Commission has no Fork of the American River; California objections to the revocation. proposed withdrawal extension. All AGENCY: Bureau of Land Management, interested parties who desire a public Order Interior. meeting for the purpose of being heard By virtue of the authority vested in ACTION: Public Land Order. on the proposed withdrawal extension the Secretary of the Interior by Section must submit a written request to the 204 of the Federal Land Policy and SUMMARY: This order withdraws BLM Alaska State Director by October Management Act of 1976, 43 U.S.C. 2,238.49 acres of public lands from 13, 2010. Upon determination by the 1714, and Section 24 of the Act of June location and entry under the United authorized officer that a public meeting 10, 1920, 16 U.S.C. 818, it is ordered as States mining laws for the Bureau of will be held, a notice of the time and follows: Land Management to protect the unique place will be published in the Federal 1. The withdrawals created by natural, scenic, cultural, and Register and at least one local Executive Orders dated November 3, recreational values along the South Fork newspaper at least 30 days before the 1915 and December 13, 1915, which of the American River. scheduled date of the meeting. established Power Site Reserve Nos. 510 DATES: Effective Date: July 15, 2010. The withdrawal extension proposal and 515 respectively, are hereby will be processed in accordance with ADDRESSES: Field Manager, BLM Mother revoked insofar as they affect the Lode Field Office, 5152 Hillsdale Circle, the regulations set forth in 43 CFR following described lands: 2310.4 and subject to Section 204 of the El Dorado Hills, California 95762. Federal Land Policy and Management Principal Meridian, Montana FOR FURTHER INFORMATION CONTACT: Jodi Act of 1976, 43 U.S.C. 1714 and subject Power Site Reserve No. 510 Lawson, BLM Mother Lode Field Office,

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916–941–3101, or Dan Ryan, BLM INTERNATIONAL TRADE On February 23, 2010, the ALJ issued California State Office, 916–978–4677. COMMISSION a final ID, including his recommended determination on remedy and bonding. SUPPLEMENTARY INFORMATION: The [Investigation No. 337–TA–670] Bureau of Land Management will In his ID, the ALJ found that CompX’s manage the lands to protect the unique In the Matter of Certain Adjustable ‘‘Wedge-Brake’’ products do not infringe natural, scenic, cultural, and Keyboard Support Systems and either claims 7 or 34. The ALJ found recreational values along the South Fork Components Thereof; Notice of that CompX’s ‘‘Brake-Shoe’’ products, on of the American River. Commission Determination of No the other hand, do infringe claims 7 and Violation of Section 337; Termination 34, but that respondents established that Order of the Investigation claim 7 is invalid because it is obvious under 35 U.S.C. 103. The ALJ further By virtue of the authority vested in AGENCY: U.S. International Trade the Secretary of the Interior by Section Commission. found that respondents have not established the defense of intervening 204 of the Federal Land Policy and ACTION: Notice. Management Act of 1976, 43 U.S.C. rights. Finally, the ALJ found that 1714, it is ordered as follows: SUMMARY: Notice is hereby given that complainant proved the existence of a domestic industry in the United States. 1. Subject to valid existing rights, the the U.S. International Trade Accordingly, the ALJ recommended that following described public lands are Commission has determined that there the Commission issue a limited hereby withdrawn from location and is no violation of 19 U.S.C. 1337 by entry under the United States mining respondents in the above-referenced exclusion order barring entry into the laws (30 U.S.C. Ch. 2) for the Bureau of investigation. The investigation is United States of infringing adjustable Land Management to protect the unique terminated. keyboard support systems and natural, scenic, cultural, and FOR FURTHER INFORMATION CONTACT: Jia components thereof. The ALJ further recreational values along the South Fork Chen, Office of the General Counsel, recommended the issuance of a cease of the American River: U.S. International Trade Commission, and desist order against respondent 500 E Street, SW., Washington, DC Waterloo Furniture Components Ltd. Mount Diablo Meridian 20436, telephone (202) 708–4737. On March 9, 2010, Humanscale, T. 11 N., R. 9 E., Copies of non-confidential documents CompX, and the Commission Sec. 10, NW1⁄4NW1⁄4 and S1⁄2; filed in connection with this investigative attorney (‘‘IA’’) each filed a Sec. 12, lots 1 to 9 inclusive, investigation are or will be available for petition for review of the ALJ’s final ID. NW1⁄4SE1⁄4NW1⁄4, and NW1⁄4NE1⁄4SE1⁄4; inspection during official business On April 26, 2010, the Commission Sec. 20, NE1⁄4SW1⁄4, N1⁄2SE1⁄4, and hours (8:45 a.m. to 5:15 p.m.) in the 1 1 determined to review a portion of the SE ⁄4SE ⁄4; Office of the Secretary, U.S. 1 1 ALJ’s ID and requested briefing from the Sec. 28, SW ⁄4, NW ⁄4 excluding Mineral International Trade Commission, 500 E 1 1 1 parties on the issues under review and Survey 5163, W ⁄2 SW ⁄4, and SE ⁄4 Street, SW., Washington, DC 20436, 1 SW ⁄4; telephone (202) 205–2000. General on remedy, the public interest, and 1 1 Sec. 30, lots 1 to 4 inclusive, SW ⁄4NE ⁄4, information concerning the Commission bonding. On May 17, 2010, Humanscale, SE1⁄4NW1⁄4, E1⁄2,SW1⁄4, and SE1⁄4; CompX, and the IA each filed responses 1 1 1 1 1 may also be obtained by accessing its Sec. 32, N ⁄2NE ⁄4, SW ⁄4NE ⁄4, W ⁄2, and Internet server at http://www.usitc.gov. to the Commission’s request for written S1⁄2SE1⁄4. The public record for this investigation submissions. On May 27, 2010, T. 11 N., R. 10 E., may be viewed on the Commission’s Humanscale, CompX and the IA filed Sec. 18, lots 5, 6, and 7, and electronic docket (EDIS) at http:// reply submissions. On June 14, 2010, NW1⁄4NE1⁄4NW1⁄4; edis.usitc.gov. Hearing-impaired CompX filed a surreply to Humanscale’s Sec. 22, NW1⁄4SE1⁄4SW1⁄4, and that portion persons are advised that information on reply submission. of the E1⁄2, NW1⁄4, excluding lots 1, 4, and 5; this matter can be obtained by Having examined the record of this Sec. 26, SW1⁄4. contacting the Commission’s TDD investigation, including the ALJ’s ID The areas described aggregate 2,238.49 terminal on (202) 205–1810. and the submissions of the parties, the acres, more or less, in El Dorado County. SUPPLEMENTARY INFORMATION: The Commission has determined to reverse Commission instituted this investigation the ALJ’s determination that the 2. The withdrawal made by this order on March 13, 2009 based on a complaint respondents violated section 337. The does not alter the applicability of the filed by Humanscale Corporation Commission finds the asserted claims public land laws other than under the (‘‘Humanscale’’) of New York, New York. are not infringed and are invalid. mining laws. 74 FR 10963 (Mar. 13, 2009). The The authority for the Commission’s 3. This withdrawal will expire on complaint, as amended, named CompX December 15, 2049, unless as a result of International, Inc., of Dallas, Texas and determination is contained in section a review conducted before the Waterloo Furniture Components 337 of the Tariff Act of 1930, as expiration date pursuant to Section Limited, of Ontario, Canada amended (19 U.S.C. 1337), and in 204(f) of the Federal Land Policy and (collectively, ‘‘CompX’’) as respondents. section 210.45 of the Commission’s Management Act of 1976, 43 U.S.C. The complaint alleged violations of Rules of Practice and Procedure (19 CFR 1714(f), the Secretary determines that section 337 of the Tariff Act of 1930 (19 210.45). the withdrawal shall be extended. U.S.C. 1337) in the importation into the By order of the Commission. United States, the sale for importation, Dated: June 30, 2010. Issued: July 9, 2010. and the sale within the United States Wilma A. Lewis, after importation of certain adjustable Marilyn R. Abbott, Assistant Secretary—Land and Minerals keyboard support systems and Secretary to the Commission. Management. components thereof that infringe certain [FR Doc. 2010–17297 Filed 7–14–10; 8:45 am] [FR Doc. 2010–17233 Filed 7–14–10; 8:45 am] claims of U.S. Patent No. 5,292,097 (‘‘the BILLING CODE 7020–02–P BILLING CODE 4310–40–P ’097 patent’’).

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INTERNATIONAL TRADE operations, failure to apply for a permit Consent Decree Library at the stated COMMISSION to store hazardous waste, failure to address. comply with reporting and record [USITC SE–10–024] retention regulations, and failure to Maureen Katz, comply with the terms of the CA/FO. Assistant Chief, Environmental Enforcement Government In the Sunshine Act Section, Environment and Natural Resources Meeting Notice Under the terms of the proposed settlement, MBA will pay a penalty of Division. [FR Doc. 2010–17228 Filed 7–14–10; 8:45 am] AGENCY HOLDING THE MEETING: United $1.2 million and will perform injunctive BILLING CODE 4410–15–P States International Trade Commission. relief, including implementing RCRA compliance procedures, a RCRA- TIME AND DATE: July 28, 2010 at 11 a.m. specific employee training program, and PLACE: Room 101, 500 E Street SW., undertaking a comprehensive third- LEGAL SERVICES CORPORATION Washington, DC 20436, Telephone: party multimedia environmental (202) 205–2000. compliance audit at its Central Facility Sunshine Act; Notice of Meeting STATUS: Open to the public. in San Juan. The proposed Consent MATTERS TO BE CONSIDERED: Decree resolves only the civil claims of TIME AND DATE: The Legal Services 1. Agenda for future meetings: none the United States for the violations Corporation Board of Directors’ Search 2. Minutes alleged in the Complaint filed in this Committee for LSC President (‘‘Search 3. Ratification List action through the date of lodging. Committee’’ or ‘‘Committee’’) will meet 4. Inv. No. 731–TA–1163 (Final) The Department of Justice will receive on July 20, 2010. The meeting will begin (Woven Electric Blankets from China)— for a period of thirty (30) days from the at 4 p.m. (Central Daylight Savings briefing and vote. (The Commission is date of this publication comments Time) and continue until conclusion of currently scheduled to transmit its relating to the Consent Decree. the Committee’s agenda. determination and Commissioners’ Comments should be addressed to the LOCATION: Sidley Austin, LLP, 1 South opinions to the Secretary of Commerce Assistant Attorney General, Dearborn Street, Chicago, IL 60603. on or before August 9, 2010.) Environment and Natural Resources STATUS OF MEETING: Closed. The meeting 5. Outstanding action jackets: none Division, and either e-mailed to of the Search Committee will be closed In accordance with Commission [email protected] or to the public pursuant to a vote of the policy, subject matter listed above, not mailed to P.O. Box 7611, U.S. Board of Directors authorizing the disposed of at the scheduled meeting, Department of Justice, Washington, DC Committee to consider and perhaps act may be carried over to the agenda of the 20044–7611, and should refer to United on proposals submitted by bidding States v. the Metropolitan Bus Authority following meeting. executive search recruiters and to of Puerto Rico (D. P.R.) No. 3:10–cv– evaluate the qualifications of the By order of the Commission: 01631; D.J. Ref. No. 90–7–1–09630. recruiters. This closure will be Issued: July 12, 2010. Commenters may request an authorized by the relevant provisions of William R. Bishop, opportunity for a public meeting in the the Government in the Sunshine Act [5 Hearings and Meetings Coordinator. affected area, in accordance with section U.S.C. 552b(c)(4) and (6)] and LSC’s 7003(d) of RCRA, 42 U.S.C. 6973(d). [FR Doc. 2010–17334 Filed 7–13–10; 11:15 am] implementing regulation 45 CFR BILLING CODE 7020–02–P The Consent Decree may be examined 1 2 at the Office of the United States 1622.5(c) and (e). Attorney, District of Puerto Rico, Torre A verbatim written transcript will be made of the closed session of the Board DEPARTMENT OF JUSTICE Chardon, Suite 1201, 350 Carlos Chardon Ave., San Juan, Puerto Rico meeting. However, the transcript of any 00918, (contact AUSA Isabel Munoz- portions of the closed session falling Notice of Lodging of Consent Decree; within the relevant provisions of the Pursuant to the Resource Acosta), and at U.S. EPA Region II, Office of Regional Counsel, Caribbean Government in the Sunshine Act [5 Conservation and Recovery Act U.S.C. 552b(c)(4) and (6)] and LSC’s (‘‘RCRA’’) Team, Centro Europa Building, Suite 417, 1492 Ponce de Leon Ave. San Juan, implementing regulation 45 CFR Notice is hereby given that on July 9, Puerto Rico 00907 (contact Lourdes Del 1622.5(c) and (e), will not be available 2010, a proposed Consent Decree in Carmen Rodriguez). During the public for public inspection. A copy of the United States v. the Metropolitan Bus comment period, the Consent Decree General Counsel’s Certification that in Authority of Puerto Rico (D. P.R.) No. may also be examined on the following his opinion the closing is authorized by 3:10–cv–01631 was lodged with the Department of Justice Web site, http:// law will be available upon request. United States District Court for the www.usdoj.gov/enrd/ Matters To Be Considered District of Puerto Rico. Consent_Decrees.html. A copy of the In this action, the United States Consent Decree may also be obtained by Closed Session resolves the Metropolitan Bus Authority mail from the Consent Decree Library, 1. Approval of agenda. of Puerto Rico’s (‘‘MBA’’) violations of P.O. Box 7611, U.S. Department of 2. Consider and act on proposals the Resource Conservation and Justice, Washington, DC 20044–7611 or submitted by and evaluate the Recovery Act (‘‘RCRA’’), 42 U.S.C. 6901, by faxing or e-mailing a request to Tonia qualifications of executive search et seq., the regulations implementing Fleetwood ([email protected]), recruiters that submitted proposals for a RCRA, and an administrative Consent fax no. (202) 514–0097, phone Agreement and Final Order (‘‘CA/FO’’) confirmation number (202) 514–1547. In 1 45 CFR 1622.5(c)—Protects information the entered into between MBA and the requesting a copy from the Consent disclosure of which would disclose trade secrets United States Environmental Protection Decree Library, please enclose a check and commercial or financial information which is Agency (‘‘US EPA’’) on July 8, 2007. The in the amount of $13.00 (25 cents per confidential. 2 45 CFR 1622.5(e)—45 CFR § 1622.5(e)—Protects United States asserted claims for MBA’s page reproduction cost) payable to the information the disclosure of which would failure to comply with multiple RCRA U.S. Treasury or, if by e-mail or fax, constitute a clearly unwarranted invasion of regulations pertaining to the facility’s forward a check in that amount to the personal privacy.

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contract to assist in recruitment of a • Office of the Chief Technologist room. It is imperative that the meeting new LSC president. Update be held on this date to accommodate the 3. Consider and act on other business. • Space Technology Programs Briefings scheduling priorities of the key 4. Consider and act on adjournment of • Open Collaboration and Innovation participants. meeting. Presentation Visitors will need to show a valid CONTACT PERSON FOR INFORMATION: • Update on Human Exploration picture identification such as a driver’s Kathleen Connors, Executive Assistant Framework Team (HEFT) (joint license to enter the NASA Headquarters to the President, at (202) 295–1500. session) building (West Lobby—Visitor Control Questions may be sent by electronic • Exploration Systems Mission Center), and must state that they are mail to Directorate (ESMD) and the Office of attending the Audit, Finance and [email protected]. the Chief Technologist Coordination Analysis meeting in room 8D48, before SPECIAL NEEDS: Upon request, meeting Activities (joint session) receiving an access badge. All non-U.S notices will be made available in • Overview of ESMD New Technology citizens must fax a copy of their alternate formats to accommodate visual Initiatives (joint session) passport, and print or type their name, and hearing impairments. Individuals It is imperative that the meeting be current address, citizenship, company who have a disability and need an held on these dates to accommodate the affiliation (if applicable) to include accommodation to attend the meeting scheduling priorities of the key address, telephone number, and their may notify Kathleen Connors at (202) participants. title, place of birth, date of birth, U.S. visa information to include type, 295–1500 or Dated: July 8, 2010. [email protected]. number, and expiration date, U.S. Social P. Diane Rausch, Security Number (if applicable), and Dated: July 13, 2010. Advisory Committee Management Officer, place and date of entry into the U.S., fax Patricia D. Batie, National Aeronautics and Space to Charlene Williams, Executive Corporate Secretary. Administration. Secretary, Audit, Finance and Analysis [FR Doc. 2010–17438 Filed 7–13–10; 4:15 pm] [FR Doc. 2010–17199 Filed 7–14–10; 8:45 am] Committee, FAX: (202) 358–4336, by no BILLING CODE 7050–01–P BILLING CODE 7510–13–P later than July 23, 2010. To expedite admittance, attendees with U.S. citizenship can provide identifying NATIONAL AERONAUTICS AND NATIONAL AERONAUTICS AND information 3 working days in advance SPACE ADMINISTRATION SPACE ADMINISTRATION by contacting Charlene Williams at [Notice (10–080)] [Notice: (10–081)] 202–358–2183, or fax: (202) 358–4336. Dated: July 12, 2010. NASA Advisory Council; Audit, NASA Advisory Council; Technology P. Diane Rausch, and Innovation Committee; Meeting Finance and Analysis Committee; Meeting. Advisory Committee Management Officer, AGENCY: National Aeronautics and National Aeronautics and Space Space Administration. AGENCY: National Aeronautics and Administration. ACTION: Notice of meeting. Space Administration. [FR Doc. 2010–17316 Filed 7–14–10; 8:45 am] ACTION: Notice of meeting. BILLING CODE 7510–13–P SUMMARY: In accordance with the Federal Advisory Committee Act, Public SUMMARY: In accordance with the Law 92–463, as amended, the National Federal Advisory Committee Act, Public NATIONAL AERONAUTICS AND Aeronautics and Space Administration Law 92–463, as amended, the National SPACE ADMINISTRATION announces a meeting of the Technology Aeronautics and Space Administration [Notice (10–079)] and Innovation Committee of the NASA announces a meeting of the Audit, Advisory Council. It will include a joint Finance and Analysis Committee of the NASA Advisory Council; Aeronautics session with the Exploration Committee NASA Advisory Council. Committee; Meeting of the NASA Advisory Council starting DATES: Friday, July 30, 2010, 9 a.m.–12 AGENCY: National Aeronautics and at 1 p.m. PDT. The meeting will be held p.m. (Local Time). for the purpose of reviewing the Space Space Administration. ADDRESSES: NASA Headquarters, 300 E Technology Program planning. ACTION: Notice of meeting. Street, SW., Conference Room 8D48, DATES: Tuesday, August 3, 2010, 8:30 Washington, DC 20546. SUMMARY: In accordance with the a.m. to 6:15 p.m. PDT. FOR FURTHER INFORMATION CONTACT: Ms. Federal Advisory Committee Act, Public ADDRESSES: NASA Jet Propulsion Charlene Williams, Office of the Chief Law 92–463, as amended, the National Laboratory—Von Karman Auditorium, Financial Officer, National Aeronautics Aeronautics and Space Administration 4800 Oak Grove Drive, Pasadena, CA and Space Administration announces a meeting of the Aeronautics 91011. Headquarters, Washington, DC 20546, at Committee of the NASA Advisory FOR FURTHER INFORMATION CONTACT: Mr. 202–358–2183, fax: 202–358–4336. Council. The meeting will be held for the purpose of soliciting from the Mike Green, Office of the Chief SUPPLEMENTARY INFORMATION: The Technologist, NASA Headquarters, agenda for the meeting includes the aeronautics community and other Washington, DC 20546, (202) 358–4710, following topics: persons research and technical fax (202) 358–4078, or • Overview-Strategic Investment information relevant to program [email protected]. Division planning. SUPPLEMENTARY INFORMATION: The • Open Government Initiative DATES: Friday, July 30, 2010, 8 a.m. to meeting will be open to the public up • Federal Advisory Committee Act 4 p.m. (local time). to the capacity of the room. The agenda (FACA) Briefing ADDRESSES: NASA Glenn Research for the meeting includes the following The meeting will be open to the Center, Building 15, Small Dining/ topics: public up to the seating capacity of the Conference Room, Cleveland, Ohio

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(Note that visitors will need to go to the NATIONAL SCIENCE FOUNDATION Science Foundation, 4201Wilson Blvd., Glenn Research Center Main Gate, to be Arlington, VA 22230. Room 350 will be granted access.) National Science Board; Sunshine Act available for the public to listen-in on FOR FURTHER INFORMATION CONTACT: Ms. Meetings; Notice this teleconference meeting. All visitors must contact the Board Office at least Susan L. Minor, Aeronautics Research The National Science Board’s one day prior to the meeting to arrange Mission Directorate, National Committee on Strategy and Budget, for a visitor’s badge and obtain the room Aeronautics and Space Administration pursuant to NSF regulations (45 CFR number. Call 703–292–7000 to request Headquarters, Washington, DC, 20546, part 614), the National Science your badge, which will be ready for (202) 358–0566, or Foundation Act, as amended (42 U.S.C. pick-up at the visitor’s desk on the day [email protected]. 1862n–5), and the Government in the of the meeting. All visitors must report Sunshine Act (5 U.S.C. 552b), hereby SUPPLEMENTARY INFORMATION: The to the NSF visitor desk at the 9th and gives notice in regard to the scheduling meeting will be open to the public up N. Stuart Streets entrance to receive of a meeting for the transaction of to the capacity of the room. The agenda their visitor’s badge on the day of the National Science Board business and for the meeting includes the following teleconference. topics: other matters specified, as follows: UPDATES AND POINT OF CONTACT: Please • NASA Glenn Research Center DATE AND TIME: Tuesday, July 29, 2010 refer to the National Science Board Web Overview. at 2 p.m. to 3:30 p.m. site (http://www.nsf.gov/nsb/notices/) • Proposed National Research SUBJECT MATTER: Future year budgets. for information or schedule updates, or Council Study of the Aeronautics STATUS: Closed. contact: Kim Silverman, National Research Mission Directorate Research LOCATION: Science Foundation, 4201Wilson Blvd., Portfolio. This meeting will be held at Arlington, VA 22230. Telephone: (703) • Outbrief on National Research National Science Foundation, 292–7000. Council Committee of Experts Meeting 4201Wilson Blvd., Arlington, VA 22230. on Validation & Verification Planning. UPDATES AND POINT OF CONTACT: Please Daniel A. Lauretano, • Mid- and Long-Term NextGen refer to the National Science Board Web Counsel to the National Science Board. site http://www.nsf.gov/nsb for Challenges. [FR Doc. 2010–17461 Filed 7–13–10; 4:15 pm] additional information and schedule It is imperative that these meetings be BILLING CODE 7555–01–P held on this date to accommodate the updates (time, place, subject matter or scheduling priorities of the key status of meeting) may be found at participants. Attendees will be http://www.nsf.gov/nsb/notices/. Point of contact for this meeting is: Blane NUCLEAR REGULATORY requested to comply with NASA COMMISSION security requirements, including the Dahl, National Science Board Office, presentation of a valid picture ID, before 4201Wilson Blvd., Arlington, VA 22230. [NRC–2010–0249] receiving an access badge. Foreign Telephone: (703) 292–7000. nationals attending this meeting will be Draft Regulatory Guide; Issuance, Daniel A. Lauretano, Availability required to provide a copy of their Counsel to the National Science Board. passport, visa, or green card in addition [FR Doc. 2010–17439 Filed 7–13–10; 4:15 pm] AGENCY: Nuclear Regulatory to providing the following information BILLING CODE 7555–01–P Commission. no less than 10 working days prior to ACTION: Issuance, availability of Draft the meeting: full name; gender; date/ Regulatory Guide (DG)–1234. place of birth; citizenship; visa/green NATIONAL SCIENCE FOUNDATION card information (number, type, ADDRESSES: You may submit comments expiration date); passport information National Science Board; Sunshine Act by any one of the following methods. (number, country, expiration date); Meetings; Notice Please include Docket ID NRC–2010– employer/affiliation information (name 0249 in the subject line of your The National Science Board’s Task of institution, address, country, phone); comments. Comments submitted in Force on Merit Review, pursuant to NSF and title/position of attendee. To writing or in electronic form will be regulations (45 CFR part 614), the expedite admittance, attendees with posted on the NRC Web site and on the National Science Foundation Act, as U.S. citizenship can provide identifying Federal rulemaking Regulations.gov. amended (42 U.S.C. 1862n–5), and the information 3 working days in advance Because your comments will not be Government in the Sunshine Act (5 by contacting Linda F. Huddleston via edited to remove any identifying or U.S.C. 552b), hereby gives notice in e-mail at [email protected] contact information, the NRC cautions regard to the scheduling of meetings for or by telephone at (216) 433–2205. you against including any information the transaction of National Science Persons with disabilities who require in your submission that you do not want Board business and other matters assistance should indicate this. Any to be publicly disclosed. person interested in participating in the specified, as follows: FOR FURTHER INFORMATION CONTACT: DATE AND TIME: Wednesday, July 28 at 1 meeting by Webex and telephone R. A. Jervey, U.S. Nuclear Regulatory p.m. EDT. should contact Ms. Susan L. Minor at Commission, Washington, DC 20555– (202) 358–0566 for the Web link, toll- SUBJECT MATTER: Discussion of survey 0001, telephone: (301) 251–7404 or free number and passcode. methods for gathering merit review- e-mail [email protected]. related data from such sources as Dated: July 8, 2010. SUPPLEMENTARY INFORMATION: P. Diane Rausch, Committee of Visitors (COV) reports and Advisory Committee Management Officer, stakeholder groups. I. Introduction National Aeronautics and Space STATUS: Open. The U.S. Nuclear Regulatory Administration. LOCATION: This meeting will be held by Commission (NRC) has issued for public [FR Doc. 2010–17201 Filed 7–14–10; 8:45 am] teleconference originating at the comment a draft guide in the agency’s BILLING CODE 7510–13–P National Science Board Office, National ‘‘Regulatory Guide’’ series. This series

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was developed to describe and make received from other persons for For the Nuclear Regulatory Commission. available to the public such information submission to the NRC inform those Mark P. Orr, as methods that are acceptable to the persons that the NRC will not edit their Acting Chief, Regulatory Guide Development NRC staff for implementing specific comments to remove any identifying or Branch, Division of Engineering, Office of parts of the NRC’s regulations, contact information, and therefore, they Nuclear Regulatory Research. techniques that the staff uses in should not include any information in [FR Doc. 2010–17251 Filed 7–14–10; 8:45 am] evaluating specific problems or their comments that they do not want BILLING CODE 7590–01–P postulated accidents, and data that the publicly disclosed. staff needs in its review of applications Federal Rulemaking Web site: Go to for permits and licenses. http://www.regulations.gov and search NUCLEAR REGULATORY The draft regulatory guide, entitled, for documents filed under Docket ID COMMISSION ‘‘Water Sources for Long-Term NRC–2010–0249. Address questions Recirculation Cooling Following a Loss- about NRC dockets to Carol Gallagher [NRC–2010–0143] ’’ Of-Coolant Accident, is temporarily 301–492–3668; e-mail Notice of Intent To Prepare an identified by its task number, DG–1234, [email protected]. Environmental Impact Statement for Mail comments to: Chief, Rules, which should be mentioned in all the Proposed International Isotopes related correspondence. DG–1234 is Announcements, and Directives Branch Uranium Processing Facility proposed Revision 4 of Regulatory (RADB), Office of Administration, Mail Guide 1.82. This revision incorporates Stop: TWB–05–B01M, U.S. Nuclear AGENCY: Nuclear Regulatory current state of knowledge found during Regulatory Commission, Washington, Commission. DC 20555–0001, or by fax to RADB at NRC-sponsored research and plant- ACTION: Notice of Intent. specific analysis and testing applicable (301) 492–3446. to Emergency Core Cooling System You can access publicly available SUMMARY: International Isotopes (ECCS) strainer performance and debris documents related to this notice using Fluorine Products, Inc. (IIFP), a wholly blockage by Loss of Coolant Accident the following methods: owned subsidiary of International (LOCA) generated debris. NRC’s Public Document Room (PDR): Isotopes, Inc. (INIS), submitted a license This guide describes methods that the The public may examine and have application, which included an staff of the U.S. Nuclear Regulatory copied for a fee publicly available Environmental Report (ER) on December Commission considers acceptable to documents at the NRC’s PDR, Room O1 30, 2009, that proposes the construction, implement requirements regarding the F21, One White Flint North, 11555 operation, and decommissioning of a sumps and suppression pools that Rockville Pike, Rockville, Maryland. fluorine extraction and depleted NRC’s Agencywide Documents Access provide water sources for emergency uranium de-conversion facility to be and Management System (ADAMS): core cooling, containment heat removal, located near Hobbs in Lea County, New Publicly available documents created or or containment atmosphere cleanup Mexico. The U.S. Nuclear Regulatory received at the NRC are available systems. It also provides guidelines for Commission (NRC), in accordance with electronically at the NRC’s Electronic evaluating the adequacy and the the National Environmental Policy Act Reading Room at http://www.nrc.gov/ availability of the sump or suppression (NEPA) and its regulations in 10 Code reading-rm/adams.html. From this page, pool for long-term recirculation cooling of Federal Regulations Part 51, the public can gain entry into ADAMS, following a loss-of-coolant accident. announces its intent to prepare an This guide applies to both pressurized- which provides text and image files of NRC’s public documents. If you do not Environmental Impact Statement (EIS) water reactor and boiling-water reactor evaluating this proposed action. The EIS types of light-water reactors. have access to ADAMS or if there are problems in accessing the documents will examine the potential II. Further Information located in ADAMS, contact the NRC’s environmental impacts of the proposed INIS facility. The NRC staff is soliciting comments PDR reference staff at 1–800–397–4209, on DG–1234. Comments may be 301–415–4737, or by e-mail to DATES: NRC invites public comments on accompanied by relevant information or [email protected]. DG–1234 is the appropriate scope of issues to be supporting data, and should mention available electronically under ADAMS considered in the EIS. The public DG–1234 in the subject line. Comments Accession Number ML092850003. The scoping process required by NEPA submitted in writing or in electronic regulatory analysis may be found in begins with publication of this Notice of form will be made available to the ADAMS under Accession No. Intent. Written comments submitted by public in their entirety through the ML101610267. In addition, electronic mail should be postmarked by no later NRC’s Agencywide Documents Access copies of DG–1234 are available through than August 30, 2010 to ensure and Management System (ADAMS). the NRC=s public Web site under Draft consideration. Comments mailed after Comments would be most helpful if Regulatory Guides in the ‘‘Regulatory that date will be considered to the received by September 10, 2010. Guides’’ collection of the NRC’s extent practical. Comments received after that date will Electronic Reading Room at http:// The NRC will conduct a public be considered if it is practical to do so, www.nrc.gov/reading-rm/doc- scoping meeting in Hobbs, New Mexico, but the NRC is able to ensure collections/. to assist in defining the appropriate consideration only for comments Federal Rulemaking Web site: Public scope of the EIS, and to help identify received on or before this date. comments and supporting materials the significant environmental issues that Although a time limit is given, related to this notice can be found at need to be addressed in detail. The comments and suggestions in http://www.regulations.gov by searching meeting date, time, and location are connection with items for inclusion in on Docket ID: NRC–2010–0249. listed below: guides currently being developed or Regulatory guides are not Meeting Date: July 29, 2010. improvements in all published guides copyrighted, and Commission approval Meeting Time: 5:30 p.m. to 8:30 p.m. are encouraged at any time. is not required to reproduce them. Meeting Location: Lea County Event The NRC requests that any party Dated at Rockville, Maryland, this 8th day Center, 5101 Lovington Highway, soliciting or aggregating comments of July 2010. Hobbs, New Mexico 88240.

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ADDRESSES: Members of the public are www.nrc.gov/reading-rm/adams.html. 4.0 Environmental Impact Areas To invited and encouraged to submit Members of the public may access the Be Analyzed written comments regarding the applicant’s ER in the NRC’s (ADAMS) at The following areas have been appropriate scope and content of the accession number ML100120758. tentatively identified for detailed A copy of the applicant’s ER is EIS. Comments may be submitted by analysis in the EIS: available for public inspection at the any one of the methods described • Land Use: plans, policies, and Hobbs Public Library located at 509 below. Please include Docket ID NRC– controls; North Shipp, Hobbs, New Mexico 2010–0143 in the subject line of your • Transportation: transportation 88240. Documents may also be obtained comments. Comments submitted in modes, routes, quantities, and risk from NRC’s Public Document Room at writing or in electronic form will be estimates; U.S. Nuclear Regulatory Commission posted on the NRC’s Agencywide • Geology and Soils: physical Headquarters, 11555 Rockville Pike Documents Access and Management geography, topography, geology, and (first floor), Rockville, Maryland 20852. System (ADAMS) Web site http:// soil characteristics; www.nrc.gov/reading-rm/adams.html SUPPLEMENTARY INFORMATION: • Water Resources: surface and and on the Federal rulemaking Web site 1.0 Background groundwater hydrology, water use and http://www.regulations.gov. Because quality, and the potential for your comments will not be edited to On December 30, 2009, INIS submitted an ER to the NRC as part of degradation; remove any identifying or contact • Ecology: wetlands, aquatic, information, the NRC cautions you its license application for authorization to construct, operate, and decommission terrestrial, economically and against including any information in recreationally important species, and your submission that you do not want a proposed fluorine extraction process and depleted uranium de-conversion threatened and endangered species; to be publicly disclosed. Also, the NRC • Air Quality: meteorological requests that any party soliciting or facility. The EIS will evaluate the potential environmental impacts conditions, ambient background, aggregating comments received from pollutant sources, and the potential for other persons for submission to the NRC associated with the proposed INIS uranium processing facility. The degradation; inform those persons that the NRC will • Noise: ambient, sources, and not edit their comments to remove any environmental evaluation will be documented in the draft and final EISs sensitive receptors; identifying or contact information, and • Historical and Cultural Resources: in accordance with NEPA and NRC’s therefore, they should not include any historical, archaeological, and implementing regulations at 10 CFR part information in their comments that they traditional cultural resources; 51. do not want publicly disclosed. • Visual and Scenic Resources: Federal Rulemaking Web site: Go to 2.0 INIS Uranium Processing Facility landscape characteristics, manmade http://www.regulations.gov and search The INIS facility, if licensed, would features, and viewshed; for documents filed under Docket ID • provide services to the uranium Socioeconomics: demography, NRC–2010–0143. Comments may be economic base, labor pool, housing, submitted electronically through this enrichment industry for de-conversion of depleted uranium hexafluoride transportation, utilities, public services Web site. Address questions about NRC and facilities, education, recreation, and dockets to Carol Gallagher at 301–492– (DUF6) into uranium oxides for long- term stable disposal. The proposed cultural resources; 3668, or e-mail at • Environmental Justice: potential [email protected]. facility would also produce high-purity inorganic fluorides for applications in disproportionately high and adverse Mail/fax comments to: Cindy Bladey, impacts to minority and low-income Chief, Rules, Announcements, and the electronic, solar panel, and semiconductor markets and anhydrous populations; Directives, and Branch (RADB), Division • Public and Occupational Health: of Administrative Services, Office of hydrofluoric acid for various industrial applications. The proposed facility is potential public and occupational Administration, Mail Stop: TWB–05– consequences from construction, B01M, U.S. Nuclear Regulatory projected to be capable of deconverting up to 7.5 million pounds per year of routine operation, transportation, and Commission, Washington, DC 20555– credible accident scenarios (including 0001. Commenters may also send DUF6 provided by commercial enrichment facilities throughout the natural events); comments electronically to • Waste Management: types of wastes _ United States. INIS [email protected] or by fax to expected to be generated, handled, and (301) 492–3446. 3.0 Alternatives To Be Evaluated stored; and FOR FURTHER INFORMATION CONTACT: For No-Action—The no-action alternative • Cumulative Effects: impacts from general or technical information would be to not build the proposed INIS past, present and reasonably foreseeable associated with the licensing review of uranium processing facility. Under this actions at and near the site. the INIS application, please contact alternative, the NRC would not approve This list is not intended to be all Matthew Bartlett at (301) 492–3119 or the license application. This alternative inclusive, nor is it a predetermination of [email protected]. For general serves as a baseline for comparison. potential environmental impacts. The information on the NRC NEPA process Proposed action—The proposed list is presented to facilitate comments or the environmental review process action involves the construction, on the scope of the EIS. Additions to, or related to the INIS application, please operation, and decommissioning of a deletions from this list may occur as a contact Asimios Malliakos at uranium processing facility to be result of the public scoping process. (301) 415–6458 or located near Hobbs, New Mexico. The 5.0 Scoping Meeting [email protected] applicant would be issued an NRC Information and documents license under the provisions of 10 CFR One purpose of this notice is to associated with the INIS project, part 40. encourage public involvement in the including the application and ER, are Other alternatives not listed here may EIS process and to solicit public available for public review through our be identified through the scoping comments on the proposed scope and electronic reading room: http:// process. content of the EIS. Scoping is an early

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and open process designed to determine 6.0 Scoping Comments ACTION: Notice. the range of actions, alternatives, and Members of the public may provide potential impacts to be considered in SUMMARY: In accordance with the comments orally at the transcribed Paperwork Reduction Act of 1995 (Pub. the EIS and to identify the significant public meeting or in writing. Written issues related to the proposed action. It L. 104–13, May 22, 1995 and 5 CFR part comments may be sent by e-mail to 1320), this notice announces that the is intended to solicit input from the _ INIS [email protected] or mailed/faxed to the Office of Personnel Management (OPM) public and other agencies so that the address listed above in the ADDRESSES analysis can be more clearly focused on intends to submit to the Office of Section. Management and Budget (OMB) a issues of genuine concern. The principal At the conclusion of the scoping goals of the scoping process are to: request for comments on an existing process, the NRC staff will prepare a information collection. ‘‘Self- • Ensure that concerns are identified summary of public comments regarding Certification of Full-Time School early and are properly studied; the scope of the environmental review Attendance for the School Year’’ (OMB • Identify alternatives to be and significant issues identified. NRC Control No. 3206–0032; RI 25–14), is examined; staff will send this summary to each used to survey survivor annuitants who • participant in the scoping process for are between the ages of 18 and 22 to Identify significant issues to be whom the staff has an address. This analyzed; determine if they meet the requirements summary and project-related material of Section 8341(a)(4)(C), and Section • Eliminate unimportant issues from will be available for public review 8441, title 5, U.S. Code, to receive detailed consideration; and through our electronic reading room: benefits as a student. ‘‘Information and • Identify public concerns. http://www.nrc.gov/reading-rm/ Instructions for Completing the Self- On July 29, 2010, the NRC will hold adams.html. The scoping meeting Certification of Full-Time School a public scoping meeting at the Lea summaries and project-related materials Attendance’’ (OMB Control No. 3206– County Event Center in Hobbs, New will also be available on the NRC’s INIS 0032; RI 25–14A), provides instructions Mexico, to solicit both oral and written Web page: http://www.nrc.gov/ for completing the Self-Certification of materials/fuel-cycle-fac/ comments from interested parties. The Full-Time School Attendance For The inisfacility.html. meeting will be transcribed to record School Year survey form. public comments. The meeting will 7.0 The NEPA Process Comments are particularly invited on: Whether this collection of information convene at 5:30 p.m. and will continue The EIS for the INIS facility will be until approximately 8:30 p.m. prepared pursuant to the National is necessary for the proper performance The meeting will begin with NRC staff Environmental Policy Act of 1969 as of functions of the Office of Personnel providing a description of the NRC’s amended and the NRC’s NEPA Management, and whether it will have role and mission. A brief overview of Regulations at 10 CFR part 51. After the practical utility; whether our estimate of the licensing process will be followed scoping process is complete, the NRC the public burden of this collection of by a brief description of the will prepare a draft EIS. There will be information is accurate, and based on environmental review process. Most of a 45-day comment period on the draft valid assumptions and methodology; the meeting time will be allotted for EIS and a public meeting to receive and ways in which we can minimize the attendees to make oral comments. comments. Availability of the draft EIS, burden of the collection of information on those who are to respond, through In addition, the NRC staff will host the dates of the public comment period, and information about the public use of the appropriate technological informal discussions for 1 hour prior to collection techniques or other forms of the start of the public meeting. No meeting will be announced in the Federal Register, on NRC’s INIS web information technology. formal comments on the proposed scope We estimate 14,000 RI 25–14s will be page, and in the local news media. The of the EIS will be accepted during the processed annually. We estimate it takes final EIS will include responses to any informal discussions. To be considered, approximately 12 minutes to complete comments received on the draft EIS. comments must be provided either at the form. The estimated annual burden the transcribed public meeting or in Dated at Rockville, Maryland, this 8th day is 2,800 hours. writing, as discussed below. of July, 2010. For copies of this proposal, contact Persons may register to attend or For the Nuclear Regulatory Commission. Cyrus S. Benson on (202) 606–4808, present oral comments at the scoping David Skeen, FAX (202) 606–0910 or e-mail to meeting by contacting Tarsha Moon at Acting Deputy Director, Decommissioning [email protected]. Please include (301) 415–6745, or by sending an e-mail and Uranium Recovery Licensing Directorate, a mailing address with your request. to [email protected] no later than July Division of Waste Management and DATES: Comments on this proposal 22, 2010. Members of the public may Environmental Protection, Office of Federal should be received within 60 days from also register to speak at the meeting and State Materials and Environmental Management Programs. the date of this publication. prior to the start of the session. ADDRESSES: Send or deliver comments Individual oral comments may be [FR Doc. 2010–17253 Filed 7–14–10; 8:45 am] BILLING CODE 7590–01–P to— limited by the time available, depending James K. Freiert (Acting), Deputy on the number of persons who register. Associate Director, Retirement Members of the public who have not Operations, Retirement and Benefits, OFFICE OF PERSONNEL registered may also have an opportunity U.S. Office of Personnel Management, MANAGEMENT to speak, if time permits. If special 1900 E Street, NW., Room 3305, equipment or accommodations are Proposed Collection; Request for Washington, DC 20415–3500. needed to attend or present information Comments on an Existing Information For information regarding at the public meeting, please contact Collection: (OMB Control No. 3206– administrative coordination contact: Tarsha Moon no later than July 19, 0032; RI 25–14 and RI 25–14A) Cyrus S. Benson, Team Leader, 2010, so that the NRC staff can Publications Team, RB/RM/ determine whether the request can be AGENCY: Office of Personnel Administrative Service, U.S. Office of accommodated. Management. Personnel Management, 1900 E Street,

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NW.—Room 4H28, Washington, DC Statement Regarding Patient’s Incident Period: 02/05/2010 through 20415, (202) 606–4808. Capability to Manage Payments; and 02/11/2010. U.S. Office of Personnel Management. RB–5, Your Duties as Representative DATES: Effective Date: 07/07/2010. John Berry, Payee’s Record. Physical Loan Application Deadline Type of request: Extension of a Director. Date: 06/22/2010. currently approved collection. Economic Injury (EIDL) Loan [FR Doc. 2010–17241 Filed 7–14–10; 8:45 am] Affected public: Individuals or Application Deadline Date: 01/24/2011. BILLING CODE 6325–38–P households; Business or other for Profit. ADDRESSES: Submit completed loan Abstract: Under Section 12 of the applications to: U.S. Small Business Railroad Retirement Act, the Railroad Administration, Processing and RAILROAD RETIREMENT BOARD Retirement Board (RRB) may pay Disbursement Center, 14925 Kingsport benefits to a representative payee when Road, Fort Worth, TX 76155. Agency Forms Submitted for OMB an employee, spouse or survivor FOR FURTHER INFORMATION CONTACT: A. Review, Request for Comments annuitant is incompetent or is a minor. Escobar, Office of Disaster Assistance, The collection obtains information SUMMARY: In accordance with the U.S. Small Business Administration, related to the representative payee Paperwork Reduction Act of 1995 (44 409 3rd Street, SW., Suite 6050, application, supporting documentation, U.S.C. Chapter 35), the Railroad Washington, DC 20416. Retirement Board (RRB) is forwarding and the maintenance of records pertaining to the receipt and use of the SUPPLEMENTARY INFORMATION: The notice an Information Collection Request (ICR) of the President’s major disaster to the Office of Information and benefits. Changes Proposed: The RRB proposes declaration for Private Non-Profit Regulatory Affairs (OIRA), Office of no changes to the forms in the organizations in the State of WEST Management and Budget (OMB) to information collection. VIRGINIA, dated 04/23/2010, is hereby request an extension of an existing The burden estimate for the ICR is as amended to include the following areas collection of information: 3220–0052, follows: as adversely affected by the disaster. Application to Act as Representative Estimated annual number of Primary Counties: Grant, Mineral, Payee, consisting of RRB Form(s) AA–5, respondents: 17,300. Monongalia. Application for Substitution of Payee, Total annual responses: 20,300. All other information in the original G–478, Statement Regarding Patient’s Total annual reporting hours: 16,350. declaration remains unchanged. Capability to Manage Payments and Additional Information or Comments: booklet RB–5, Your Duties as (Catalog of Federal Domestic Assistance Copies of the forms and supporting Numbers 59002 and 59008) Representative Payee-Representative documents can be obtained from Payee Record. Our ICR describes the Charles Mierzwa, the agency clearance James E. Rivera, information we seek to collect from the officer (312–751–3363) or Associate Administrator for Disaster public. Completion is required to obtain [email protected]. Assistance. or retain benefits. One response is Comments regarding the information [FR Doc. 2010–17260 Filed 7–14–10; 8:45 am] required of each respondent. Review collection should be addressed to BILLING CODE 8025–01–P and approval by OIRA ensures that we Ronald J. Hodapp, Railroad Retirement impose appropriate paperwork burdens. Board, 844 North Rush Street, Chicago, The RRB invites comments on the Illinois 60611–2092 or SMALL BUSINESS ADMINISTRATION proposed collection of information to [email protected] and to the [Disaster Declaration #12226 and #12227] determine (1) The practical utility of the OMB Desk Officer for the RRB, at the collection; (2) the accuracy of the Office of Management and Budget, Minnesota Disaster #MN–00025 estimated burden of the collection; (3) Room 10230, New Executive Office AGENCY: ways to enhance the quality, utility and Building, Washington, DC 20503. U.S. Small Business clarity of the information that is the Administration. subject of collection; and (4) ways to Charles Mierzwa, ACTION: Notice. minimize the burden of collections on Clearance Officer. respondents, including the use of [FR Doc. 2010–17202 Filed 7–14–10; 8:45 am] SUMMARY: This is a notice of an automated collection techniques or BILLING CODE 7905–01–P Administrative declaration of a disaster other forms of information technology. for the State of Minnesota dated 07/08/ Comments to RRB or OIRA must contain 2010. Incident: Severe Storms and the OMB control number of the ICR. For SMALL BUSINESS ADMINISTRATION proper consideration of your comments, Tornadoes. it is best if RRB and OIRA receive them [Disaster Declaration #12140 and #12141] Incident Period: 06/17/2010 through within 30 days of publication date. 06/26/2010. West Virginia Disaster Number WV– Effective Date: 07/08/2010. Previous Requests for Comments: The 00018 RRB has already published the initial Physical Loan Application Deadline Date: 09/07/2010. 60-day notice (75 FR No. 63 on 16875 AGENCY: U.S. Small Business Economic Injury (EIDL) Loan on April 2, 2010) required by 44 U.S.C. Administration. Application Deadline Date: 04/08/2011. 3506(c)(2). That request elicited no ACTION: Amendment 1. comments. ADDRESSES: Submit completed loan SUMMARY: This is an amendment of the applications to: U.S. Small Business Information Collection Request (ICR) Presidential declaration of a major Administration, Processing And Title: Application to Act as disaster for Public Assistance Only for Disbursement Center, 14925 Kingsport Representative Payee. the State of WEST VIRGINIA (FEMA– Road, Fort Worth, TX 76155. OMB Control Number: 3220–0052. 1903–DR), dated 04/23/2010. FOR FURTHER INFORMATION CONTACT: A. Form(s) submitted: AA–5, Application Incident: Severe Winter Storms and Escobar, Office of Disaster Assistance, for Substitution of Payee; G–478, Snowstorms. U.S. Small Business Administration,

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409 3rd Street, SW., Suite 6050, Incident Period: 06/12/2010 through U.S. Small Business Administration, Washington, DC 20416. 06/29/2010. 409 3rd Street, SW., Suite 6050, SUPPLEMENTARY INFORMATION: Notice is DATES: Effective Date: 07/08/2010. Washington, DC 20416. hereby given that as a result of the Physical Loan Application Deadline SUPPLEMENTARY INFORMATION: The notice Administrator’s disaster declaration, Date: 08/23/2010. of the Presidential disaster declaration applications for disaster loans may be Economic Injury (EIDL) Loan for the State of West Virginia, dated filed at the address listed above or other Application Deadline Date: 03/24/2011. 06/24/2010 is hereby amended to locally announced locations. ADDRESSES: Submit completed loan include the following areas as adversely The following areas have been applications to: U.S. Small Business affected by the disaster: determined to be adversely affected by Administration, Processing and Primary Counties: (Physical Damage and the disaster: Disbursement Center, 14925 Kingsport Economic Injury Loans): Lewis. Primary Counties: Otter Tail, Wadena. Road, Fort Worth, TX 76155. Contiguous Counties: (Economic Injury Contiguous Counties: Minnesota: FOR FURTHER INFORMATION CONTACT: A. Loans Only): Becker, Cass, Clay, Douglas, Grant, Escobar, Office of Disaster Assistance, West Virginia: Braxton, Doddridge, Hubbard, Todd, Wilkin. U.S. Small Business Administration, Gilmer, Harrison, Upshur, Webster. The Interest Rates are: 409 3rd Street, SW., Suite 6050, All other information in the original Washington, DC 20416 declaration remains unchanged. SUPPLEMENTARY INFORMATION: The notice (Catalog of Federal Domestic Assistance For Physical Damage: Numbers 59002 and 59008) Homeowners with Credit Avail- of the President’s major disaster able Elsewhere ...... 5.500 declaration for Private Non-Profit James E. Rivera, Homeowners without Credit organizations in the State of West Associate Administrator for Disaster Available Elsewhere ...... 2.750 Virginia, dated 06/24/2010, is hereby Assistance. Businesses with Credit Avail- amended to establish the incident [FR Doc. 2010–17317 Filed 7–14–10; 8:45 am] able Elsewhere ...... 6.000 period for this disaster as beginning BILLING CODE 8025–01–P Businesses without Credit 06/12/2010 and continuing through Available Elsewhere ...... 4.000 06/29/2010. Non-Profit Organizations with All other information in the original SMALL BUSINESS ADMINISTRATION Credit Available Elsewhere ... 3.625 declaration remains unchanged. Non-Profit Organizations with- [Disaster Declaration #12210 and #12211] out Credit Available Else- (Catalog of Federal Domestic Assistance where ...... 3.000 Numbers 59002 and 59008) West Virginia Disaster Number WV– For Economic Injury: 00020 Businesses & Small Agricul- James E. Rivera, tural Cooperatives without Associate Administrator for Disaster AGENCY: U.S. Small Business Credit Available Elsewhere 4.000 Assistance. Administration. Non-Profit Organizations [FR Doc. 2010–17314 Filed 7–14–10; 8:45 am] ACTION: Amendment 2. without Credit Available BILLING CODE 8025–01–P Elsewhere ...... 3.000 SUMMARY: This is an amendment of the Presidential declaration of a major The number assigned to this disaster SMALL BUSINESS ADMINISTRATION disaster for the State of for physical damage is 12226 B and for West Virginia (FEMA–1918–DR), economic injury is 12227 0. [Disaster Declaration #12210 and #12211] dated 06/24/2010. The State which received an EIDL Incident: Severe storms, flooding, West Virginia Disaster Number WV– Declaration # is Minnesota. mudslides, and landslides. 00020 (Catalog of Federal Domestic Assistance Incident Period: 06/12/2010 through Numbers 59002 and 59008) AGENCY: U.S. Small Business 06/29/2010. Administration. DATES: Effective Date: 07/08/2010. Karen G. Mills, ACTION: Amendment 1. Physical Loan Application Deadline Administrator. Date: 08/23/2010. [FR Doc. 2010–17263 Filed 7–14–10; 8:45 am] SUMMARY: This is an amendment of the EIDL Loan Application Deadline Date: BILLING CODE 8025–01–P Presidential declaration of a major 03/24/2011. disaster for the State of West Virginia ADDRESSES: Submit completed loan (FEMA–1918–DR), dated 06/24/2010. applications to: U.S. Small Business SMALL BUSINESS ADMINISTRATION Incident: Severe storms, flooding, Administration, Processing And [Disaster Declaration #12212 and #12213] mudslides, and landslides. Disbursement Center, 14925 Kingsport Incident Period: 06/12/2010 and Road, Fort Worth, TX 76155. West Virginia Disaster Number WV– continuing. FOR FURTHER INFORMATION CONTACT: A. 00021 DATES: Effective Date: 07/08/2010. Escobar, Office of Disaster Assistance, Physical Loan Application Deadline AGENCY: U.S. Small Business U.S. Small Business Administration, Date: 08/23/2010. Administration. 409 3rd Street, SW., Suite 6050, EIDL Loan Application Deadline Date: Washington, DC 20416. ACTION: Amendment 1. 03/24/2011. SUPPLEMENTARY INFORMATION: The notice SUMMARY: This is an amendment of the ADDRESSES: Submit completed loan of the President’s major disaster Presidential declaration of a major applications to: U.S. Small Business declaration for the State of West disaster for Public Assistance Only for Administration, Processing And Virginia, dated 06/24/2010 is hereby the State of West Virginia (FEMA–1918– Disbursement Center, 14925 Kingsport amended to establish the incident DR), dated 06/24/2010. Road, Fort Worth, TX 76155. period for this disaster as beginning Incident: Severe storms, flooding, FOR FURTHER INFORMATION CONTACT: A. 06/12/2010 and continuing through mudslides, and landslides. Escobar, Office of Disaster Assistance, 06/29/2010 .

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All other information in the original SECURITIES AND EXCHANGE Written comments are invited on (a) declaration remains unchanged. COMMISSION Whether the proposed collection of (Catalog of Federal Domestic Assistance information is necessary for the proper Numbers 59002 and 59008) Proposed Collection; Comment performance of the functions of the Request Commission, including whether the James E. Rivera, information shall have practical utility; Associate Administrator for Disaster Upon Written Request, Copies Available (b) the accuracy of the Commission’s Assistance. From: Securities and Exchange estimate of the burden of the proposed [FR Doc. 2010–17315 Filed 7–14–10; 8:45 am] Commission, Office of Investor collection of information; (c) ways to Education and Advocacy, BILLING CODE 8025–01–P enhance the quality, utility, and clarity Washington, DC 20549–0213. of the information to be collected; and Extension: (d) ways to minimize the burden of the SMALL BUSINESS ADMINISTRATION Rule 6h–1; SEC File No. 270–497; OMB collection of information on Control No. 3235–0555. respondents, including through the use [Disaster Declaration #12040 and #12041] Notice is hereby given that, pursuant of automated collection techniques or to the Paperwork Reduction Act of 1995 other forms of information technology. Virginia Disaster Number VA–00028 (44 U.S.C. 3501 et seq.), the Securities Consideration will be given to and Exchange Commission comments and suggestions submitted in AGENCY: U.S. Small Business (‘‘Commission’’) is soliciting comments writing within 60 days of this Administration. on the existing collection of information publication. Please direct your written comments ACTION: Amendment 4. provided for in Rule 6h–1 (17 CFR 240.6h–1) under the Securities to: Charles Boucher, Director/Chief Information Officer, Securities and SUMMARY: This is an amendment of the Exchange Act of 1934, as amended (‘‘Act’’) (15 U.S.C. 78a et seq.). The Exchange Commission, c/o Shirley Presidential declaration of a major Martinson, 6432 General Green Way, disaster for Public Assistance Only for Commission plans to submit this existing collection of information to the Alexandria, VA 22312 or send an e-mail the Commonwealth of Virginia (FEMA– to: [email protected]. 1874–DR), dated 02/16/2010. Office of Management and Budget for extension and approval. Dated: July 8, 2010. Incident: Severe Winter Storm and Section 6(h) of the Act (15 U.S.C. Florence E. Harmon, Snowstorm. 78f(h)) requires national securities Deputy Secretary. Incident Period: 12/18/2009 through exchanges and national securities [FR Doc. 2010–17195 Filed 7–14–10; 8:45 am] 12/20/2009. associations that trade security futures BILLING CODE 8010–01–P Effective Date: 07/07/2010. products to establish listing standards Physical Loan Application Deadline that, among other things, require that: (i) SECURITIES AND EXCHANGE Date: 04/19/2010. Trading in such products not be readily susceptible to price manipulation; and COMMISSION Economic Injury (EIDL) Loan (ii) the market on which the security Application Deadline Date: 11/16/2010. [Release No. 34–62473; File No. SR–ISE– futures product trades has in place 2010–74] ADDRESSES: Submit completed loan procedures to coordinate trading halts applications to: U.S. Small Business with the listing market for the security Self-Regulatory Organizations; Administration, Processing and or securities underlying the security International Securities Exchange, Disbursement Center, 14925 Kingsport futures product. Rule 6h–1 implements LLC; Notice of Filing and Immediate Road, Fort Worth, TX 76155. these statutory requirements and Effectiveness of Proposed Rule requires that (1) the final settlement Change to List and Trade Options on FOR FURTHER INFORMATION CONTACT: A. price for each cash-settled security the Sprott Physical Gold Trust Escobar, Office of Disaster Assistance, futures product fairly reflects the U.S. Small Business Administration, opening price of the underlying security July 8, 2010. 409 3rd Street, SW., Suite 6050, or securities, and (2) the exchanges and Pursuant to Section 19(b)(1) of the Washington, DC 20416. associations trading security futures Securities Exchange Act of 1934 (the ‘‘ ’’ 1 2 products halt trading in any security Act ), and Rule 19b–4 thereunder, SUPPLEMENTARY INFORMATION: The notice notice is hereby given that on July 7, of the President’s major disaster futures product for as long as trading in the underlying security, or trading in 2010, the International Securities declaration for Private Non-Profit Exchange, LLC (the ‘‘Exchange’’ or the 50% of the underlying securities, is organizations in the Commonwealth of ‘‘ISE’’) filed with the Securities and halted on the listing market. Virginia, dated 02/16/2010, is hereby Exchange Commission (‘‘Commission’’) It is estimated that approximately 18 amended to include the following areas the proposed rule change as described respondents, consisting of 14 national as adversely affected by the disaster. in Items I and II below, which items securities exchanges and 4 national Primary Counties: Buena Vista City. have been prepared by the Exchange. securities exchanges notice-registered ISE filed the proposal pursuant to All other information in the original pursuant to Section 6(g) of the Act (15 Section 19(b)(3)(A) of the Act 3 and Rule declaration remains unchanged. U.S.C. 78f(g)), will incur an average 19b–4(f)(6) thereunder,4 which renders (Catalog of Federal Domestic Assistance burden of 10 hours per year to comply the proposal effective upon filing with Numbers 59002 and 59008) with this rule, for a total burden of 180 the Commission. The Commission is hours. At an average cost per hour of publishing this notice to solicit James E. Rivera, approximately $316, the resultant total Associate Administrator for Disaster cost of compliance for the respondents 1 15 U.S.C. 78s(b)(1). Assistance. × is $56,880 per year (18 respondents 10 2 17 CFR 240.19b–4. [FR Doc. 2010–17262 Filed 7–14–10; 8:45 am] hours/respondent × $316/hour = 3 15 U.S.C. 78s(b)(3)(A). BILLING CODE 8025–01–P $56,880). 4 17 CFR 240.19b–4(f)(6).

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comments on the proposed rule change management investment companies, paid a specified portfolio of securities from interested persons. unit investment trusts or similar entities and/or cash with a value equal to the that hold portfolios of securities and/or next determined NAV (‘‘Managed Fund I. Self-Regulatory Organization’s financial instruments, including, but not Share’’) are eligible as underlying Statement of the Terms of Substance of limited to, stock index futures contracts, securities for options traded on the the Proposed Rule Change options on futures, options on securities Exchange.9 This rule change proposes to The Exchange proposes to amend its and indices, equity caps, collars and expand the types of ETFs that may be rules to enable the listing and trading on floors, swap agreements, forward approved for options trading on the the Exchange of options on the Sprott contracts, repurchase agreements and Exchange to include the Sprott Physical Physical Gold Trust. The text of the reverse repurchase agreements (the Gold Trust. proposed rule change is available on the ‘‘Financial Instruments’’), and money Apart from allowing the Sprott Exchange’s Web site http:// market instruments, including, but not Physical Gold Trust to be an underlying www.ise.com, at the principal office of limited to, U.S. government securities for options traded on the Exchange as the Exchange, and at the Commission’s and repurchase agreements (the ‘‘Money described above, the listing standards Public Reference Room. Market Instruments’’) comprising or for ETFs will remain unchanged from otherwise based on or representing those that apply under current Exchange II. Self-Regulatory Organization’s rules. ETFs on which options may be Statement of the Purpose of, and investments in broad-based indexes or portfolios of securities and/or Financial listed and traded must still be listed and Statutory Basis for, the Proposed Rule traded on a national securities exchange Change Instruments and Money Market Instruments (or that hold securities in and must satisfy the other listing standards set forth in ISE Rule 502(h). In its filing with the Commission, the one or more other registered investment Exchange included statements Specifically, in addition to satisfying companies that themselves hold such the aforementioned listing concerning the purpose of, and basis for, portfolios of securities and/or Financial the proposed rule change and discussed requirements, ETFs must meet either (1) Instruments and Money Market the criteria and guidelines under ISE any comments it received on the Instruments) or (ii) represent interests in proposed rule change. The text of these Rules 502(a) and (b) or (2) they must be a trust that holds a specified non-U.S. available for creation or redemption statements may be examined at the currency or currencies deposited with places specified in Item IV below. The each business day from or through the the trust when aggregated in some issuing trust, investment company, self-regulatory organization has specified minimum number may be prepared summaries, set forth in commodity pool or other entity in cash surrendered to the trust by the or in kind at a price related to net asset Sections A, B and C below, of the most beneficial owner to receive the specified significant aspects of such statements. value, and the issuer must be obligated non-U.S. currency or currencies and to issue Exchange-Traded Fund Shares A. Self-Regulatory Organization’s pays the beneficial owner interest and in a specified aggregate number even if Statement of the Purpose of, and other distributions on the deposited some or all of the investment assets and/ Statutory Basis for, the Proposed Rule non-U.S. currency or currencies, if any, or cash required to be deposited have Change declared and paid by the trust (‘‘Funds’’) not been received by the issuer, subject or (iii) represent commodity pool 1. Purpose to the condition that the person interests principally engaged, directly or obligated to deposit the investment Recently, the U.S. Securities and indirectly, in holding and/or managing assets has undertaken to deliver them as Exchange Commission (‘‘SEC’’ or portfolios or baskets of securities, soon as possible and such undertaking ‘‘Commission’’) authorized ISE to list commodity futures contracts, options on is secured by the delivery and and trade options on the SPDR Gold commodity futures contracts, swaps, maintenance of collateral consisting of Trust,5 the iShares COMEX Gold Trust forward contracts and/or options on cash or cash equivalents satisfactory to and the iShares Silver Trust,6 the ETFS physical commodities and/or non-U.S. the issuer, as provided in the respective Gold Trust and the ETFS Silver Trust,7 currency (‘‘Commodity Pool ETFs’’) or prospectus. the ETFS Palladium Trust and the ETFS (iv) represent interests in the SPDR® The Exchange states that the current Platinum Trust.8 Now, the Exchange Gold Trust, the iShares COMEX Gold continued listing standards for options proposes to list and trade options on the Trust, the iShares Silver Trust, the ETFS on ETFs will apply to options on the Sprott Physical Gold Trust. Gold Trust, the ETFS Silver Trust, the Sprott Physical Gold Trust. Specifically, Under current Rule 502(h), only ETFS Palladium Trust or the ETFS under ISE Rule 503(h), options on Exchange-Traded Fund Shares, or ETFs, Platinum Trust or (v) represents an Exchange-Traded Fund Shares may be that are traded on a national securities interest in a registered investment subject to the suspension of opening exchange and are defined as an ‘‘NMS’’ company (‘‘Investment Company’’) transactions in any of the following stock under Rule 600 of Regulation organized as an open-end management circumstances: (1) In the case of options NMS, and that (i) represent interests in company or similar entity, that invests covering Exchange-Traded Fund Shares registered investment companies (or in a portfolio of securities selected by approved pursuant to Rule 502(h)(A)(i), series thereof) organized as open-end the Investment Company’s investment in accordance with the terms of adviser consistent with the Investment subparagraphs (b)(1), (2), (3) and (4) of 5 See Securities Exchange Act Release No. 57894 Company’s investment objectives and Rule 503; (2) in the case of options (May 30, 2008), 73 FR 32061 (June 5, 2008) (SR– policies, which is issued in a specified covering Exchange-Traded Fund Shares ISE–2008–12). 6 See Securities Exchange Act Release No. 59055 aggregate minimum number in return approved pursuant to Rule 502(h)(A)(ii), (December 4, 2008), 73 FR 75148 (December 10, for a deposit of a specified portfolio of following the initial twelve-month 2008) (SR–ISE–2008–58). securities and/or a cash amount with a period beginning upon the 7 See Securities Exchange Act Release No. 61483 value equal to the next determined net commencement of trading of the (February 3, 2010), 75 FR 6753 (February 10, 2010) asset value (‘‘NAV’’), and when Exchange-Traded Fund Shares, there are (SR–ISE–2009–106). 8 See Securities Exchange Act Release No. 61983 aggregated in the same specified fewer than 50 record and/or beneficial (April 26, 2010), 75 FR 23314 (May 3, 2010) (SR– minimum number, may be redeemed at ISE–2010–19). a holder’s request, which holder will be 9 See ISE Rule 502(h).

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holders of the Exchange-Traded Fund investors by providing them with notes the proposal is substantively Shares for 30 or more consecutive valuable risk management tools. identical to a proposal that was recently approved by the Commission, and does trading days; (3) the value of the B. Self-Regulatory Organization’s not raise any new regulatory issues.17 underlying gold is no longer calculated Statement on Burden on Competition or available; or (4) such other event For these reasons, the Commission occurs or condition exists that in the The proposed rule change does not designates the proposed rule change as opinion of the Exchange makes further impose any burden on competition that operative upon filing. dealing on the Exchange inadvisable. is not necessary or appropriate in At any time within 60 days of the furtherance of the purposes of the Act. filing of the proposed rule change, the Additionally, the Sprott Physical Gold Commission may summarily abrogate Trust shall not be deemed to meet the C. Self-Regulatory Organization’s such rule change if it appears to the requirements for continued approval, Statement on Comments on the Commission that such action is and the Exchange shall not open for Proposed Rule Change Received From necessary or appropriate in the public trading any additional series of option Members, Participants or Others interest, for the protection of investors, contracts of the class covering the Sprott The Exchange has not solicited, and or otherwise in furtherance of the Physical Gold Trust, if the Sprott does not intend to solicit, comments on purposes of the Act. Physical Gold Trust ceases to be an this proposed rule change. The ‘‘NMS stock’’ as provided for in ISE Rule Exchange has not received any IV. Solicitation of Comments 503(b)(5) or the Sprott Physical Gold unsolicited written comments from Interested persons are invited to Trust is halted from trading on its members or other interested parties. submit written data, views, and primary market. III. Date of Effectiveness of the arguments concerning the foregoing, The addition of the Sprott Physical Proposed Rule Change and Timing for including whether the proposed rule Gold Trust to ISE Rule 502(h) will not Commission Action change is consistent with the Act. have any effect on the rules pertaining Comments may be submitted by any of Because the foregoing proposed rule to position and exercise limits 10 or the following methods: change does not significantly affect the margin.11 protection of investors or the public Electronic Comments The Exchange represents that its interest, does not impose any significant • Use the Commission’s Internet surveillance procedures applicable to burden on competition, and, by its comment form (http://www.sec.gov/ trading in options on the Sprott Physical terms, does not become operative for 30 rules/sro.shtml); or Gold Trust will be similar to those days from the date on which it was • Send an e-mail to rule- applicable to all other options on other filed, or such shorter time as the [email protected]. Please include File ETFs currently traded on the Exchange. Commission may designate, it has Number SR–ISE–2010–74 on the subject Also, the Exchange may obtain become effective pursuant to Section line. information from the New York 19(b)(3)(A) 14 of the Act and Rule 19b– Mercantile Exchange, Inc. (‘‘NYMEX’’) (a 4(f)(6) 15 thereunder. The Exchange Paper Comments member of the Intermarket Surveillance provided the Commission with written • Send paper comments in triplicate Group) related to any financial notice of its intent to file the proposed to Elizabeth M. Murphy, Secretary, instrument that is based, in whole or in rule change, along with a brief Securities Exchange Commission, 100 F part, upon an interest in or performance description and text of the proposed Street, NE., Washington, DC 20549– of gold. rule change, at least five business days 1090. 2. Statutory Basis prior to the date of filing the proposed All submissions should refer to File rule change. Number SR–ISE–2010–74. This file The proposed rule change is A proposed rule change filed under number should be included on the consistent with Section 6(b) 12 of the Rule 19b–4(f)(6) normally does not subject line if e-mail is used. To help the Securities Exchange Act of 1934 (the become operative for 30 days after the Commission process and review your ‘‘Act’’), in general, and furthers the date of filing. However, Rule 19b– comments more efficiently, please use objectives of Section 6(b)(5) 13 in 4(f)(6)(iii) permits the Commission to only one method. The Commission will particular, in that it is designed to designate a shorter time if such action post all comments on the Commission’s prevent fraudulent and manipulative is consistent with the protection of Internet Web site (http://www.sec.gov/ acts and practices, to promote just and investors and the public interest. The rules/sro.shtml). Copies of the equitable principles of trade, to foster Exchange requests that the Commission submission, all subsequent cooperation and coordination with waive the 30-day operative delay so that amendments, all written statements persons engaged in facilitating the Exchange can list and trade options with respect to the proposed rule transactions in securities, and to remove on the Sprott Physical Gold Trust change that are filed with the impediments to and perfect the immediately. The Commission believes Commission, and all written mechanisms of a free and open market that waiving the 30-day operative delay communications relating to the and a national market system in a is consistent with the protection of proposed rule change between the manner consistent with the protection investors and the public interest to Commission and any person, other than of investors and the public interest. In permit the Exchange to list and trade those that may be withheld from the particular, the Exchange believes that options on the Sprott Physical Gold public in accordance with the amending its rules to accommodate the Trust without delay.16 The Commission provisions of 5 U.S.C. 552, will be listing and trading of options on the available for Web site viewing and Sprott Physical Gold Trust will benefit 14 15 U.S.C. 78s(b)(3)(A). printing in the Commission’s Public 15 17 CFR 240.19b–4(f)(6). Reference Room, 100 F Street, NE., 16 For purposes only of waiving the 30-day 10 See ISE Rules 412 and 414. operative delay, the Commission has also Washington, DC 20549, on official 11 See ISE Rule 1202. considered the proposed rule’s impact on 12 15 U.S.C. 78f(b). efficiency, competition, and capital formation. See 17 See Securities Exchange Act Release No. 62463 13 15 U.S.C. 78f(b)(5). 15 U.S.C. 78c(f). (July 7, 2010) (SR–CBOE–2010–043).

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business days between the hours of 10 rule change as described in Items I, II, A. Self-Regulatory Organization’s a.m. and 3 p.m. Copies of the filing also and III, below, which Items have been Statement of the Purpose of, and will be available for inspection and prepared by the Exchange. The Statutory Basis for, the Proposed Rule copying at the principal office of the Commission is publishing this notice to Change Exchange. All comments received will solicit comments on the proposed rule be posted without change; the change from interested persons. 1. Purpose Commission does not edit personal I. Self-Regulatory Organization’s The Exchange proposes to amend its identifying information from Statement of the Terms of Substance of current fees and rebates for adding and submissions. You should submit only the Proposed Rule Change removing liquidity by implementing a information that you wish to make fee for adding liquidity. Specifically, the available publicly. All submissions The Exchange proposes to amend the should refer to File Number SR–ISE– fees and rebates for adding and Exchange proposes to assess a $0.05 per 2010–74 and should be submitted on or removing liquidity for options overlying contract fee for Firms and Broker- before August 5, 2010. various select symbols. Dealers who add liquidity in select While changes to the Fee Schedule symbols.3 The Exchange is proposing For the Commission, by the Division of pursuant to this proposal are effective these fees in order to support increased Trading and Markets, pursuant to delegated upon filing, the Exchange has authority.18 bandwidth usage. designated these changes to be operative The Exchange currently assesses a Florence E. Harmon, for transactions settling on or after July Deputy Secretary. 1, 2010. per-contract transaction charge in [FR Doc. 2010–17194 Filed 7–14–10; 8:45 am] The text of the proposed rule change various select Symbols on six different BILLING CODE 8010–01–P is available on the Exchange’s Web site categories of market participants that at http://nasdaqtrader.com/ submit orders and/or quotes that micro.aspx?id=PHLXfilings, at the remove, or ‘‘take,’’ liquidity from the SECURITIES AND EXCHANGE principal office of the Exchange, at the Exchange: (i) Specialists,4 Registered COMMISSION Commission’s Public Reference Room, Options Traders (‘‘ROTs’’),5 Streaming ‘‘ ’’ 6 [Release No. 34–62472; File No. SR–Phlx– and on the Commission’s Web site at Quote Traders ( SQTs ) and Remote 7 2010–94] http://www.sec.gov. Streaming Quote Traders (‘‘RSQTs’’); (ii) customers; 8 (iii) specialists, SQTs II. Self-Regulatory Organization’s Self-Regulatory Organizations; and RSQTs that receive Directed Orders Statement of the Purpose of, and NASDAQ OMX PHLX, Inc.; Notice of ‘‘ ’’ 9 ‘‘ Statutory Basis for, the Proposed Rule ( Directed Participants or Directed 10 Filing and Immediate Effectiveness of Change Specialists, RSQTs, or SQTs’’ ); (iv) a Proposed Rule Change Relating to Firms; (v) broker-dealers; and (vi) the Fees and Rebates for Adding and In its filing with the Commission, the Professionals.11 The current per- Removing Liquidity Exchange included statements contract transaction charge depends on concerning the purpose of and basis for the category of market participant July 8, 2010. the proposed rule change and discussed submitting an order or quote to the Pursuant to Section 19(b)(1) of the any comments it received on the Exchange that removes liquidity. Securities Exchange Act of 1934 proposed rule change. The text of these (‘‘Act’’),1 and Rule 19b–4 thereunder,2 statements may be examined at the The per-contract transaction charges notice is hereby given that on June 29, places specified in Item IV below. The that are currently assessed on 2010, NASDAQ OMX PHLX, Inc. Exchange has prepared summaries, set participants who submit proprietary (‘‘Phlx’’ or ‘‘Exchange’’) filed with the forth in sections A, B, and C below, of quotes and/or orders that remove Securities and Exchange Commission the most significant aspects of such liquidity in the applicable Symbols are, (‘‘SEC’’ or ‘‘Commission’’) the proposed statements. by category:

Category Charge

Customer ...... $0.25 per contract. Directed Participants ...... $0.30 per contract.

18 17 CFR 200.30–3(a)(12). Exchange located on the trading floor who has 8 This applies to all customer orders, directed and 1 15 U.S.C. 78s(b)(1). received permission from the Exchange to trade in non-directed. 2 17 CFR 240.19b–4. options for his own account. A ROT includes a 9 For purposes of the fees and rebates related to SQT, a RSQT and a Non-SQT, which by definition 3 The fees and rebates for adding and removing adding and removing liquidity, A Directed is neither a SQT or a RSQT. See Exchange Rule liquidity are applicable to executions in options Participant is a Specialist, SQT, or RSQT that 1014 (b)(i) and (ii). overlying AA, AAPL, ABK, ABX, AIG, ALL, AMD, executes a customer order that is directed to them 6 An SQT is an Exchange Registered Options AMR, AMZN, ARIA, AXP, BAC, BRCD, C, CAT, Trader (‘‘ROT’’) who has received permission from by an Order Flow Provider and is executed CIEN, CIGX, CSCO, DELL, DIA, DNDN, DRYS, the Exchange to generate and submit option electronically on PHLX XL II. EBAY, EK, F, FAS, FAZ, GDX, GE, GLD, GLW, GS, quotations electronically through an electronic 10 See Exchange Rule 1080(l), ‘‘* * * The term HAL, IBM, INTC, IWM, IYR, JPM, LVS, MGM, interface with AUTOM via an Exchange approved ‘Directed Specialist, RSQT, or SQT’ means a MOT, MSFT, MU, NEM, NOK, NVDA, ONNN, proprietary electronic quoting device in eligible specialist, RSQT, or SQT that receives a Directed ORCL, PALM, PFE, POT, QCOM, QID, QQQQ, RIG, options to which such SQT is assigned. See Order.’’ A Directed Participant has a higher quoting RIMM, RMBS, SBUX, SDS, SIRI, SKF, SLV, SMH, Exchange Rule 1014(b)(ii)(A). SNDK, SPY, T, TBT, TZA, UAUA, UNG, USO, requirement as compared with a specialist, SQT or 7 An RSQT is an ROT that is a member or member UYG, V, VALE, VZ, WYNN, X, XHB, XLF, XRX and RSQT who is not acting as a Directed Participant. organization with no physical trading floor See Exchange Rule 1014. YHOO (‘‘Symbols’’). presence who has received permission from the 4 11 ‘‘ ’’ A Specialist is an Exchange member who is Exchange to generate and submit option quotations The Exchange defines a professional as any registered as an options specialist pursuant to Rule electronically through AUTOM in eligible options person or entity that (i) is not a broker or dealer in 1020(a). to which such RSQT has been assigned. An RSQT securities, and (ii) places more than 390 orders in 5 A Registered Option Trader is defined in may only submit such quotations electronically listed options per day on average during a calendar Exchange Rule 1014(b) as a regular member or a from off the floor of the Exchange. See Exchange month for its own beneficial account(s) (hereinafter foreign currency options participant of the Rule 1014(b)(ii)(B). ‘‘Professional’’).

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Category Charge

Specialist, ROT, SQT, RSQT ...... $0.32 per contract. Firms ...... $0.45 per contract. Broker-Dealers ...... $0.45 per contract. Professional ...... $0.40 per contract.

The Exchange also currently assesses select Symbols. The amount of the and Offer. Specifically, the per-contract a per-contract rebate relating to rebate depends on the category of rebates are, by category: transaction charges for orders or participant whose order or quote was quotations that add liquidity in the executed as part of the Phlx Best Bid

Category Rebate

Customer ...... $0.20 per contract. Directed Participants ...... $0.25 per contract. Specialist, ROT, SQT, RSQT ...... $0.23 per contract. Firms ...... $0.00 per contract. Broker-Dealers ...... $0.00 per contract. Professional ...... $0.20 per contract.

The Exchange proposes to assess a Proprietary orders and a fee of $0.20 for the proposed fees are fair, equitable and $0.05 per contract fee for adding Non-ISE Market maker (FARMM) orders not unfairly discriminatory because the liquidity in the select Symbols for Firms for adding liquidity in certain proposed fees are consistent with price and Broker-Dealers. Today, Firms and symbols.14 In addition, the Exchange differentiation that exists today at all Broker-Dealers receive no rebate for also believes that these fees are option exchanges. adding liquidity, therefore the proposal reasonable because the net differential Differentiated pricing is typical in constitutes a $0.05 fee increase for those between the proposed fee for adding mature, competitive markets and is participants. liquidity and the proposed fee for generally understood to benefit While changes to the Fee Schedule removing liquidity is similar to the purchasers. Simply put, investor pursuant to this proposal are effective $0.30 net differential that exists today at protection is furthered by the lowering upon filing, the Exchange has ISE as between a Market Maker Plus of prices and by robust competition, not designated these changes to be operative receiving a $0.10 rebate and a Non-ISE by a regulatory paradigm that (contrary for transactions settling on or after July Market Maker (FARMM) being assessed to current economic thought) enforces 1, 2010. a $0.20 fee for adding liquidity. price rigidity and uniformity while The Exchange believes that the price looking askance at attempts to reduce 2. Statutory Basis differentiation between Firms and prices. As Congress and the Commission The Exchange believes that its Brokers-Dealers and Specialists, ROTs, both recognize, nothing is more proposal to amend its Fee Schedule is SQTs and RSQTs 15 is justified in that important to fostering a national market consistent with Section 6(b) of the Act 12 the Specialists, ROTs, SQTs and RSQTs system than competition—and few in general, and furthers the objectives of have obligations to the market, which things are more important to Section 6(b)(4) of the Act 13 in do not apply to Firms and Broker- competition than the ability to quickly particular, in that it is an equitable Dealers.16 The concept of incenting alter prices or other terms to respond to allocation of reasonable fees and other market makers, who have quoting competition or win a significant new charges among Exchange members. The obligations, with a rebate is not novel.17 customer. Price rigidity and uniformity impact of the proposal upon the net fees The Exchange believes that it is are signs of a stagnant market, not a paid by a particular market participant equitable to assess a $0.05 fee for adding vibrant one; regulation of differential will depend on a number of variables, liquidity on Firms and Broker-Dealers pricing should be reserved to anti- including its monthly volumes, the who have no such quoting requirements competitive conduct that impedes the order types it uses, and the prices of its as do market makers. In addition, the objectives of the securities laws. quotes and orders (i.e., its propensity to Exchange believes that by not assessing The Exchange operates in a highly add or remove liquidity). The Exchange a fee on customers for adding liquidity competitive market in which market believes that its proposal to assess a and providing a $.20 per contract rebate participants can readily direct order $0.05 per contract for Firms and Broker- for adding liquidity incentivizes flow to competing venues if they deem Dealers adding liquidity in the select customer order flow to the Exchange. fee levels at a particular venue to be Symbols is reasonable because the fee is Moreover, the Exchange believes that excessive. The Exchange believes the within the range of fees assessed by proposal is an equitable allocation of other exchanges employing similar 14 See ISE’s Schedule of Fees. See also Securities fees and not unfairly discriminatory for pricing schemes. For example, the and [sic] Exchange Act Release No. 61869 (April 7, 2010), 75 FR 19449 (April 14, 2010) (SR–ISE–2010– the reasons stated above. proposed fees assessed to Firms and 25). B. Self-Regulatory Organization’s Broker-Dealers are comparable to rates 15 Specialists, ROTs, SQTs and RSQTs are the Statement on Burden on Competition assessed by the International Securities Exchange’s market maker category. Exchange, Inc. (‘‘ISE’’). Currently, ISE 16 See Exchange Rule 1014 titled ‘‘Obligations and The Exchange does not believe that assesses a fee of $0.10 for Firm Restrictions Applicable to Specialists and the proposed rule change will impose Registered Options Traders.’’ 17 See Securities Exchange Act Release No. 62048 any burden on competition not 12 15 U.S.C. 78f(b). (May 6, 2010) 75 FR 26830 (May 12, 2010) (SR–ISE– necessary or appropriate in furtherance 13 15 U.S.C. 78f(b)(4). 2010–43). of the purposes of the Act.

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C. Self-Regulatory Organization’s those that may be withheld from the change is available at the Exchange, the Statement on Comments on the public in accordance with the Commission’s Public Reference Room, Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be and http://www.nyse.com. Members, Participants or Others available for Web site viewing and II. Self-Regulatory Organization’s printing in the Commission’s Public No written comments were either Statement of the Purpose of, and solicited or received. Reference Room, 100 F Street, NE., Washington, DC 20549, on official Statutory Basis for, the Proposed Rule III. Date of Effectiveness of the business days between the hours of Change Proposed Rule Change and Timing for 10 a.m. and 3 p.m. Copies of such filing In its filing with the Commission, the Commission Action also will be available for inspection and self-regulatory organization included The foregoing rule change has become copying at the principal office of the statements concerning the purpose of, effective pursuant to Section Exchange. All comments received will and basis for, the proposed rule change 19(b)(3)(A)(ii) of the Act 18 and be posted without change; the and discussed any comments it received paragraph (f)(2) of Rule 19b–4 19 Commission does not edit personal on the proposed rule change. The text thereunder. At any time within 60 days identifying information from of those statements may be examined at of the filing of the proposed rule change, submissions. You should submit only the places specified in Item IV below. the Commission may summarily information that you wish to make The Exchange has prepared summaries, abrogate such rule change if it appears publicly available. All submissions set forth in sections A, B, and C below, to the Commission that such action is should refer to File Number SR–Phlx– of the most significant parts of such necessary or appropriate in the public 2010–94 and should be submitted on or statements. before August 5, 2010. interest, for the protection of investors, A. Self-Regulatory Organization’s or otherwise in furtherance of the For the Commission, by the Division of Statement of the Purpose of, and the purposes of the Act. Trading and Markets, pursuant to delegated Statutory Basis for, the Proposed Rule authority.20 IV. Solicitation of Comments Change Florence E. Harmon, Interested persons are invited to Deputy Secretary. 1. Purpose submit written data, views, and [FR Doc. 2010–17193 Filed 7–14–10; 8:45 am] The Exchange proposes to list and arguments concerning the foregoing, BILLING CODE 8010–01–P trade the Shares of the Wilshire Micro- including whether the proposed rule Cap ETF (the ‘‘Fund’’) under NYSE Arca change is consistent with the Act. Equities Rule 5.2(j)(3), the Exchange’s Comments may be submitted by any of SECURITIES AND EXCHANGE listing standards for Investment the following methods: COMMISSION Company Units (‘‘Units’’).4 The Fund is Electronic Comments [Release No. 34–62471; File No. SR– a series of the Claymore Exchange- • Use the Commission’s Internet NYSEArca–2010–64] Traded Fund Trust. comment form (http://www.sec.gov/ The Fund seeks investment results rules/sro.shtml); or Self-Regulatory Organizations; Notice that correspond generally to the • Send an e-mail to rule- of Filing of Proposed Rule Change by performance, before the Fund’s fees and [email protected]. Please include File NYSE Arca, Inc. Relating to Listing of expenses, of the Wilshire US Micro-Cap Number SR–Phlx–2010–94 on the the Wilshire Micro-Cap ETF IndexSM (the ‘‘Wilshire Micro-Cap’’ or subject line. the ‘‘Index’’).5 July 8, 2010. The Exchange is submitting this 1 Paper Comments Pursuant to Section 19(b)(1) of the proposed rule change because the Index Securities Exchange Act of 1934 (the • Send paper comments in triplicate for the Fund does not meet all of the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 to Elizabeth M. Murphy, Secretary, ‘‘generic’’ listing requirements of notice is hereby given that, on July 1, Securities and Exchange Commission, Commentary .01(a)(A) to NYSE Arca 2010, NYSE Arca, Inc. (the ‘‘Exchange’’ Station Place, 100 F Street, NE., Equities Rule 5.2(j)(3) applicable to or ‘‘NYSE Arca’’) filed with the Washington, DC 20549–1090. listing of ICUs based on US indexes. Securities and Exchange Commission The Index meets all such requirements All submissions should refer to File (the ‘‘Commission’’) the proposed rule Number SR–Phlx–2010–94. This file except for those set forth in change as described in Items I, II, and Commentary .01(a)(A)(1) 6 and number should be included on the III below, which Items have been subject line if e-mail is used. To help the prepared by the self-regulatory 4 Commission process and review your An Investment Company Unit is a security that organization. The Commission is represents an interest in a registered investment comments more efficiently, please use publishing this notice to solicit company that holds securities comprising, or only one method. The Commission will comments on the proposed rule change otherwise based on or representing an interest in, an index or portfolio of securities (or holds post all comments on the Commission’s from interested persons. Internet Web site (http://www.sec.gov/ securities in another registered investment company that holds securities comprising, or rules/sro.shtml). Copies of the I. Self-Regulatory Organization’s otherwise based on or representing an interest in, submission, all subsequent Statement of the Terms of Substance of an index or portfolio of securities). See NYSE Arca amendments, all written statements the Proposed Rule Change Equities Rule 5.2(j)(3)(A). with respect to the proposed rule 5 See the Claymore Exchange-Traded Fund The Exchange proposes to list and Trust’s registration statement on Form N–1A, dated change that are filed with the trade shares of the Wilshire Micro-Cap May 18, 2010 (File Nos. 333–134551; 811–21906) Commission, and all written ETF under NYSE Arca Equities Rule (‘‘Registration Statement’’). Statements herein communications relating to the 5.2(j)(3). The text of the proposed rule regarding the Fund, the Shares and the Wilshire US proposed rule change between the Micro-Cap Index are based on the Registration Statement. Commission and any person, other than 20 17 CFR 200.30–3(a)(12). 6 Commentary .01(a)(A)(1) to NYSE Arca Equities 1 15 U.S.C. 78s(b)(1). Rule 5.2(j)(3) provides that component stocks 18 15 U.S.C. 78s(b)(3)(A)(ii). 2 15 U.S.C. 78a. (excluding Units and securities defined in Section 19 17 CFR 240.19b–4(f)(2). 3 17 CFR 240.19b–4. 2 of Rule 8, collectively, ‘‘Derivative Securities

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.01(a)(A)(5).7 Specifically, as of April dissemination of key information such mechanisms of a free and open market 21, 2010, 76.93% of the weight of the as the value of the Index and Intraday and a national market system. The Index components have a market Indicative Value, rules governing the Exchange believes that the proposed capitalization greater than $75 million. trading of equity securities, trading rule change will facilitate the listing and In addition, as of April 21, 2010, the hours, trading halts, surveillance, and trading of an additional type of Index included 201 non-NMS stocks out Information Bulletin to ETP Holders, as exchange-traded product that will of a total of approximately 1,564 set forth in Exchange rules applicable to enhance competition among market components in the Index. Thus, non- Units and prior Commission orders participants, to the benefit of investors NMS stocks comprised approximately approving the generic listing rules and the marketplace. 12.8% of the number of stocks in the applicable to the listing and trading of B. Self-Regulatory Organization’s Index. Stocks comprising 97.3% of the Units.10 Statement on Burden on Competition weight of the Index were NMS stocks.8 The Exchange believes that, According to the Registration notwithstanding the fact that the Index The Exchange does not believe that Statement, the Fund, using a low cost does not meet certain generic listing the proposed rule change will impose ‘‘passive’’ or ‘‘indexing’’ investment criteria in NYSE Arca Equities Rule any burden on competition that is not approach, will seek to replicate, before 5.2(j)(3), Commentary .01, the Index is necessary or appropriate in furtherance the Fund’s fees and expenses, the sufficiently broad-based, and the Index of the purposes of the Act. performance of the Wilshire Micro-Cap. stocks are sufficiently liquid to deter C. Self-Regulatory Organization’s The Wilshire Micro-Cap is a rules-based potential manipulation. As of June 9, Statement on Comments on the index comprised of approximately 1,564 2010, the average market capitalization Proposed Rule Change Received From securities of micro-capitalization of Index stocks was $82.52 million, Members, Participants, or Others companies as of March 31, 2010, as 62.82% of the Index weight was defined by Wilshire Associates comprised of stocks with a global No written comments were solicited Incorporated (‘‘Wilshire’’ or the ‘‘Index monthly trading volume of greater than or received with respect to the proposed Provider’’). The Wilshire Micro-Cap is one million shares, and 77.82% of the rule change. designed to represent micro-sized Index weight was comprised of stocks III. Date of Effectiveness of the companies and is a subset of the with a global monthly trading volume of SM Proposed Rule Change and Timing for Wilshire 5000 Total Market Index greater than 500,000 shares. The average Commission Action (the ‘‘Wilshire 5000’’). The Wilshire global monthly trading volume for Index Micro-Cap represents a float-adjusted, stocks for the period December 2009 Within 35 days of the date of market capitalization-weighted index of through May 2010 ranged from 3.7 publication of this notice in the Federal the issues ranked below 2500 by market million to 9.7 million shares. In Register or within such longer period (i) capitalization of the Wilshire 5000. addition, as of April 21, 2010, stocks as the Commission may designate up to The Exchange represents that: (1) comprising only 2.7% of the Index 90 days of such date if it finds such Except for Commentary .01(a)(A)(1) and weight were non-NMS stocks. longer period to be appropriate and .01(a)(A)(5) to NYSE Arca Equities Rule Detailed descriptions of the Fund, the publishes its reasons for so finding or 5.2(j)(3), the Shares of the Fund Index, procedures for creating and (ii) as to which the self-regulatory currently satisfy all of the generic listing redeeming Shares, transaction fees and organization consents, the Commission standards under NYSE Arca Equities expenses, dividends, distributions, will: Rule 5.2(j)(3); (2) the continued listing taxes, risks, and reports to be distributed (A) By order approve the proposed standards under NYSE Arca Equities to beneficial owners of the Shares can rule change, or Rules 5.2(j)(3) and 5.5(g)(2) applicable to be found in the Registration Statement (B) Institute proceedings to determine Units shall apply to the Shares; and (3) or on the Web site for the Fund whether the proposed rule change the Trust is required to comply with (http://www.claymore.com), as should be disapproved. 9 Rule 10A–3 under the Act for the applicable. IV. Solicitation of Comments initial and continued listing of the Shares. In addition, the Exchange 2. Statutory Basis Interested persons are invited to represents that the Shares will comply The proposed rule change is submit written data, views, and with all other requirements applicable consistent with Section 6(b) 11 of the arguments concerning the foregoing, to Units including, but not limited to, Act, in general, and furthers the including whether the proposed rule requirements relating to the objectives of Section 6(b)(5),12 in change is consistent with the Act. particular, in that it is designed to Comments may be submitted by any of Products’’) that in the aggregate account for at least prevent fraudulent and manipulative the following methods: 90% of the weight of the index or portfolio (excluding such Derivative Securities Products) acts and practices, to promote just and Electronic Comments each shall have a minimum market value of at least equitable principles of trade, to foster • Use the Commission’s Internet $75 million. cooperation and coordination with comment form (http://www.sec.gov/ 7 Commentary .01(a)(A)(5) to NYSE Arca Equities persons engaged in facilitating rules/sro.shtml); or Rule 5.2(j)(3) provides that all securities in the transactions in securities, and to remove index or portfolio shall be US Component Stocks • Send an e-mail to rule- listed on a national securities exchange and shall impediments to and perfect the [email protected]. Please include File be NMS Stocks as defined in Rule 600 of Regulation Number SR–NYSEArca–2010–64 on the NMS under the Securities Exchange Act of 1934 (17 10 See, e.g., Securities Exchange Act Release No. U.S.C. 78a) (‘‘Act’’). NYSE Arca Equities Rule 44551 (July 12, 2001), 66 FR 37716 (July 19, 2001) subject line. 5.2(j)(3) defines the term ‘‘US Component Stock’’ as (SR–PCX–2001–14) (order approving generic listing an equity security that is registered under Sections standards for Units and Portfolio Depositary Paper Comments 12(b) or 12(g) of the Act or an American Depositary Receipts); Securities Exchange Act Release No. • Send paper comments in triplicate Receipt, the underlying equity security of which is 41983 (October 6, 1999), 64 FR 56008 (October 15, registered under Sections 12(b) or 12(g) of the Act. 1999) (SR–PCX–98–29) (order approving rules for to Elizabeth M. Murphy, Secretary, 8 Non-NMS stocks are traded either on the OTC listing and trading of Units). Securities and Exchange Commission, Bulletin Board or the Pink OTC Markets. 11 15 U.S.C. 78f(b). 100 F Street, NE., Washington, DC 9 17 CFR 240.10A–3. 12 15 U.S.C. 78f(b)(5). 20549–1090.

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All submissions should refer to File pursuant to Section 19(b)(1) of the pursuant to FINRA Rule 8312(c), Number SR–NYSEArca–2010–64. This Securities Exchange Act of 1934 BrokerCheck allows the public to obtain file number should be included on the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a certain limited information regarding subject line if e-mail is used. To help the proposed rule change to amend FINRA formerly associated persons, regardless Commission process and review your Rule 8312 (FINRA BrokerCheck of the time elapsed since they were comments more efficiently, please use Disclosure) to (i) expand the associated with a member, if they were only one method. The Commission will information released through the subject of any final regulatory post all comments on the Commission’s BrokerCheck, both in terms of scope and action.8 Internet Web site (http://www.sec.gov/ time; and (ii) establish a formal process In connection with its most recent rules/sro.shtml). Copies of the to dispute the accuracy of, or update, change to BrokerCheck,9 FINRA stated submission, all subsequent information disclosed through that it would consider whether to amendments, all written statements BrokerCheck. The proposal was provide greater disclosure of with respect to the proposed rule published for comment in the Federal information through BrokerCheck.10 change that are filed with the Register on April 22, 2010.3 The Based on its continued evaluation of the Commission, and all written Commission received fourteen BrokerCheck program, FINRA proposes communications relating to the comments on the proposal.4 FINRA to (i) expand the BrokerCheck proposed rule change between the responded to the comments on June 21, disclosure period for formerly Commission and any person, other than 2010.5 This order approves the associated persons of a member from those that may be withheld from the proposed rule change. two years to ten years and (ii) eliminate public in accordance with the the conditions that must be met before II. Description of the Proposal provisions of 5 U.S.C. 552, will be Historic Complaints will be displayed in available for Web site viewing and A. Expansion of Information Released BrokerCheck (i.e. the three strikes printing in the Commission’s Public through BrokerCheck provision) and, thereby, make publicly Reference Room, 100 F Street, NE., Pursuant to FINRA Rule 8312(b), available in BrokerCheck all Historic Washington, DC 20549, on official BrokerCheck is an online application Complaints that were archived after the business days between the hours of 10 through which the public may obtain implementation of Central Registration a.m. and 3 p.m. Copies of such filing Depository (‘‘CRD®’’ or ‘‘Web CRD’’) on information regarding current and 11 also will be available for inspection and former members, associated persons and August 16, 1999. Additionally, FINRA proposes to copying at the principal office of the persons who were associated with a make publicly available on a permanent Exchange. All comments received will member within the preceding two years. basis information regarding formerly be posted without change; the Historic Complaints 6 regarding such associated persons, regardless of the Commission does not edit personal persons are disclosed pursuant to Rule time elapsed since they were associated identifying information from 8312(b) only if: (i) A matter became a submissions. You should submit only Historic Complaint on or after March 19, with a member, if they were convicted information that you wish to make of or pled guilty or nolo contendere to 2007; (ii) the most recent Historic 12 available publicly. All submissions Complaint or currently reported a crime; were the subject of a civil should refer to File Number SR– customer complaint, arbitration or injunction in connection with NYSEArca–2010–64 and should be litigation is less than ten years old; and investment-related activity or a civil submitted on or before August 5, 2010. (iii) the person has a total of three or court finding of involvement in a For the Commission, by the Division of more currently disclosable regulatory violation of any investment-related 13 Trading and Markets, pursuant to delegated actions, currently reported customer statute or regulation; or were named authority.13 complaints, arbitrations or litigations, or as a respondent or defendant in an Florence E. Harmon, Historic Complaints (subject to the investment-related, consumer-initiated Deputy Secretary. limitation that they became Historic 8 A ‘‘final regulatory action’’ includes any final [FR Doc. 2010–17192 Filed 7–14–10; 8:45 am] Complaints on or after March 19, 2007), action of the Commission, Commodity Futures BILLING CODE 8010–01–P or any combination thereof (the ‘‘three Trading Commission, a Federal banking agency, the strikes provision’’).7 In addition, National Credit Union Administration, another Federal regulatory agency, a State regulatory SECURITIES AND EXCHANGE 1 15 U.S.C. 78s(b)(1). agency, a foreign financial regulatory authority, or a self-regulatory organization, including actions that COMMISSION 2 17 CFR 240.19b–4. 3 have been appealed. See Questions 14C, 14D, and See Securities Exchange Act Release No. 61927 14E on Form U4, as well as Question 7D of Form [Release No. 34–62476; File No. SR–FINRA– (April 16, 2010), 75 FR 21064 (April 22, 2010) (SR– U5. See also Section 3(a)(39) of the Act. 2010–012] FINRA–2010–012) (‘‘Notice’’). 9 See Securities Exchange Act Release No. 61002 4 See Exhibit A for a list of comment letters. (November 13, 2009), 74 FR 61193 (November 23, 5 Self-Regulatory Organizations; See letter to Elizabeth M. Murphy, Secretary, 2009) (SR–FINRA–2009–050). Commission, from Richard E. Pullano, Associate Financial Industry Regulatory 10 See letter to Elizabeth M. Murphy, Secretary, Vice President and Chief Counsel, FINRA, dated Authority, Inc.; Order Approving a June 21, 2010 (‘‘Response Letter’’). Commission, from Richard E. Pullano, Associate Vice President and Chief Counsel, Registration and Proposed Rule Change To Amend 6 Historic Complaints are customer complaints Disclosure, FINRA, dated October 15, 2009, in FINRA Rule 8312 (FINRA BrokerCheck that were reported on a uniform registration form response to comments received regarding Securities Disclosure) that are more than two years old and that have not been settled or adjudicated and customer Exchange Act Release No. 60462 (August 7, 2009), 74 FR 41470 (August 17, 2009) (SR–FINRA–2009– July 8, 2010. complaints, arbitrations, or litigations that have been settled for an amount less than the specified 050); see also discussion of comments in Securities I. Introduction dollar amount (identified on the customer Exchange Act Release No. 61002 (November 13, complaint question) and are therefore no longer 2009), 74 FR 61193 (November 23, 2009) (SR– On March 30, 2010, the Financial reportable on a uniform registration form. See FINRA–2009–050). Industry Regulatory Authority, Inc. FINRA Rule 8312(b)(7). 11 See proposed FINRA Rule 8312(b). (‘‘FINRA’’) filed with the Securities and 7 Id. In addition, if a person meets the three 12 See Questions 14A(1)(a) and 14B(1)(a) on Form U4, as well as Questions 7C(1) and 7C(3) on Form ‘‘ ’’ criteria established for disclosing Historic Exchange Commission ( Commission ), Complaints, only those Historic Complaints that U5. became Historic Complaints after March 19, 2007 13 See Questions 14H(1)(a) and 14H(1)(b) on Form 13 17 CFR 200.30–3(a)(12). will be displayed through BrokerCheck. U4.

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arbitration or civil law suit which BrokerCheck, an ‘‘eligible party’’ 17 must make a determination, FINRA will, alleged that they were involved in a submit a written notice to FINRA, under most circumstances, contact the sales practice violation and which including all available supporting entity that reported the information to resulted in an arbitration award or civil documentation.18 After receiving the the CRD and request that this reporting judgment against the person,14 in each written notice, FINRA will determine entity confirm the accuracy of the case as reported to Web CRD on a whether the dispute is eligible for information. If the reporting entity uniform registration form.15 For such investigation. Proposed Supplementary acknowledges that the information is formerly associated persons, FINRA Material .02 to Rule 8312 provides not accurate, FINRA will update, proposes to disclose through examples of situations that are not modify or remove the information, as BrokerCheck: (i) Information concerning eligible for investigation, which include, appropriate, based on the information any such disclosure event(s); (ii) certain but are not limited to, disputes that (i) provided by the reporting entity. If the administrative information, such as involve information previously disputed reporting entity verifies the accuracy of employment and registration history as under the dispute resolution process the information, or the reporting entity reported on a registration form; (iii) the and that does not contain any new or no longer exists or is unable to verify most recently submitted comment, if additional evidence; (ii) are brought by the accuracy of the information, FINRA any, provided by the person, if the an individual or entity that is not an would not change the information.22 comment is relevant and in accordance eligible party; (iii) do not challenge the Upon making its determination, with the procedures established by accuracy of information contained in a FINRA will notify the eligible party in FINRA; and (iv) dates and names of BrokerCheck report but seek to explain writing that the investigation resulted in qualification examinations passed by information; and (iv) involve a determination that (i) the information the formerly associated person, if information contained in the CRD that is inaccurate or not accurately presented available.16 Disclosure pursuant to the is not disclosed through BrokerCheck. and has been updated, modified or proposed rule change would not include FINRA will presume that a dispute deleted; (ii) the information is accurate other information in CRD, such as involving factual information is eligible in content and presentation and no customer complaints, historic for investigation unless the facts and changes have been made; or (iii) the complaints, terminations, bankruptcies circumstances suggest otherwise.19 accuracy of the information or its and liens. In addition, the expanded Under the proposed rule, if FINRA presentation could not be verified and disclosure under the proposed rule determines that a dispute is eligible for no changes have been made. A would not apply to formerly associated investigation, FINRA will add a general determination by FINRA regarding a persons who exercised control over an notation to the eligible party’s dispute, including whether to leave organization that was convicted of or BrokerCheck report stating that the unchanged or to update, modify or pled guilty or nolo contendere to a eligible party has disputed certain delete disputed information, is not 20 crime (Questions 14A(2) and 14B(2) on information included in the report, subject to appeal.23 Form U4) or who had an investment- which notation will be removed when III. Summary of Comments and related civil action brought against them FINRA resolves the dispute. If FINRA FINRA’s Response by a State or foreign financial regulatory determines that a dispute is not eligible for investigation, it will notify the The Commission received fourteen authority, if the action was settled 21 (Question 14H(1)(c) on Form U4). eligible party in writing. comment letters on the proposed rule When a dispute is deemed eligible for change.24 Most comments focus on three B. BrokerCheck Dispute Process investigation, FINRA will evaluate the issues: (i) The proposed expanded FINRA also proposes to adopt written notice and supporting disclosure of Historic Complaints paragraph (e) of Rule 8312 to codify a documentation and, if FINRA through BrokerCheck and the format of determines that it is sufficient to update, process for persons to dispute the such disclosure; (ii) limitations on modify or remove the information that accuracy of, or update, the information information proposed to be disclosed is the subject of the request, FINRA will disclosed through BrokerCheck. FINRA via BrokerCheck; and (iii) the make the appropriate change. When the presently has an informal dispute formalized process to dispute and/or written notice and supporting process. Currently, upon the receipt of update information in BrokerCheck. documentation do not include sufficient an inquiry from a person who believes information upon which FINRA can A. Disclosure of Information in that information about him contained in BrokerCheck BrokerCheck is inaccurate, FINRA staff 17 Only an ‘‘eligible party’’ would be able to will review the alleged inaccuracy; if dispute the accuracy of information disclosed in i. Expanded Disclosure of Historic appropriate, contact the entity that that party’s BrokerCheck report. An ‘‘eligible party’’ Complaints includes any current member; any former member, reported the information; and make a Eight comment letters generally determination as to whether the provided that the dispute is submitted by a natural person who served as the former member’s Chief support expanded disclosure through information is accurate or should be Executive Officer, Chief Financial Officer, Chief BrokerCheck, including the proposal to modified or removed from BrokerCheck. Operating Officer, Chief Legal Officer or Chief expand disclosure of Historic Under proposed Rule 8312(e), in Compliance Officer, or an individual with similar status or function, as identified on Schedule A of Complaints.25 Three comment letters order to initiate a dispute regarding the Form BD at the time the former member ceased generally oppose any expanded accuracy of information contained in being registered with FINRA; or any associated disclosure of Historic Complaints.26 person of a member or person formerly associated 14 See Question 14I(1)(b) on Form U4 and with a member for whom a BrokerCheck report is Question 7E(1)(b) on Form U5. available. See proposed FINRA Rule 8312(e)(1)(A). 22 See proposed FINRA Rule 8312(e)(3)(A). 15 See proposed FINRA Rule 8312(c). The 18 See proposed FINRA Rule 8312(e)(1)(B). 23 See proposed FINRA Rule 8312(e)(3)(B) and proposal will apply only to those individuals 19 See proposed FINRA Rule 8312(e)(2)(A). (C). registered with FINRA on or after August 16, 1999, 20 In circumstances where a dispute involves a 24 See supra, note 4. which is the date that Web CRD was implemented. court order to expunge information from 25 See comment letters from Caruso, Cornell, 16 Id. The information would mirror the BrokerCheck, FINRA will prevent the disputed NASAA, PIABA, SIFMA, St. John’s, Syracuse and information currently disclosed permanently with information from being displayed via BrokerCheck Welker. respect to any formerly registered person who is the while FINRA evaluates the matter. 26 See comment letters from Cutter, MWA and subject of a final regulatory action. 21 See proposed FINRA Rule 8312(e)(2)(C). Oster.

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Three additional commenters take issue therefore, that the expanded disclosure regarding currently and formerly with the scope, time period and/or will confuse investors and believes registered individuals should be made method of disclosure of Historic investors and other users of available permanently; 44 one Complaints as set forth in the proposed BrokerCheck are, and in the future will commenter argues against any rule change.27 Four commenters believe be even better able to, put such expansion whatsoever.45 Those that disclosure of all Historic complaints in the appropriate context.37 commenters in favor of expanding Complaints will only serve to confuse FINRA disagrees with the suggestion disclosure to include all information investors.28 One commenter suggests that archived Historic Complaints available in BrokerCheck believe that that customer complaints that are found should not be made available via information should not be removed to be without merit and closed without BrokerCheck, and that Historic from BrokerCheck for formerly compensation to the investor should be Complaints should only be reported associated persons after the ten-year subject to the current two-year under the ten-year disclosure period on disclosure period.46 Four commenters disclosure period.29 One comment letter a going-forward basis. FINRA states that argue that there is no compelling reason argues that previously archived Historic this would result in far fewer Historic (including the justification espoused by Complaints should not be made Complaints being disclosed than would FINRA 47) to distinguish between available via BrokerCheck, and that be under the proposal and would currently and formerly registered Historic Complaints should only be actually reduce the number of Historic persons with respect to the disclosure Complaints currently disclosed under time period in BrokerCheck.48 Two reported under the ten-year disclosure 38 period on a going forward basis.30 Two FINRA Rule 8312. commenters believe that if FINRA will With respect to timeframe, FINRA commenters recommend that not eliminate the disclosure continues to believe that it should BrokerCheck only display Historic discrepancies between currently and disclose all Historic Complaints that formerly associated persons, at a Complaints on or after March 18, 2002, became non-reportable after the reporting date that the Investment minimum the information disclosed implementation of Web CRD on August permanently should be expanded to Adviser Public Disclosure-Individual 16, 1999. FINRA believes it is not include additional categories.49 Three (‘‘IAPD–I’’) database will use, as opposed necessary or desirable to harmonize the commenters believe that the information to August 16, 1999, the date that Web disclosure date for Historic Complaints on BrokerCheck should be expanded to CRD was implemented.31 with the March 18, 2002 date used for include all information made available FINRA believes that implementing the complaint disclosure in the IAPD–I through State securities regulators as proposed rule change to expand database, as suggested by some well as in CRD.50 disclosure to include Historic commenters.39 FINRA notes that the two In response, FINRA notes that the Complaints will allow investors and systems are separate, each system would events proposed to be permanently other users of BrokerCheck to view note its respective time frame, and using disclosed in BrokerCheck pursuant to information they may consider the 1999 date will provide more the proposed rule change constitute important and relevant.32 In response to information to investors than the 2002 final dispositions which, in most commenters who raise the above date.40 circumstances, have been determined by objections, FINRA notes that under the Commenters also propose changes to an impartial fact finder after the subject proposed rule change, Historic the way Historic Complaints are person has been given the opportunity Complaints will be displayed for ten displayed on BrokerCheck and argue to refute the allegations.51 Finally, years following the termination of an that additional disclosure in FINRA points out that much of the individual’s registration, rather than on BrokerCheck is necessary to clarify that information proposed to be disclosed a permanent basis,33 as other the complaints are based on allegations pursuant to the proposed rule change is commenters suggest.34 FINRA also notes and have not been finally resolved.41 already publicly available through other that Historic Complaints displayed on FINRA notes that similar disclosure sources.52 BrokerCheck will include information already exists on each BrokerCheck regarding the Historic Complaint’s report.42 FINRA agrees, however, that 44 See comment letters from Caruso, Cornell, disposition and the individual’s customer complaint information should NASAA, PIABA, St. John’s and Syracuse. 45 See comment letter from MWA. 35 be clearly identifiable and states that it comments on the matter, if any. 46 Id. Additionally, FINRA states that it is in is in the process of revising the 47 FINRA stated that each of the disclosure events the process of modifying the CRD customer dispute disclosure section of proposed to be permanently included in system to allow firms to more easily BrokerCheck to provide further clarity, BrokerCheck constitutes a final disposition. See including adding a new heading to the Notice at 8. update or otherwise provide context to 48 36 See comment letters from Caruso, PIABA, St. Historic Complaints. FINRA disagrees, report to identify customer disputes that John’s and Syracuse. a firm reports as closed with no action, 49 See comment letter from NASAA, arguing that 27 See comment letters from FSI, Janney and withdrawn, dismissed or denied.43 BrokerCheck should include on a permanent basis NAIBD. information on felony charges, misdemeanor 28 See comment letters from Cutter, MWA, NAIBD ii. Expanded Disclosure, Generally charges involving an investment-related business, and Oster. The comment letter from Oster argues Six commenters argue that all of the fraud, wrongful taking of property, bribery, perjury, that disclosing only those Historic Complaints forgery and other crimes of property, employment made on or after August 16, 1999 will result in information contained in BrokerCheck terminations relating to allegations of violations of investors receiving biased data and drawing investment-related statutes or fraud, bankruptcy inappropriate conclusions therefrom. to Historic Complaints, alter the essence of the and unsatisfied judgments or liens. See also 29 See comment letter from Oster. complaint. comment letter from Syracuse, arguing that disclosure should be expanded to permanently 30 See comment letter from FSI. 37 See Response Letter at 6. include bankruptcy filings and misdemeanor 31 38 See comment letters from FSI and NAIBD. See Response Letter at 5. charges relating to fraud and other crimes bearing 32 See Response Letter at 6. 39 See comment letters from FSI and NAIBD. on a broker’s veracity in financial and business 33 Id. 40 See Response Letter at 4–5. matters. 34 See comment letters from Cutter and NAIBD. 41 See comment letters from Cutter, FSI, Janney, 50 See comment letters from PIABA, St. John’s 35 See Response Letter at 6. MWA, NAIBD and SIFMA. and Syracuse. 36 The Commission urges FINRA to ensure that 42 See Response Letter at 3. 51 See Response Letter at 9. See also Notice at 8. firms do not, under the guise of providing context 43 Id. 52 Id.

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C. Formalized Process To Dispute and/ apply to the dispute process,59 FINRA other positions of trust with potential or Update Information in BrokerCheck notes that submissions by firms and investors. Disclosure of such person’s All comment letters generally individuals in connection with the record while he was in the securities supported FINRA’s proposed dispute process will be subject to industry via BrokerCheck should help 60 codification of the process for disputing FINRA rules. members of the public decide whether to rely on his advice or expertise or do and updating information displayed on IV. Discussion and Commission business with him. Currently, Web CRD BrokerCheck. Two comment letters Findings request that a timeline for submission would indicate that no information is After carefully reviewing the and FINRA response be added to the available for a formerly associated proposed rule change, the comment rule, and these commenters also request person, which could lead a person letters, and the Response Letter, the that FINRA allow firms or associated making an inquiry about a formerly Commission finds that the proposed persons to supplement descriptions of associated person to conclude that the rule change is consistent with the the incidents being reported.53 Another formerly associated person had a clean requirements of the Act and the rules commenter suggests that FINRA record. Expanding the disclosure period and regulations thereunder applicable to establish a standing national for formerly registered individuals to a national securities association.61 In BrokerCheck Record Review Committee ten years, as well as expanding certain particular, the Commission finds that (or delegate responsibility to FINRA’s information made available through the proposed rule change is consistent National Adjudicatory Council) to BrokerCheck on a permanent basis, will with Section 15A(b)(6) of the Act,62 investigate BrokerCheck inquiries and provide investors and other users of which requires, among other things, that make determinations with respect to BrokerCheck information that should be FINRA’s rules be designed to prevent eligibility and removal or modification useful and relevant regarding such fraudulent and manipulative acts and of information on BrokerCheck.54 formerly registered individuals’ history. FINRA represents that it will work practices, to promote just and equitable In addition, if registered persons are diligently to process disputes as principles of trade, to remove aware that their CRD information will expeditiously as possible, and believes impediments to and perfect the be available for a longer period of time, that it will be able to make mechanism of a free and open market it should provide an additional and a national market system, and, in determinations regarding disputes incentive to act consistent with industry general, to protect investors and the within a reasonable time frame.55 best practices. public interest. The Commission also believes that the FINRA does not believe that mandating Specifically, the Commission believes time limitations for submitting and aspect of FINRA’s proposal that expands that expanding the information the information available through responding to disputes or establishing a available through BrokerCheck about (i) committee to make determinations BrokerCheck regarding Historic 56 persons who were previously associated Complaints will further help members regarding disputes is necessary. with a member within the last two to FINRA states that most disputes of the public to evaluate an individual’s ten years and (ii) formerly associated record. The Commission believes that it regarding the accuracy of information in persons who were convicted of or pled BrokerCheck are straightforward and is consistent with the Act for FINRA to guilty or nolo contendere to a crime, conclude that customer complaints unambiguous and requiring a committee were the subject of a civil injunction in should be available to investors and to review such disputes would increase connection with investment-related members of the public who wish to the processing time.57 Finally, FINRA activity or a civil court finding of educate themselves with respect to the believes it would be redundant to involvement in a violation of any professional history of a current or expand the dispute process to allow investment-related statute or regulation, formerly associated person. Persons may individuals to supplement descriptions or were named as a respondent or take Historic Complaints filed against an on BrokerCheck, as the opportunity to defendant in an investment-related, individual in the securities industry provide context to a disclosed matter on consumer-initiated arbitration or civil into account in considering whether to BrokerCheck is already available to law suit which alleged that they were 58 do business with a current or former individuals. involved in a sales practice violation associated person. The Commission In response to a request for and which resulted in an arbitration agrees with FINRA and believes that clarification regarding whether FINRA award or civil judgment against the potential investors and members of the rules prohibiting false filings would person, will help members of the public public who research a person with to protect themselves from whom they are considering doing 53 See comment letters from FSI and NAIBD. The unscrupulous people. The Commission FSI letter suggests requiring FINRA to make an business are capable of evaluating eligibility determination within 30 days of receipt believes that such information is Historic Complaints in the appropriate of notice, while the NAIBD letter suggests requiring relevant to investors and members of the context. FINRA to make a determination regarding update or public who wish to educate themselves Finally, the Commission believes that removal of the disputed information within 30 days with respect to the professional history of the submission of supporting evidence. creating a formalized process for 54 See comment letter from SIFMA. of a formerly associated person. disputing and/or updating the 55 See Response Letter at 7. FINRA notes, Formerly associated persons, although information displayed through however, that in certain circumstances the no longer in the securities industry in a BrokerCheck is appropriate. The written evaluation of a dispute will be outside of its control. registered capacity, may work in other guidelines proposed provide 56 Id. investment-related industries, such as administrative transparency and should 57 Id. financial planning, or may seek to attain help persons better understand the 58 See Response Letter at 8. FINRA points out that individuals can provide context to a matter procedure for disputing or updating 59 disclosed on BrokerCheck through the submission See comment letter from NASAA. information in BrokerCheck, ultimately of Forms U4 and U5. In a separate section of the 60 See Response Letter at 7–8. allowing for greater efficiency keeping 61 Response Letter, FINRA also notes that firms and In approving this proposed rule change, the information in BrokerCheck accurate. individuals may add or revise comments to, or Commission has considered the proposed rule update information regarding, Historic Complaints change’s impact on efficiency, competition, and The Commission recognizes that the disclosed on BrokerCheck. See Response Letter at capital formation. See 15 U.S.C. 78c(f). commenters make arguments with 4. 62 15 U.S.C. 78o–3(b)(6). respect to the usefulness of the

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additional information they seek to have For the Commission, by the Division of 12. John M. Ivan, Senior Vice President, disclosed regarding registered and Trading and Markets, pursuant to delegated General Counsel, Janney 68 formerly registered persons.63 The authority. Montgomery Scott, LLC, dated May Commission recognizes that the public’s Florence E. Harmon, 14, 2010 (‘‘Janney’’). ability to access information, whether to Deputy Secretary. 13. Dale E. Brown, President and CEO, inquire about a registered person or a Exhibit A F.inancial Services Institute, dated formerly associated person, may serve to May 19, 2010 (‘‘FSI’’). protect investors, the integrity of the List of Comment Letters Received for 14. Steven B. Caruso, Maddox Hargett marketplace, and the public interest. SR–FINRA–2010–012 Caruso, P.C., dated May 25, 2010 The Commission urges FINRA to 1. Andrew Oster, President and CEO, (‘‘Caruso’’). consider expanding the information as Oster Financial Group, LLC, dated [FR Doc. 2010–17190 Filed 7–14–10; 8:45 am] suggested by the commenters. This May 4, 2010 (‘‘Oster’’). BILLING CODE 8010–01–P information is available from the 2. Pamela Fritz, CSCP, AIRC, FFSI, FIC, individual States; however, it would be Chief Compliance Officer, MWA SECURITIES AND EXCHANGE more accessible through BrokerCheck. Financial Services, Inc., dated May COMMISSION The Commission urges the public to 6, 2010 (‘‘MWA’’). utilize all sources of information, 3. Lisa Roth, National Association of [Release No. 34–62468; File No. SR– particularly the databases of the State Independent Brokers-Dealers, Inc. NASDAQ–2010–074] regulators, as well as legal search Member Advocacy Committee Chair, and CEO and COO, Keystone Self-Regulatory Organizations; The engines and records searches, in Capital Corporation, dated May 6, NASDAQ Stock Market LLC; Notice of conducting a thorough search of any 2010 (‘‘NAIBD’’). Filing of a Proposed Rule Change, as associated person’s activities. 4. Melanie Senter Lubin, Maryland Modified by Amendment No. 1, To The Commission notes that FINRA Securities Commissioner and Chair, Adopt Rule 4753(c) as a Six Month stated it would continue to evaluate all North American Securities Pilot in 100 NASDAQ-Listed Securities aspects of the BrokerCheck program to Administrators Association, Inc. determine whether future circumstances CRD/IARD Steering Committee, July 7, 2010. should lead to greater disclosure dated May 11, 2010 (‘‘NASAA’’). Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 through BrokerCheck.64 FINRA has a 5. Scott R. Shewan, President, Public (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 statutory obligation to make information Investors Arbitration Bar notice is hereby given that on June 18, available to the public 65 and, as stated Association, dated May 11, 2010 (‘‘PIABA’’). 2010, The NASDAQ Stock Market LLC in the past, the Commission believes (‘‘Nasdaq’’ or the ‘‘Exchange’’) filed with that FINRA should continuously strive 6. Kelly R. Welker, Branch Manager, LPL Financial, dated May 12, 2010 the Securities and Exchange to improve BrokerCheck because it is a Commission (‘‘Commission’’) the valuable tool for the public in deciding (‘‘LPL’’). 7. Deborah Castiglioni, CEO and CCO, proposed rule change as described in whether to work with an industry Items I, II, and III below, which Items member.66 The changes proposed in this Cutter Company, Inc., dated May ‘‘ ’’ have been prepared by Nasdaq. On June filing will enhance BrokerCheck by 12, 2010 ( Cutter ). 8. Lisa A. Catalano, Director, Associate 25, 2010, Nasdaq filed Amendment No. including more information that should Professor of Clinical Legal 1 to the proposed rule change. The prove useful to the general public and Education and Christine Lazaro, Commission is publishing this notice to by maintaining the accuracy of such Supervising Attorney, Securities solicit comments on the proposed rule information. In addition, the disclosure Arbitration Clinic, St. John’s change, as amended, from interested of this additional information may serve University School of Law, dated persons. as a deterrent to questionable and May 13, 2010 (‘‘St. John’s’’). I. Self-Regulatory Organization’s fraudulent activity. 9. William A. Jacobson, Esq., Associate Statement of the Terms of Substance of For the reasons discussed above, the Clinical Professor of Law, Cornell the Proposed Rule Change Law School, and Director, Cornell Commission finds that the rule change NASDAQ is proposing to adopt Rule Securities Law Clinic and Adisada is consistent with the Act. 4753(c) as an initial six month pilot in Dudic, Cornell Law School, 2011, 100 NASDAQ-listed securities. V. Conclusion dated May 13, 2010 (‘‘Cornell’’). The text of the proposed rule change 10. E. John Moloney, President and It is therefore ordered, pursuant to is below. Proposed new language is in CEO, Moloney Securities Company, Section 19(b)(2) of the Act,67 that the italics; proposed deletions are in Inc. and Chairman, Securities proposed rule change (SR–FINRA– brackets.3 Industry and Financial Markets 2010–012), be, and hereby is, approved. Association Small Firms * * * * * Committee, dated May 13, 2010 4753. Nasdaq Halt and Imbalance (‘‘SIFMA’’). Crosses 11. Joelle B. Franc, Student Attorney; Jonathan P. Terracciano, Student (a)–(b) No change. 63 See page 4, which notes information in CRD (c) Beginning August 1, 2010, for a that will not be made available as a result of this Attorney; and Birgitta K. Siegel, Esq., Visiting Asst. Professor; period of six months, [B]between 9:30 rule change. a.m. and 4 p.m. EST, the System will 64 See Response Letter at 9. Securities Arbitration & Consumer 65 Law Clinic, Syracuse University See Section 15A(i) of the Act. 1 15 U.S.C. 78s(b)(1). 66 See, e.g., Securities Exchange Act Release No. College of Law, dated May 13, 2010 2 17 CFR 240.19b–4. 61002 (November 13, 2009), 74 FR 61193 (‘‘Syracuse’’). 3 Changes are marked to the rule text that appears (November 23, 2009) (SR–FINRA–2009–050). in the electronic manual of NASDAQ found at 67 15 U.S.C. 78s(b)(2). 68 17 CFR 200.30–3(a)(12). http://nasdaq.cchwallstreet.com.

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automatically monitor System A. Self-Regulatory Organization’s NASDAQ’s Approach: Rule 4753(c) executions to determine whether the Statement of the Purpose of, and NASDAQ originally adopted Rule market is trading in an orderly fashion Statutory Basis for, the Proposed Rule 4753(c) to promote the protection of and whether to conduct an Imbalance Change investors by providing a meaningful Cross in order to restore an orderly 1. Purpose pause in NASDAQ Securities on market in a single Nasdaq Security. NASDAQ in the midst of abrupt and (1) An Imbalance Cross shall occur if NASDAQ is proposing to adopt Rule significant price movements, while the System executes a transaction in a 4753(c), a volatility-based pause in permitting trading to move freely in 6 Nasdaq Security at a price that is trading in individual NASDAQ-listed rapid and stable markets. As the events beyond the Threshold Range away from securities traded on NASDAQ of May 6, 2010 show, severe and rapid price dislocation can occur in securities the Triggering Price for that security. (‘‘NASDAQ Securities’’). NASDAQ is with no connection to the fundamental The Triggering Price for each Nasdaq proposing to adopt the rule initially as soundness of the underlying companies. Security shall be the price of any a six-month pilot in 100 NASDAQ Securities beginning August 1, 2010. Such dislocation may be caused by execution by the System in that security operational and structural factors within the prior 30 seconds. The Background beyond the control of issuers and Threshold Range shall be determined as individual markets. NASDAQ’s Rule NASDAQ’s efficient market structure follows: 4753(c) process is designed to protect allows the price of a security to change NASDAQ securities and market quickly in response to information and Thresh[h]old participants from aberrant volatility, range away market demand. Allowing trading to which can quickly spread like a Execution price from triggering react quickly is generally beneficial to price contagion from market to market, to (percent) investors. In some circumstances, allow time to reestablish a rational however, abrupt and significant market in NASDAQ Securities. $1.75 and under ...... 15 movements in the price at which a NASDAQ’s proposed Rule 4753(c) Over $1.75 and up to $25 .... 10 security is traded can indicate aberrant process automatically suspends trading Over $25 and up to $50 ...... 5 volatility, which is harmful to investors. in individual NASDAQ Securities that Over $50 ...... 3 On August 19, 2008, the Commission are the subject of abrupt and significant approved new Rule 4753(c), which intraday price movements between 9:30 (2) If the System determines pursuant established a volatility-based halt a.m. and 4 p.m. Eastern Standard Time. process on a one-year pilot basis for an to subsection (1) above to conduct an The Rule 4753(c) process is triggered initial 100 NASDAQ-listed securities.4 Imbalance Cross in a Nasdaq Security, automatically when the execution price Subsequent to the Commission’s the System shall automatically cease of a NASDAQ Security moves more than approval, NASDAQ implemented a a fixed amount away from a pre- executing trades in that security for a market order price collar to address 60-second Display Only Period. During established ‘‘triggering price’’ for that aberrant volatility in lieu of security. The Triggering Price for each that 60-second Display Only Period, the immediately implementing the Rule NASDAQ Security is the price of any System shall: 5 4753(c) pilot. Although these collars execution by the System 7 in that (A) Maintain all current quotes and are designed to address volatility by security within the previous 30 seconds. orders and continue to accept quotes reducing the risk that market orders will For each NASDAQ Security, the System and orders in that System Security; and execute at prices that are significantly continually compares the price of each (B) Disseminate by electronic means worse than the national best bid and execution in the System against the offer, they had limited effect on May 6, an Order Imbalance Indicator every 5 prices of all System executions in that 2010 because of the limited number of seconds. security over the 30 seconds. market orders involved in trading that Proposed Rule 4753(c) has tiered (3) At the conclusion of the 60-second day on NASDAQ. triggering price range percentages that Display Only Period, the System shall In light of the unprecedented aberrant are based on the execution price of a re-open the market by executing the volatility witnessed on May 6, 2010, and security. NASDAQ has observed that, on Nasdaq Halt Cross as set forth in the limited effect that NASDAQ’s a percentage basis, lower priced stocks subsection (b)(2)–(4) above. market collars had in dampening such normally trade in a wider range than (4) No change. volatility, NASDAQ believes that the stocks with higher prices. For example, during the first quarter of 2010, a period * * * * * Rule 4753(c) halt process is needed to protect its listed securities and market of relatively low market volatility, II. Self-Regulatory Organization’s participants from such volatility in the stocks priced under $1.75 had an Statement of the Purpose of, and future. Accordingly, as described below, average range (percent difference from Statutory Basis for, the Proposed Rule NASDAQ is proposing to adopt Rule high to low over the course of the day) Change 4753(c) again as a six-month pilot for of 9%, stocks priced $1.75 up to $24.99 100 NASDAQ-listed securities. had an average range of 4%. Stocks In its filing with the Commission, priced $25 to $49.99 had an average NASDAQ included statements 4 Securities Exchange Act Release No. 58386 range of 3%. Stocks priced above $50 concerning the purpose of, and basis for, (August 19, 2008), 73 FR 50380 (August 26, 2008) the proposed rule change. The text of (SR–NASDAQ–2007–067). 6 NASDAQ has other similar processes that serve these statements may be examined at 5 This process cancels any portion of most to protect investors during periods of abnormal unpriced orders that would execute either on trading activity. NASDAQ Rule 4120 authorizes the places specified in Item IV below, NASDAQ or when routed to another market center NASDAQ Regulation to halt trading in a security and is set forth in Sections A, B, and C at a price that is the greater of $0.25 or 5 percent based upon news or an emergency in the market. below. worse than the NBBO at the time NASDAQ receives NASDAQ Regulation also has the ability under the order. See Securities Exchange Act Release No. NASDAQ Rule 11890 to break trades in order to 60371 (July 23, 2009), 74 FR 38075 (July 30, 2009) protect the integrity of the market. (SR–NASDAQ–2009–070). 7 As defined in Rule 4751(a).

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had an average range of 2%. The in determining that a pause in trading • 2:00:00 p.m., WXYZ trades at $20 on purpose of Rule 4753(c) is not to inhibit should be initiated, and a shorter time NASDAQ, which is also the trading within the normal range, but during which a security is paused, as consolidated last sale price; rather to pause trading in instances of compared to the cross-market approach. • 2:00:30 p.m., WXYZ trades at $17 on aberrant volatility. As a consequence, Rule 4753(c) is applied throughout the NASDAQ; NASDAQ selected percentage tiers that trading day, whereas the cross-market Æ Because the execution price allow for a wider range in lower priced approach does [sic] not. Last, while the exceeds both the 10 percent tiers of securities, with decreasing ranges on a cross-market approach will help to the cross-market pause process and percentage basis as price increases. prevent aberrant volatility, it applies Rule 4753(c), the cross-market When the Rule 4753(c) process is only to S&P 500 Index securities, thus process is followed triggered, NASDAQ institutes a formal it will not address aberrant volatility in Æ WXYZ is paused on all markets trading halt during which time the majority of NASDAQ-listed The following sequence of events NASDAQ systems are prohibited from securities. Adoption of Rule 4753(c) will illustrates a situation whereby a executing orders.8 Members, however, allow NASDAQ to extend the rule’s NASDAQ-listed security may fall greater may continue to enter quotes and protections to its listed securities than 15 percent, yet does not trigger the orders, which are queued during a 60- trading on NASDAQ, with such cross-market trading pause process: second Display Only Period. At the protections initially applying to the 100 WXYZ is NASDAQ-listed, but not conclusion of the Display Only Period, pilot securities 11 but with the goal of included in the S&P 500 Index. • the queued orders are executed at a applying the rule to all NASDAQ-listed 2:00:00 p.m., WXYZ trades at $1.50 single price, pursuant to Rule 4753. securities. on NASDAQ, which is also the The following examples illustrate consolidated last sale price; Current Environment • how Rule 4753(c) would operate in 2:00:30 p.m., WXYZ trades below In light of the events of May 6, 2010, relation to the new cross-market single $1.275 on NASDAQ; Æ NASDAQ believes that circumstances stock pause. In this sequence of events, Although the security dropped warrant the implementation of Rule the Rule 4753(c) pause is triggered prior more than 10 percent, the cross- 4753(c), in addition to the market collar market trading pause process would 9 to the cross-market trading pause protections currently in place. process: not triggered, since the security is NASDAQ believes that implementing not included in the S&P 500 Index WXYZ is NASDAQ-listed and Æ Rule 4753(c) will serve to protect market included in the S&P 500 Index. WXYZ is paused pursuant to Rule participants from aberrant volatility 4753(c) because the security • 2:00:00 p.m., WXYZ trades at $300 on such as that which occurred on May 6, dropped greater than 15 percent in NASDAQ, which is also the 2010. NASDAQ also believes that Rule the prior 30 seconds consolidated last sale price Æ 4753(c) will serve as a complement to Æ WXYZ continues to trade elsewhere the recently-approved cross-market 2:00:30 p.m., WXYZ trades below The examples above show that, single stock pause to be adopted by the $291 on NASDAQ although Rule 4753(c) operates Æ WXYZ is paused pursuant to Rule U.S. national securities exchanges.10 independently from the cross-market 4753(c) NASDAQ notes that there are several trading pause process, both trade pause Æ WXYZ continues to trade elsewhere differences between the cross-market • 2:01:30 p.m., WXYZ resumes trading processes work efficiently along side of approach and Rule 4753(c). Specifically, on NASDAQ at $295 each other to dampen aberrant Rule 4753(c) uses tiered threshold range • 2:02:00 p.m., WXYZ trades below volatility. percentages that are based on a 286.15 on NASDAQ Other Market’s Approach security’s execution price in Æ WXYZ is again paused pursuant to NASDAQ notes that another market determining the price at which a halt Rule 4753(c) has adopted a similar process whereby would be initiated, whereas the cross Æ WXYZ continues to trade elsewhere market approach does not. Rule 4753(c) • 2:03:00 p.m., WXYZ resumes trading the market’s listed securities each may also has a shorter time threshold used on NASDAQ at $288; be temporarily removed from automatic • 2:03:30 p.m., WXYZ trades below trading when the trading exceeds 8 A halt pursuant to Rule 4753(c) is not 279.36 on NASDAQ; certain average daily volume-, price-, considered a regulatory halt and, therefore, it does Æ and volatility-based criteria.12 Although not trigger a market-wide trading halt under Section WXYZ is again paused pursuant to X of the NASDAQ UTP Plan. As a result, other Rule 4753(c) dissimilar in process due to the differing markets are permitted to continue trading a Æ WXYZ continues to trade elsewhere nature of the markets, the pause under NASDAQ stock that is undergoing a Market Re- • 2:04:00 p.m., WXYZ consolidated last Rule 4753(c) is designed to achieve the Opening on NASDAQ. During the Rule 4753(c) sale price reaches $270 same goal, namely, to apply quantitative process, NASDAQ’s quotations are marked ‘‘closed,’’ Æ signaling to other markets that quotes and orders The cross-market trading pause criteria to pause trading in a listed routed to NASDAQ will not be executed. A Rule process is triggered security during times of aberrant 4753(c) trade is reported to the network processor Æ NASDAQ abandons the Rule volatility so that a more representative as a single-price re-opening that is exempt from 4753(c) and now follows the cross- market may develop. NASDAQ’s trade through restrictions pursuant to Rule 611(b)(3). market trading pause process process differs from the other market’s 9 NASDAQ notes that, while the market collar The following sequence of events process in that it uses completely protections were in place during the events of May illustrates a situation whereby a transparent criteria and timeframes, 6, 2010, only approximately five percent of the NASDAQ-listed security that is also which serve to eliminate uncertainty volume on NASDAQ was attributable to market from the trade pause process. For orders. covered by the cross-market trading 10 Securities Exchange Act Release No. 62252 pause process triggers both processes example and as noted above, the Rule (June 10, 2010), 75 FR 34186 (June 16, 2010) (SR– simultaneously: 4753(c) process is triggered by execution BATS–2010–014; SR–EDGA–2010–01; SR–EDGX– WXYZ is NASDAQ-listed and prices that are clear and available to all 2010–01; SR–BX–2010–037; SR–ISE–2010–48; SR– market participants, and the pause in NYSE–2010–39; SR–NYSEAmex–2010–46; SR– included in the S&P 500 Index. NYSEArca–2010–41; SR–NASDAQ–2010–061; SR– trading has a fixed 60 second Display CHX–2010–10; SR–NSX–2010–05; SR–CBOE–2010– 11 Amendment No. 1 indicates that the pilot 047). securities will be the NASDAQ 100 securities. 12 NYSE Rule 1000(a)(iv).

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Only period process that cannot be practices, promote just and equitable complement the cross-market single extended.13 In addition, the pause will principles of trade, foster cooperation stock pause by serving to better protect be followed by a ‘‘cross’’ that is and coordination with persons engaged all of NASDAQ’s listed securities predictable and well defined. As a in regulating, clearing, settling, covered by the pilot trading on consequence, application of the Rule processing information with respect to, NASDAQ during times of aberrant 4753(c) process is automatic and and facilitating transactions in volatility, such as the volatility precise, allowing no place for securities, remove impediments to and witnessed on May 6, 2010. NASDAQ uncertainty. This will make the perfect the mechanism of a free and notes that Rule 4753(c) in no way transition to this rule predictable and open market and a national market conflicts with the new cross-market understandable. Most importantly, it system, and, in general, protect single stock pause, but rather applies, in will allow NASDAQ to insulate its investors and the public interest. The some cases, more stringent criteria to issuers from volatility injected in the proposed rule change is consistent with pause a broader range of securities on market from exchange halt programs these requirements in that it will reduce NASDAQ only. In addition, should a with subjective criteria. Primary markets the negative impacts of sudden, cross-market single stock pause be with responsibility to listed companies unanticipated volatility in individual initiated in a NASDAQ Security during have an obligation and right to take NASDAQ Securities, and serve to a Rule 4753(c) pause, the security would actions to provide additional levels of restore an orderly market in a be subject to the cross-market single protection from volatility to companies transparent and uniform manner, stock pause process. that list with it [sic]. enhance the price-discovery process, NASDAQ has an obligation to adopt increase overall market confidence, and Summary rules that protect investors and the promote fair and orderly markets and public interest, which include rules that In approving Rule 4753(c), the the protection of investors. protect its listed securities and those Commission stated that systematically NASDAQ notes that the proposed rule that trade in them. Instituting Rule suspending trading in NASDAQ-listed change is identical to the rule change 4753(c) will serve to protect market securities that are the subject of abrupt approved by the Commission when it participants within the scope of and significant intra-day price approved Rule 4753(c) in August 2008, NASDAQ’s authority under the Act. movements promotes fair and orderly except that NASDAQ plans to NASDAQ notes that market participants markets and the protection of implement the pilot on a shorter, six 14 would be able to trade in securities investors. NASDAQ believes that month basis. In approving Rule 4753(c), subject to a Rule 4753(c) pause at other adopting Rule 4753(c) is more the Commission acknowledged that market venues, should they so choose.19 appropriate now than it was at the time Rule 4753(c), which systematically Last, NASDAQ notes that, in the Commission originally approved suspends trading in NASDAQ-listed approving another market’s approach to Rule 4753(c) given the need to protect securities that are the subject of abrupt dealing with abnormal volatility in its investors from aberrant volatility, such and significant intra-day price listed securities, the Commission stated as the volatility witnessed on May 6, movements, promotes fair and orderly that precluding automatic executions 2010. Accordingly, NASDAQ is markets and the protection of under certain circumstances is proposing to adopt Rule 4753(c) in 17 investors. NASDAQ notes that the warranted.20 Like that market’s process, identical form as originally approved by Commission received no comments on the proposed change to NASDAQ Rule the Commission, but as a six month the proposed rule change that adopted 4753(c) will extend the rule’s halt pilot for an initial 100 Nasdaq-listed Rule 4753(c) originally. NASDAQ process to all listed securities traded on securities. During this pilot period, believes that the lack of comment NASDAQ and will likewise serve to NASDAQ will study the impact of the signaled that market participants dampen volatility, thus providing rule on the pilot securities and will considered the proposed new rule to be market participants with time to react to provide the Commission with monthly non-controversial. NASDAQ believes achieve a more natural trading pattern reports detailing its ongoing review of that, given the events of May 6, 2010, of a particular security. the pilot. These reports will inform the adopting Rule 4753(c) as a new pilot NASDAQ will keep the Commission Commission of the number of times will ensure that covered NASDAQ apprised of the use of Rule 4753(c) as Rule 4753(c) is triggered and the Securities, and market participants part of NASDAQ’s ongoing review of the security or securities involved, and will trading therein on NASDAQ, are pilot. In this regard, during the pilot describe any patterns that emerge provided the needed protections of the period NASDAQ will provide the during the pilot period. NASDAQ is also rule. Commission with monthly reports making a technical correction to the NASDAQ notes that the proposed rule detailing the use of Rule 4753(c) and table found in Rule 4753(c)(1). change supplements the cross-market describing any patterns that may single stock pause to be adopted by the 2. Statutory Basis develop. As such, NASDAQ believes national securities exchanges, which that the proposed rule change is NASDAQ believes the proposed rule was approved by the Commission on consistent with the protection of change is consistent with the provisions June 10, 2010.18 NASDAQ applauds the 15 investors and the public interest, and of Section 6 of the Act, in general and Commission’s leadership in bringing the 16 does not raise any novel regulatory with Section 6(b)(5) of the Act, in national securities exchanges together to issues. particular, which requires that the rules achieve a cross-market solution to help of an exchange be designed to prevent address the issues that may have caused B. Self-Regulatory Organization’s fraudulent and manipulative acts and the events of May 6, 2010. NASDAQ is Statement on Burden on Competition continuously assessing actions it can NASDAQ does not believe that the 13 NYSE’s LRP process has an indeterminate take to further strengthen its market. In length, but can last several minutes during which proposed rule change will result in any the NYSE is not transmitting a protected quote in this regard, NASDAQ believes that the affected security. quickly implementing Rule 4753(c) will 19 Supra note 8. 14 Supra note 4 at 50381. 20 Securities Exchange Act Release No. 53539 15 15 U.S.C. 78f. 17 Supra note 4 at 50381. (March 22, 2006), 71 FR 16353, 16377–78 (March 16 15 U.S.C. 78f(b)(5). 18 Supra note 10. 31, 2006) (SR–NYSE–2004–05).

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burden on competition that is not pauses or restrictions that might affect For the Commission, by the Division of necessary or appropriate in furtherance the same stock? To what extent does the Trading and Markets, pursuant to delegated of the purposes of the Act, as amended. answer change based on whether the authority.21 Florence E. Harmon, C. Self-Regulatory Organization’s affected stock is already subject to a Deputy Secretary. Statement on Comments on the market-wide single-stock circuit breaker Proposed Rule Change Received From that applies consistently across all [FR Doc. 2010–17191 Filed 7–14–10; 8:45 am] Members, Participants or Others trading venues? BILLING CODE 8010–01–P Written comments were neither Comments may be submitted by any of the following methods: solicited nor received. SECURITIES AND EXCHANGE III. Date of Effectiveness of the Electronic Comments COMMISSION Proposed Rule Change and Timing for • Use the Commission’s Internet [Release No. 34–62480; File No. SR–FINRA– Commission Action comment form (http://www.sec.gov/ 2010–022] Within 35 days of the date of rules/sro.shtml); or Self-Regulatory Organizations; publication of this notice in the Federal • Send an e-mail to rule- Financial Industry Regulatory Register or within such longer period (i) [email protected]. Please include File Authority, Inc.; Order Approving as the Commission may designate up to Number SR–Nasdaq–2010–074 on the Proposed Rule Change Relating To 90 days of such date if it finds such subject line. Amending the Codes of Arbitration longer period to be appropriate and Procedure To Increase the Number of publishes its reasons for so finding or Paper Comments Arbitrators on Lists Generated by the (ii) as to which the self-regulatory Neutral List Selection System organization consents, the Commission • Send paper comments in triplicate will: to Elizabeth M. Murphy, Secretary, July 9, 2010. Securities and Exchange Commission, (A) By order approve such proposed On April 29, 2010, the Financial Station Place, 100 F Street, NE., rule change, or Industry Regulatory Authority, Inc. (B) Institute proceedings to determine Washington, DC 20549–1090. (‘‘FINRA’’) filed with the Securities and whether the proposed rule change All submissions should refer to File Exchange Commission (‘‘SEC’’ or should be disapproved. Number SR–Nasdaq–2010–074. This file ‘‘Commission’’), pursuant to Section IV. Solicitation of Comments number should be included on the 19(b)(1) of the Securities Exchange Act 1 Interested persons are invited to subject line if e-mail is used. To help the of 1934 (‘‘Exchange Act’’ or ‘‘Act’’) and 2 submit written data, views, and Commission process and review your Rule 19b–4 thereunder, a proposed rule arguments concerning all aspects of the comments more efficiently, please use change. The proposed rule change was foregoing, including whether the only one method. The Commission will published for comment in the Federal 3 proposed rule change is consistent with post all comments on the Commission’s Register on May 26, 2010. The the Act. A stated purpose of the Internet Web site (http://www.sec.gov/ Commission received six comments on 4 proposal is to protect Nasdaq-listed rules/sro.shtml). Copies of the the rule proposal. securities and market participants from submission, all subsequent I. Description of the Proposed Rule ‘‘aberrant’’ volatility, such as that which amendments, all written statements Change occurred on May 6, 2010 and may be with respect to the proposed rule caused by operational or structural change that are filed with the FINRA proposed to amend Rules factors beyond the control of issuers and Commission, and all written 12403 and 12404 of the Code of individual markets. To what extent do communications relating to the Arbitration Procedure for Customer ‘‘ ’’ the price changes that would trigger a proposed rule change between the Disputes ( Customer Code ) and Rules trading halt under the proposal indicate Commission and any person, other than 13403 and 13404 of the Code of the potential existence of ‘‘aberrant’’ those that may be withheld from the Arbitration Procedure for Industry ‘‘ ’’ volatility, as opposed to the normal public in accordance with the Disputes ( Industry Code ) to increase provisions of 5 U.S.C. 552, will be operation of the markets? If these price 1 ‘‘ ’’ available for Web site viewing and 15 U.S.C. 78s(b)(1). changes indicate potentially aberrant 2 17 CFR 240.19b–4. volatility, to what extent will the printing in the Commission’s Public 3 See Securities Exchange Act Rel. No. 62134 proposal address such volatility in a Reference Room, 100 F Street, NE., (May 19, 2010), 75 FR 29594 (May 26, 2010) (File manner appropriate and consistent with Washington, DC 20549, on official No. SR–FINRA–2010–022). the purposes of the Act? Will a trading business days between the hours of 10 4 See Submission via SEC WebForm from A. M. a.m. and 3 p.m. Copies of such filing Miller, dated May 6, 2010 (‘‘Miller comments’’); halt at Nasdaq under the proposal Submission via SEC WebForm from Steven B. restrict liquidity or increase volatility in also will be available for inspection and Caruso, Maddox Hargett Caruso, P.C., dated May 27, the affected stock, since other markets copying at the principal office of 2010 (‘‘Caruso comments’’); Letter to Elizabeth M. can continue to trade the stock and may Nasdaq. All comments received will be Murphy, Secretary, Commission from Patricia posted without change; the Commission Cowart, Chair, Arbitration Committee, Securities not have comparable volatility halts? In Industry and Financial Markets Association, dated what respects are the consequences of does not edit personal identifying May 27, 2010 (‘‘SIFMA letter’’); Submission via SEC this proposal likely to be similar to, or information from submissions. You WebForm from Leonard Steiner, Steiner & Libo, different from, the effects of other should submit only information that P.C., dated May 27, 2010 (‘‘Steiner comments’’); you wish to make publicly available. All Letter to Elizabeth M. Murphy, Secretary, exchange-specific mechanisms that Commission from Scott R. Shewan, President, currently restrict trading on the relevant submissions should refer to File Public Investors Arbitration Bar Association, dated exchange under certain circumstances? Number SR–Nasdaq–2010–074 and June 14, 2010 (‘‘PIABA letter’’); and Letter to More generally, to what extent is it should be submitted on or before Elizabeth M. Murphy, Secretary, Commission from August 5, 2010. Jill I. Gross, Director, Ed Pekarek, Clinical Law appropriate for different exchanges to Fellow, and Jeffrey Gorenstein, Student Intern, Pace adopt different and potentially Law School Investor Rights Clinic, dated June 16, inconsistent approaches to trading 21 17 CFR 200.30–3(a)(12). 2010 (‘‘PIRC letter’’).

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the number of arbitrators on each list through NLSS and up to eight expand the number of arbitrators on generated by the Neutral List Selection arbitrators from each list of 16 each list (public, non-public, and public System (‘‘NLSS’’). arbitrators generated through NLSS. The chairperson) generated through NLSS The NLSS is a computer system that rules limiting strikes have significantly from eight arbitrators to 10 arbitrators. generates, on a random basis, lists of reduced extended lists and thus FINRA considered whether increasing arbitrators from FINRA’s rosters of increased the percentage of cases in each list of arbitrators would be unduly arbitrators (i.e., public, non-public, and which FINRA initially appoints burdensome for parties since parties chair rosters) for each arbitration case. arbitrators from the parties’ ranking would be reviewing the backgrounds of The parties select their panel through a lists. However, after each side exercises additional arbitrators during the ranking process of striking and ranking the its strikes, typically only one or two and striking stage of the arbitrator arbitrators on the lists. Currently, persons remain eligible to serve on a appointment process. In instances FINRA sends the parties lists of case. Therefore, when FINRA grants a where FINRA appoints arbitrators by available arbitrators, along with detailed challenge for cause or an arbitrator extended lists, parties still need to biographical information on each withdraws, FINRA often must appoint review arbitrators’ backgrounds to arbitrator. In a three-arbitrator case, the replacement arbitrator using an determine, for example, whether to other than one involving a dispute extended list. Forum users, including challenge an extended list arbitrator for among members, the parties receive both investor and industry parties, cause. FINRA staff discussed expanding three lists of eight arbitrators each—one continue to express concerns about the lists with both investor and industry public, one chair-qualified and one non- extended list appointments.7 representatives, and asked the public. Each party is permitted to strike As a result of these concerns, FINRA representatives to address the potential up to four of the eight names on each proposed to amend Rule 12403 of the burden of reviewing additional list and ranks the remaining names in Customer Code to expand the number of arbitrators. The representatives order of preference. FINRA appoints the arbitrators on each list (public, non- uniformly stated that they would prefer panel from among the names remaining public, and public chairperson) to review additional arbitrators at the 5 on the lists that the parties return. generated through NLSS from eight ranking and striking stage of the When there are no names remaining arbitrators to 10 arbitrators. Thus, in arbitrator appointment process in order on a list, or when a mutually acceptable every two party case, at least two to reduce the incidences of extended list arbitrator is unable to serve, a random arbitrators would remain on each list appointments. selection is made to ‘‘extend the list’’ by after strikes.8 FINRA stated that the II. Summary of Comments generating names of additional additional number of arbitrators will arbitrators to complete the panel. Parties increase the likelihood that the parties The Commission received six may not strike the arbitrators on the will get panelists they chose and comments regarding the proposed rule extended lists, but they may challenge ranked, even when FINRA must appoint change. On June 21, 2010, FINRA an arbitrator for cause (e.g., on the basis a replacement arbitrator. FINRA also submitted a response to the of conflict of interest). stated that, in cases with more than two comments.11 Prior to 2007, FINRA permitted parties, expanding the lists from eight to All of the commenters support the parties unlimited strikes of proposed 10 arbitrators should significantly proposed rule change, either in whole or arbitrators on lists. This often resulted reduce the number of arbitrator with certain modifications. The PIABA in parties collectively striking all of the appointments needed from extended letter states that ‘‘this rule change is arbitrators on each list generated lists.9 important because it will reduce the through NLSS. When this occurred, staff FINRA also proposed to amend Rule number of instances in which an would use NLSS to ‘‘extend the list’’ by 13403 of the Industry Code to expand arbitrator is appointed with no input generating names of additional the number of arbitrators on lists from or approval by the parties.’’ The arbitrators to complete the panel. Parties generated through NLSS.10 For disputes SIFMA letter states that the proposal expressed concern about extended list between members, FINRA would ‘‘will increase the likelihood that all arbitrator appointments because they expand the number of arbitrators on the arbitrators appointed to a case will have could not strike arbitrators from an non-public chairperson list generated been selected by the parties, result in extended list. In response to this through NLSS from eight arbitrators to fewer administrative ‘extended list’ concern, in 2007, FINRA changed the 10 arbitrators and the number of appointments, and enhance party choice arbitrator appointment process through arbitrators on the non-public list from and satisfaction with the selection a rule change that limited the number of 16 arbitrators to 20 arbitrators. For process.’’ Likewise, PIRC supports the strikes each party may exercise to four, disputes between associated persons, or proposal ‘‘because it increases the in an effort to reduce the frequency of between or among members and parties’ ability to present their dispute extended list appointments.6 Under the associated persons, FINRA would to an arbitrator of their own current rule, FINRA permits each party choosing,’’ 12 and the Caruso comments to strike up to four arbitrators from each 7 The rationale for the proposed rule change was state that the proposed rule change list of eight arbitrators generated confirmed in a telephone conversation between ‘‘would provide investors with greater Margo Hassan, FINRA Dispute Resolution, and control and choice over the individuals 5 In an arbitration between members, the panel Joanne Rutkowski, Division of Trading and Markets, consists of non-public arbitrators, and so the parties Commission, May 18, 2010. who will ultimately be appointed to receive a list of 16 arbitrators from the FINRA non- 8 FINRA did not propose to expand the number serve on the arbitration panels’’ and public roster, and a list of eight non-public of allowable strikes for each party. urges the Commission to approve the arbitrators from the FINRA non-public chairperson 9 Under the rules, each ‘‘separately represented’’ proposal on an expedited basis. roster. See FINRA Rules 13402 and 13403. Each party is entitled to strike four arbitrators from an separately represented party may strike up to eight eight arbitrator list. If, for example, a case involves of the arbitrators from the non-public list and up a customer, a member and an associated person, 11 See Letter to Elizabeth M. Murphy, Secretary, to four of the arbitrators from the non-public and each party is separately represented, even with Commission from Margo A. Hassan, Assistant Chief chairperson list. See FINRA Rule 13404. 10 arbitrators there is a chance that all of the Counsel, FINRA Dispute Resolution, Financial 6 Exchange Act Release No. 55158 (January 24, arbitrators will be stricken from the list. Industry Regulatory Authority, dated June 21, 2010 2007), 72 FR 4574 (January 31, 2007) (File No. SR– 10 Again, FINRA did not propose to expand the (‘‘FINRA response’’). NASD–2003–158). number of allowable strikes for each party. 12 See PIRC letter.

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The Steiner comments suggest reduce the number of arbitrators FOR FURTHER INFORMATION CONTACT: limiting the current proposal to cases in appointed in this way. Expanding the Yvonne Fraticelli, Division of Trading which there is only one respondent or number of arbitrators on lists generated and Markets, Securities and Exchange multiple respondents being represented through NLSS should help to reduce Commission, 100 F Street, NE., by only one attorney.13 The Steiner extended list appointments and so Washington, DC 20549, (202) 551–5654. comments also ask that: (1) FINRA be increase the likelihood that arbitrators Correction ordered to effectuate immediately from each initial list would remain on additional modifications to eliminate the list after the parties complete the In the Federal Register of July 8, the portions of Rule 12404 that give striking and ranking process. This, in 2010, in FR Doc. 2010–16668, on page each separately represented respondent turn, should enhance investor and 39313, in the first line of the second a separate set of strikes, and to replace industry participants’ confidence in the column, correct the section designation those portions with provisions that the arbitration process. Concerning the to read ‘‘II.’’, and on page 39314, fifth amount of strikes that may be exercised requests in the Steiner comments that line from the bottom of the first column by respondents in total cannot exceed FINRA be ordered to take certain and in the Solicitation of Comments the amount of strikes that can be actions, the Commission finds that heading in the second column, correct exercised in total by the claimant; (2) requested actions are beyond the scope the section designations to read ‘‘III.’’ that FINRA be ordered immediately to of the current rulemaking. and ‘‘IV.’’, respectively. rescind its interpretation of Rule 12404 Dated: July 9, 2010. IV. Conclusion that permits even non-appearing Florence E. Harmon, respondents from participating in the For the foregoing reasons, the Deputy Secretary. Commission finds that the proposed arbitrator selection process; and (3) that [FR Doc. 2010–17215 Filed 7–14–10; 8:45 am] rule change is consistent with the Act FINRA be ordered to immediately BILLING CODE 8010–01–P propose a rule change providing that and the rules and regulations instead of appointing a cram down thereunder applicable to a national arbitrator that a new selection list be securities association. SECURITIES AND EXCHANGE sent to the parties. FINRA notes that it It is therefore ordered, pursuant to COMMISSION is not proposing to amend its rules Section 19(b)(2) of the Act,17 that the proposed rule change (SR–FINRA– [Release No. 34–62479; File No. SR– relating to party strikes, participation in NYSEAmex–2010–31] arbitrator selection, or extended list 2010–022) be and hereby is approved. appointments and that, therefore, the For the Commission, by the Division of Self-Regulatory Organizations; NYSE comments are outside the scope of the Trading and Markets, pursuant to delegated Amex LLC; Notice of Filing of 18 proposed rule change.14 authority. Amendment Nos. 2 and 3, and Order Florence E. Harmon, III. Discussion Granting Accelerated Approval to a Deputy Secretary. Proposed Rule Change, as Modified by After careful review, the Commission [FR Doc. 2010–17275 Filed 7–14–10; 8:45 am] Amendment Nos. 1, 2, and 3 Thereto, finds that the proposed rule change is BILLING CODE 8010–01–P To Adopt as a Pilot Program a New consistent with the requirements of the Rule Series for the Trading of Act and the rules and regulations Securities Listed on the Nasdaq Stock thereunder applicable to a national SECURITIES AND EXCHANGE Market Pursuant to Unlisted Trading securities association.15 In particular, COMMISSION Privileges, and Amending Existing the Commission finds that the proposed [Release No. 34–62430; File No. SR–ISE– NYSE Amex Equities Rules as Needed rule change is consistent with Section 2010–69] To Accommodate the Trading of 15A(b)(6) of the Act,16 in that it is Nasdaq-Listed Securities on the designed, among other things, to Self-Regulatory Organizations; Exchange prevent fraudulent and manipulative International Securities Exchange, acts and practices; to promote just and LLC; Notice of Filing and Immediate July 9, 2010. equitable principles of trade; to remove Effectiveness of Proposed Rule I. Introduction impediments to and perfect the Change Relating To Amending the mechanism of a free and open market On March 26, 2010, NYSE Amex LLC Direct Edge ECN Fee Schedule; (‘‘Exchange’’ or ‘‘NYSE Amex’’) filed with and a national market system; and, in Correction general, to protect investors and the the Securities and Exchange ‘‘ ’’ public interest. AGENCY: Securities and Exchange Commission ( Commission ), pursuant The Commission believes that the Commission. to Section 19(b)(1) of the Securities 1 proposed rule change will protect ACTION: Notice; correction. Exchange Act of 1934 (‘‘Act’’) and Rule 2 investors and the public interest by 19b–4 thereunder, a proposed rule providing investors greater control in SUMMARY: The Securities and Exchange change to: (1) Adopt, as a pilot program, the arbitrator selection process. Forum Commission published a document in a new NYSE Amex Equities Rule Series users have criticized extended list the Federal Register of July 8, 2010, (Rules 500–525) for the trading of appointments and asked FINRA to concerning a Notice of Filing and securities listed on the Nasdaq Stock Immediate Effectiveness of Proposed Market (‘‘Nasdaq’’) pursuant to unlisted 13 PIRC supports the proposed rule change, and Rule Change Relating to Amending the trading privileges (‘‘UTP’’); and (2) advocates a further rule revision that would give Direct Edge ECN Fee Schedule by the amend existing NYSE Amex Equities four strikes per side, rather than to each ‘‘separately International Securities Exchange, LLC; rules to accommodate the trading of represented party.’’ See id. The document contained a Nasdaq-listed securities on the 14 See FINRA response. typographical error in several section Exchange. Subsequently, on April 6, 15 In approving the proposed rule change, the Commission has considered the rule change’s designations. 2010, NYSE Amex filed Amendment impact on efficiency, competition, and capital formation. 15 U.S.C. 78c(f). 17 15 U.S.C. 78s(b)(2). 1 15 U.S.C. 78s(b)(1). 16 15 U.S.C. 78o–3(b)(6). 18 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.

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No. 1 to the proposed rule change. The the approach used by the Exchange for permitted to make any bid, offer, or proposed rule change, as amended, was Supplemental Liquidity Providers transaction for a Nasdaq Security on published in the Federal Register on (‘‘SLPs’’). Exchange systems, or route an order for April 19, 2010.3 The Commission • For those Nasdaq Securities in a Nasdaq Security to another market received no comments on the proposal. which it is registered, a DMM Unit will center from Exchange systems, before On June 21, 2010, NYSE Amex filed be responsible for the affirmative 9:30 a.m. or after the close of the Off- Amendment No. 2 to the proposed rule obligation of maintaining a fair and Hours Trading session. change. On July 9, 2010, NYSE Amex orderly market in accordance with C. Assignment of Nasdaq Securities to filed Amendment No. 3 to the proposed Exchange rules, subject to an enhanced DMMs and SLPs rule change. This order provides notice quoting requirement and a phased-in of filing of Amendment Nos. 2 and 3, implementation of Depth Guidelines The Exchange proposes to trade and grants accelerated approval to the and Price Participation Points (‘‘PPPs’’) Nasdaq Securities within the existing proposed rule change, as modified by to enable the Exchange to collect trading DMM and SLP framework used to trade Amendment Nos. 1, 2, and 3. data adequate to calculate such its listed securities. The Exchange will guidelines. create a ‘‘Nasdaq Securities Liaison II. Description of the Proposal • Trading in Nasdaq Securities will Committee,’’ consisting of NYSE A. Overview be subject to rules that are substantially Euronext employees of the Operations ‘‘ ’’ and U.S. Markets Divisions,5 which will The Exchange proposes to adopt, as a similar to FINRA’s Manning Rule, be responsible for reviewing and pilot program, a new NYSE Amex rather than Rule 92—NYSE Amex admitting Nasdaq Securities for trading Equities Rule Series to specifically Equities. • The Exchange’s audit trail rules, on the Exchange. After admitting a govern the trading of any security listed including Rules 123– and 132B–NYSE Nasdaq Security to dealings on the on the Nasdaq that (1) is designated as Amex Equities, will apply to the trading Exchange, the Nasdaq Securities Liaison an ‘‘eligible security’’ under the Joint of Nasdaq Securities on the Exchange, Committee also will assign the security Self-Regulatory Organization Plan to a DMM Unit and one or more SLPs.6 Governing the Collection, Consolidation except that those members and member No more than one DMM Unit will be and Dissemination of Quotation and organizations that are also FINRA assigned to any Nasdaq Security, and a Transaction Information for Nasdaq- members and subject to FINRA’s Rule ‘‘ ’’ member organization will not be Listed Securities Traded on Exchanges 7400 Series ( Order Audit Trail System permitted to be registered as both the on an Unlisted Trading Privilege Basis, or ‘‘OATS’’) will be exempt from Rules DMM Unit and an SLP for the same as amended (‘‘UTP Plan’’); and (2) has 123– and 132B–NYSE Amex Equities. NYSE Amex will trade Nasdaq-listed Nasdaq Security. In its discretion, the been admitted to dealings on the Nasdaq Securities Liaison Committee Exchange pursuant to UTP in equities and any other Nasdaq-listed also may reassign one or more Nasdaq accordance with Section 12(f) of the security that trades like an equity Securities to a different DMM Unit or to Act 4 (collectively, ‘‘Nasdaq Securities’’). security (e.g., rights, warrants), and will a different SLP or SLPs. The Exchange proposes to trade Nasdaq also trade one Nasdaq-listed exchange ‘‘ ’’ Existing Exchange DMM Units will be Securities on the same systems and traded fund ( ETF ), the Invesco TM automatically eligible for the assignment facilities it uses to trade its listed PowerShares QQQ Exchange Traded of Nasdaq Securities, so long as they securities in accordance with the same Fund (‘‘QQQs’’). The Exchange intends to implement qualify in accordance with Rules 98– trading rules, subject to certain trading of Nasdaq Securities using a and 103B(II)–NYSE Amex Equities, and exceptions: • phased-in approach, and to expand the proposed Rule 504(b)—NYSE Amex There will not be an opening or 7 closing auction for Nasdaq Securities program to eventually include all Equities. The Exchange intends to admit the traded on the Exchange. Trading in securities listed on Nasdaq. The QQQ to trading, and has proposed a set Nasdaq Securities will open on a quote Exchange proposes that this pilot of special requirements governing the at 9:30 a.m. and will close at 4 p.m., or program commence on the date the Commission approves the proposed rule assignment of the QQQs and its immediately thereafter under certain 8 circumstances, using the last sale on the change, and that it continue until the component securities. Exchange as the Closing Price. earlier of the Commission’s approval to D. Integration of NYSE Amex-Listed • ‘‘Good ’til Canceled’’ (‘‘GTC’’) Orders make such pilot program permanent or Securities and Nasdaq Securities at and ‘‘Stop’’ Orders for Nasdaq Securities September 30, 2010. Posts on the Trading Floor will be modified to provide that any B. Applicability and Trading Hours The Exchange anticipates that some GTC or Stop Orders that are unexecuted DMM Units currently registered on the at the close of trading will be treated as Trading of Nasdaq Securities on the NYSE will seek to register as DMM Day Orders and canceled. In addition, Exchange shall be governed by existing the Exchange will not accept limit or NYSE Amex Equities rules, as well as 5 A representative of NYSE Regulation Inc. market ‘‘At the Close’’ (‘‘MOC/LOC’’), ‘‘At the new Rule 500 Series. To the extent the existing rules conflict with the Rule (‘‘NYSER’’) would act as an ad hoc member of the the Opening’’ (‘‘OPG’’), ‘‘Closing Offset’’ Committee. (‘‘CO’’) or ‘‘Good ’til Cross’’ (‘‘GTX’’) 500 Series, the Rule 500 series will 6 See proposed NYSE Amex Equities Rule 501. Orders for the trading of Nasdaq control. 7 The Exchange proposes to amend Rules 98(b)(2) Securities. All other order types will be Pursuant to proposed Rule 502, the (definition of ‘‘DMM unit’’) and 98(b)(15) (definition of ‘‘Related products’’)—NYSE Amex Equities to accepted. Exchange will trade Nasdaq Securities during regular trading hours in accommodate the trading of Nasdaq Securities on • Each Nasdaq Security will be the Exchange. assigned one Designated Market Maker accordance with existing Rule 51. The 8 See proposed Rule 504—NYSE Amex Equities. (‘‘DMM’’) Unit, though the allocation Exchange also will permit Nasdaq The Exchange stated that it will review proposed process will be streamlined to follow Securities to trade in the Exchange’s Rule 504—NYSE Amex Equities and the provisions ‘‘Off-Hours Trading Facility.’’ Due to governing the allocation of the QQQs and its component securities if the Exchange’s share of the 3 See Securities Exchange Act Release No. 61890 modifications to the opening and market for the Nasdaq Securities it trades exceeds (April 12, 2010), 75 FR 20401 (‘‘Notice’’). closing for Nasdaq Securities, a member 10% of the consolidated Tape C aggregate average 4 15 U.S.C. 78l(f). or member organization will not be daily trading volume. See id., 75 FR at 20405.

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Units on the Exchange to trade Nasdaq DMM Unit would need to commit staff Securities. Instead, NYSE Amex will Securities. Under Exchange rules, all to trade NYSE-listed securities separate open trading on a quote at 9:30 a.m. and current NYSE members and member from staff committed to trade Exchange- close on the last sale on the Exchange organizations are deemed members and listed or traded securities at any given at 4 p.m. member organizations of the Exchange, time during the trading day. However, and DMM Units are automatically intraday staff moves between panels 1. Openings granted an NYSE Amex Equities trading would be permitted. Under proposed Rule 508(a), trading license.9 An NYSE DMM Unit that E. Security Allocation and Reallocation in each Nasdaq Security will open at wishes to trade Nasdaq Securities and 9:30 a.m. or as soon thereafter as that is not already registered as a DMM Rule 103B–NYSE Amex Equities prescribes the criteria and procedures possible, or at such other time as may Unit on the Exchange will need to be specified by the Exchange, based on register as such with the Exchange to for the allocation and/or reallocation of NYSE Amex-listed equities securities to a quote published by the DMM Unit ensure proper tracking and systems assigned to the security. Because configuration. Similarly, each DMM will registered and qualified DMM Units. In particular, part IX of the rule currently Nasdaq Securities will open on a quote, need to register with the Exchange to DMM Units will not be permitted or confirm that it meets all applicable provides that Exchange-listed equity securities must be allocated to posts on required to provide pre-opening or registration requirements and to ensure opening indications as prescribed by proper tracking and systems set-up. In the Trading Floor that are exclusively Rules 15– and 123D–NYSE Amex addition, an NYSE DMM Unit seeking to designated for the trading of NYSE Equities. In addition, because the register as a DMM Unit on the Exchange Amex securities. Exchange will not conduct an opening will also need to advise FINRA, so that F. Assignments to SLPs auction for Nasdaq Securities, DMM FINRA can assess whether such Units will not be permitted or required registration triggers different and/or An Exchange member or member to hold or represent orders for Nasdaq additional financial and operational organization may apply to be an SLP in Securities pursuant to Rule 115A.20– requirements, including but not limited Nasdaq Securities and will be eligible NYSE Amex Equities. Orders for Nasdaq to those pertaining to net capital. for the assignment of Nasdaq Securities Proposed Rules 103B(IX) and 504(d)– once it registers and qualifies as an SLP Securities shall not be accepted by the NYSE Amex Equities will require that in accordance with Rule 107B–NYSE Exchange, and will be systemically Nasdaq Securities be allocated for Amex Equities. As with NYSE- blocked, before trading opens on any 11 trading, and DMM Units shall trade registered DMMs and DMM Units, an business day. NYSE-registered SLP is automatically such securities, only at panels 2. Closings exclusively designated for trading listed deemed a member organization of NYSE and/or Nasdaq Securities on the Amex Equities under Rule 2.10–NYSE Under Rule 508(b), trading in Nasdaq Exchange. Amex Equities. An NYSE-registered SLP Securities will not close based on a Exchange-listed equities securities that wishes to trade Nasdaq Securities closing auction, but will instead close at currently trade on Posts 1 and 2 on the as an NYSE Amex SLP must register the end of the regular trading session at Trading Floor. However, there are not with and be approved by the Exchange 4 p.m., or at such other time as may be enough panels on those posts to as an SLP in accordance with all specified by the Exchange. Except for accommodate the trading of additional applicable NYSE Amex Equities Rules. ‘‘aggregate-price orders’’ 12 or ‘‘closing- hundreds of Nasdaq Securities. To The Nasdaq Securities Liaison price orders’’ entered to offset an error accommodate the trading of Nasdaq Committee will assign one or more SLPs entered in the ‘‘Off-Hours Trading Securities, the Exchange needs to trade to Nasdaq Securities for trading on the Facility’’ in accordance with proposed Exchange-listed and Nasdaq Securities Exchange. A member organization Rule 511–NYSE Amex Equities, orders on additional posts. Therefore, the cannot be both the DMM Unit and an for Nasdaq Securities will not be Exchange proposes to amend Rule SLP for the same Nasdaq Security. If an accepted by the Exchange after the 103B–NYSE Amex Equities to permit SLP withdraws from its status as an regular trading session on any business SLP, its Nasdaq Securities will be Exchange-listed securities and securities day.13 admitted to dealings on the Exchange on reassigned to a different SLP(s) in The ‘‘Closing Price’’ for a Nasdaq a UTP basis to trade on posts throughout accordance with Rule 107B–NYSE Security will be the price of its last sale the Trading Floor. To prevent any Amex Equities. on the Exchange at or prior to the close confusion that could arise among G. Units of Trading; Bids and Offers; members trading both NYSE-listed and Dissemination of Quotations; Priority Exchange-listed or traded securities, 11 The Exchange has filed a proposed rule change to incorporate the receipt and execution of odd-lot which trade under different rules, Proposed Rule 506–NYSE Amex Equities prescribes the basic unit of interest into the round lot market (‘‘trading-in- proposed Rule 103B(IX) would provide ’’ trading for Nasdaq Securities, and shares ) and to decommission the use of the odd- that Exchange-listed and/or traded (i.e. lot system. See Securities Exchange Act Release No. addresses some requirements for bids Nasdaq Securities) securities shall be 62303 (June 16, 2010), 75 FR 35865 (June 23, 2010) and offers, the dissemination of (SR–NYSEAmex–2010–53). However, until the assigned only to panels designated for quotations, and priority and parity of implementation of trading-in-shares by the the trading of such securities. Exchange, odd-lot orders in Nasdaq Securities that A DMM Unit that is registered to trade executions of Nasdaq Securities. Nasdaq are received by the Exchange prior to the opening NYSE- and Exchange-listed securities, Securities will be traded almost exactly of trading in those securities on the Exchange will as the Exchange’s listed securities.10 be held and will not be executed until the first as well as Nasdaq Securities, could round-lot transaction in each particular security. trade all such securities at the same H. Openings and Closings See section II.U infra. Open odd-lot orders may be post. However, a DMM Unit staff person The Exchange will not conduct an cancelled by the entering firm at any time. 12 The Exchange is proposing to amend the would not be permitted to opening or closing auction in Nasdaq simultaneously trade both NYSE and definition of ‘‘aggregate-price order’’ under Rule 900–NYSE Amex Equities to accommodate trading NYSE Amex/Nasdaq securities, and the 10 See Notice, supra note 3, 75 FR at 20405–06, Nasdaq Securities in the Off-Hours Trading Facility. for a detailed discussion of the trading rules 13 These terms are defined under Rule 900–NYSE 9 See Rules 2.10– and 2.20–NYSE Amex Equities. applicable to Nasdaq Securities. Amex Equities.

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of regular trading at 4 p.m.14 Orders for permitted for the trading of Nasdaq be responsible for facilitating trading Nasdaq Securities that are unexecuted at Securities.16 when the market is ‘‘slow’’ (such as the close of trading at 4 p.m. shall be during a gap quote) 21 and helping to I. Dealings of DMM Units and SLPs cancelled. close Nasdaq Securities that are subject When the market for a Nasdaq As noted above, the Exchange to an imbalance. Other obligations Security is slow at the close of trading proposes to trade Nasdaq Securities would apply, including providing because of a gap quote situation, the using the same DMM/SLP framework as contra side liquidity as needed for the DMM Unit must execute the final trade currently used for its listed securities. execution of odd-lot orders in Nasdaq in the security in a manner consistent 1. DMM Units Securities, meeting stabilization and re- with a fair and orderly market, with entry requirements, and complying with reference to the trading characteristics DMM Units registered to trade Nasdaq the net capital requirements under the of the security at issue, including its Securities on the Exchange will be Act and Rules 103.20–, 4110–, and price, average daily trading volume required to fulfill their responsibilities 4120–NYSE Amex Equities. (‘‘ADTV’’), average volatility, the prior and duties for those securities in The DMM would be the sole market sale of the security on the Exchange, accordance with all applicable maker on the Exchange in its registered and the closing price on the UTP Listing Exchange rules and requirements Nasdaq Securities. The Exchange 17 Market.15 To ensure this, Floor (‘‘DMM rules’’), subject to two believes that, because it would retain Governor approval is required to close modifications. First, in lieu of the tiered obligations that other market a Nasdaq Security that is ‘‘slow.’’ In such quoting requirement (5% and 10%) participants, both on the Exchange and circumstances, the DMM will pair off currently in place for listed securities in other markets, do not have, a DMM liquidity to the extent available, and under Rule 104(a)(1)(A)—NYSE Amex Unit should retain the benefits of parity then execute a final trade at or Equities, proposed Rule 509(a)(1) and liquidity incentives, as well as the immediately after the close that will set requires a DMM Unit to have a bid or ability to use the Capital Commitment 22 the Closing Price. All residual offer at the national best bid or national Schedule (‘‘CCS’’), when trading 23 marketable interest for that security best offer (‘‘inside’’) in each assigned Nasdaq Securities. In addition, other provisions of received prior to the close of trading Nasdaq Security an average of at least existing Exchange rules related to DMM shall first be executed at the Closing 10% of the time, or more, during the responsibilities and obligations would Price and then all unexecuted interest regular business hours of the Exchange for each calendar month.18 Second, be modified: for the security shall be cancelled. • pursuant to Rules 104(f)(ii)– and (iii)– DMMs will not be required to If an extreme order imbalance at or obtain Floor Official approval prior to near the close of the regular trading NYSE Amex Equities, a DMM Unit is responsible for maintaining price engaging as a dealer in transactions for session could result in a Closing Price Nasdaq Securities that fall under Rule dislocation, the procedures of Rule continuity with reasonable depth for its registered Nasdaq Securities, in 79A.20–NYSE Amex Equities. 123C(9)–NYSE Amex Equities, which • Notwithstanding the prescriptions permit the Exchange to temporarily accordance with Depth Guidelines to be published by the Exchange. However, to of Rule 36.30–NYSE Amex Equities suspend the hours of operation for the governing communications to and from solicitation and entry of orders into give the Exchange time to phase-in appropriate Depth Guidelines and PPPs, the DMM Unit post on the Trading Exchange systems, shall apply. Floor, an individual DMM registered in However, because the Exchange will not these provisions will not be operative until 18 weeks after the approval of the an ETF may use a telephone connection conduct a closing auction in Nasdaq or order entry terminal at the DMM Securities, no other procedures of Rule proposed rule change by the Commission.19 Unit’s post to enter a proprietary order 123C–NYSE Amex Equities shall apply in the ETF in another market center, in to trading in Nasdaq Securities. As is the case with listed securities, a DMM Unit also will be responsible for a component security of such ETF, or in The proposed modifications to the facilitating openings, reopenings, and an option or futures contract related to opening and closing of the trading of closings for each of the Nasdaq such ETF, and may use the post Nasdaq Securities require corresponding Securities in which it is registered, in modifications to the ‘‘GTC’’ and ‘‘Stop’’ Securities, DMMs would not be responsible for accordance with applicable NYSE Amex order types. Specifically, GTC Orders facilitating openings and closings. The Exchange Equities rules, including the procedures and unelected Stop Orders for Nasdaq has represented that, if it were to amend its rules of proposed Rules 508– and 515–NYSE to provide for openings and closing in Nasdaq Securities that are not fully executed at Amex Equities.20 A DMM Unit also will Securities, a DMM would be responsible for the close of the regular trading session facilitating openings and closings in its assigned securities. shall be treated as Day Orders and shall 16 See proposed Rule 501—NYSE Amex Equities. 21 A DMM Unit facilitates trading in slow markets be cancelled; they will not remain on 17 The term ‘‘DMM rules’’ is defined in Rule 98— by either conducting an auction or trading out of the Exchange’s systems overnight. In NYSE Amex Equities. the slow market to resume a ‘‘fast’’ (i.e. quote- addition, because the Exchange will not 18 Credit will be given for executions for the protected) market. It does not mean, however, that conduct either an opening or closing liquidity provided by the DMM Unit. Reserve or a DMM Unit must participate on the contra-side of auction in Nasdaq Securities, the other hidden orders entered by the DMM Unit will the market when it is slow. not be included in the inside quote calculations. 22 See Rule 1000(d)—NYSE Amex Equities. Exchange will not accept MOC/LOC, 19 The Exchange believes that a phased-in 23 The Exchange has stated that it will submit a OPG, CO, or GTX Orders for Nasdaq approach is appropriate so that Depth Guidelines separate fee filing detailing the rebate structure for Securities. All other order types noted and PPPs may be calculated based on actual trading trading Nasdaq Securities at a later date. The in Rule 13–NYSE Amex Equities will be data of Nasdaq Securities on the Exchange. Exchange has represented that, although the price Accordingly, following implementation and roll-out levels will likely differ from the rebate in place for of the pilot program, NYSE Amex would collect and trading in listed equities, the structure will be 14 See Rules 502– and 508– NYSE Amex Equities. analyze 60 days of trade data and would then similar—specifically, that rebates will be paid to See also proposed Rule 501–NYSE Amex Equities. implement these guidelines for trading Nasdaq DMMs, SLPs, and other members (including Floor 15 Under proposed Rule 501–NYSE Amex Securities on the Exchange within 30 calendar days. brokers) who provide liquidity on the Exchange. Equities, the Exchange defines the term ‘‘UTP The 18-week phase-in period contemplates a two- Telephone conversation between Jason Harman, Listing Market’’ to have the same meaning as the week period to roll out the pilot program. Consultant, NYSE Amex, and Nathan Saunders, term ‘‘Listing Market,’’ as defined under the ‘‘UTP 20 However, because proposed rules do not Special Counsel, Division of Trading and Markets, Plan’’ (also defined therein). provide for opening and closing auctions in Nasdaq Commission, on June 9, 2010.

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telephone to obtain public market from certain prospectus delivery continues, the Exchange may resume information with respect to such ETF, requirements under Section 24(d) of the trading in the product only if options, futures, or component Investment Company Act of 1940 or the calculation and wide dissemination of securities. If the order in the component product is not otherwise subject to the intraday indicative value, the value security of the ETF is to be executed on prospectus delivery requirements under of the underlying index, portfolio or the Exchange, the order must be entered the Securities Act of 1933. As a result, instrument, or similar value resumes or and executed in compliance with Rule members and member organizations trading in the product resumes on the 112–NYSE Amex Equities and Rule will be required to provide all UTP Listing Market. 11a2–2(T) under the Act, and must be purchasers of such an ETF with a For an ETF where a net asset value or entered only for the purpose of creating written description of the terms and disclosed portfolio is disseminated, the a bona fide hedge for a position in the characteristics of the product at the time Exchange will immediately halt trading ETF. The Exchange is proposing to add confirmation of the first transaction in in such product upon notification by the this provision to permit DMM Units the product is delivered to the UTP Listing Market that the net asset registered in an ETF to execute more purchaser. In addition, members and value or disclosed portfolio is not being efficiently hedging transactions for the member organizations will be required disseminated to all market participants security.24 to include a written description with at the same time. The Exchange may any sales material relating to the resume trading in the product only 2. SLPs product that they provide to customers when dissemination of the net asset An SLP registered in one or more or the public. Any other written value or disclosed portfolio to all market Nasdaq Securities must fulfill its materials provided by a member or participants at the same time resumes or responsibilities and duties for those member organization to customers or trading in the product resumes on the securities in accordance with all the public making specific reference to UTP Listing Market. applicable Exchange rules, including, the ETF as an investment vehicle must In addition, the Exchange will enter but not limited to, Rule 107B–NYSE include a statement that such materials into a comprehensive surveillance Amex Equities. The SLP quoting are available. sharing agreement with any market requirements for Nasdaq Securities shall Members or member organizations trading components of the index or be the same as for securities listed on carrying omnibus accounts for non- portfolio on which the product is based the Exchange. members will be required to inform to the same extent as the UTP Listing J. Derivative Securities Products non-members that execution of an order Market’s rules require the UTP Listing to purchase an ETF for the omnibus Market to enter into a comprehensive The Exchange also proposes some account will be deemed to constitute surveillance sharing agreement with specific additional provisions that will agreement by the non-member to make such markets. apply to ETFs that are ‘‘new derivative such written description available to its securities products’’ traded pursuant to customers on the same terms as are K. Off-Hours Trading Rule 19b–4(e) under the Act.25 directly applicable to members and The Exchange proposes to amend the For each such ETF, the Exchange member organizations under this Rule. definition of ‘‘aggregate-price order’’ must file a Form 19b–4(e) with the Upon request of a customer, a member under Rule 900–NYSE Amex Equities to Commission. In addition, the Exchange or member organization shall also accommodate trading of Nasdaq will distribute an information circular provide a prospectus for the particular Securities in the Off-Hours Trading prior to the commencement of trading in product. Facility. Nasdaq Securities will be each such product that generally To accommodate the trading of ETFs accepted by the Exchange’s Off-Hours includes the same information as that qualify under this rule, the Trading Facility as part of an aggregate- contained in the information circular Exchange also proposes additional price order, or as a closing-price order provided by the UTP Listing Market for requirements for trading halts. If a entered to offset a transaction made in the product, including: (a) The special temporary interruption occurs in the error, as those terms are defined under risks of trading the new product; (b) the calculation or wide dissemination of the Rule 900–NYSE Amex Equities. Exchange rules that will apply to the intraday indicative value, the value of new product, including Rule 405– the underlying index, portfolio or L. LRPs NYSE Amex Equities; (c) information instrument, or similar value of a product In its original proposal, the Exchange about the dissemination of the value of and the UTP Listing Market halts proposed to modify the rules developed the underlying assets or indexes; and (d) trading in the product, the Exchange, for its primary market to add values the risks of trading outside of the regular upon notification by the UTP Listing used to calculate LRPs for Nasdaq trading session for the product due to Market of such halt due to such Securities traded on the Exchange. the lack of calculation or dissemination temporary interruption, shall also However, in Amendment No. 3, NYSE of the value of the underlying assets or immediately halt trading in that Arca revised the proposal to provide index, the intra-day indicative value, or product. that LRPs would not apply to Nasdaq a similar value. If the interruption in the calculation Securities. Members and member organizations or wide dissemination of the intraday that trade these ETFs will be subject to indicative value, the value of the M. Trading Ahead of Customer Limit the prospectus delivery requirements of underlying index, portfolio or Orders and Customer Market Orders the Securities Act of 1933, unless the instrument, or similar value continues Proposed Rules 513– and 514–NYSE product is the subject of an order by the as of the commencement of trading on Amex Equities prescribe limits on Commission exempting the product the Exchange on the next business day, proprietary trading by a member or the Exchange shall not commence member organization holding an 24 The Exchange modeled this provision after a trading of the product on that day. If the unexecuted customer order in a Nasdaq provision in NYSE Rule 36.30. See Securities interruption in the calculation or wide Security. Generally, that member or Exchange Act Release No. 44616 (July 30, 2001), 66 FR 40761 (August 3, 2001) (SR–NYSE–2001–08) dissemination of the intraday indicative member organization would not be (order approving amendments to NYSE Rule 36.30). value, the value of the underlying index, permitted to execute a proprietary trade 25 17 CFR 240.19b–4(e). portfolio or instrument, or similar value for that security at a price that would

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satisfy the customer’s order without Exchange’s members and member involving Nasdaq Securities on the executing the customer’s order at that organizations are FINRA members, and Exchange will be required to comply price. These rules are based on FINRA requires that any order in a with all applicable NYSE Amex Equities substantially similar existing FINRA Nasdaq-listed security by a member be rules related to clearance and settlement rules and interpretations that prohibit reported to OATS, regardless of where of such transactions. trading ahead of customer orders.26 the order is executed. According to the Q. Limitation of Liability N. Trading Halts Exchange, although OATS, OTS, and FESC contain substantially the same The Exchange will be relying on data Generally, as prescribed in proposed order information, the data are in feeds from the UTP Listing Market for Rule 515–NYSE Amex Equities, the different formats and the systems are the trading of Nasdaq Securities. As a Exchange will follow all applicable not directly compatible. result, the Exchange proposes to include NYSE Amex Equities Rules governing To overcome this technical obstacle, a specific provision limiting liability for halts or suspensions, for both regulatory the Exchange proposed Rule 516–NYSE any loss, damage, claim, or expense and/or non-regulatory purposes, of the Amex Equities. This rule would exempt arising from any inaccuracy, error, trading of Nasdaq Securities on the Exchange members or member delay, or omission of any data regarding Exchange, including Rules 51–, 80B–, organizations that are also FINRA Nasdaq Securities, including, but not 80C–, 123D–, and 510–NYSE Amex members and subject to OATS limited to, the collection, calculation, Equities. reporting 27 from the requirements of compilation, reporting, or dissemination In addition, the Exchange will halt or Rules 123– and 132B–NYSE Amex of any Nasdaq Security Information, as suspend trading in a Nasdaq Security Equities. This provision is designed to defined in Rule 522—NYSE Amex when trading in that security has been assist dual NYSE Amex/FINRA Equities, except as provided in Rules halted or suspended by the UTP Listing members and member organizations that 17– and 18– NYSE Amex Equities. In Market for regulatory reasons in intend to enter and/or execute orders in addition, the Exchange also expressly accordance with its rules and/or the Nasdaq Securities on both the Exchange disclaims making any express or UTP Plan. The Exchange will also halt and other markets. implied warranties with respect to any or suspend trading in a Nasdaq Security For dual NYSE Amex/FINRA Nasdaq Security, any Nasdaq Security when the authority under which the members, FINRA’s OATS rules will Information, or the underlying index, security trades on the Exchange or the apply to an order in a Nasdaq Security portfolio, or instrument that is the basis UTP Listing Market has been revoked. up to when it is routed to the Exchange. for determining the component This can occur when the Nasdaq At that point, if the order is transmitted securities of an ETF. Security is no longer designated as an to a Floor broker via an Exchange ‘‘eligible security’’ pursuant to the UTP R. Jurisdiction system, the Exchange’s OTS and FESC Plan or is no longer listed by the UTP requirements will apply to the order and Rule 2A(b)—NYSE Amex Equities Listing Market. Also, if the Exchange capture its subsequent handling and currently provides that the Exchange has removed a Nasdaq Security from execution on the Exchange.28 All has jurisdiction to approve listings dealings, trading will be halted or Exchange-only, non-FINRA members or applications for securities admitted to suspended. dealings on the Exchange and may also If trading of a Nasdaq Security is member organizations will be subject to the Exchange’s OTS and FESC suspend or remove such securities from halted or suspended pursuant to trading. The Exchange proposes to proposed Rule 515–NYSE Amex requirements exclusively throughout the handling of an order for a Nasdaq amend this rule to include the Equities, trading of the affected security admission of Nasdaq Securities to on the Exchange will resume in Security. The Exchange proposes to amend dealings on the Exchange on a UTP accordance with the procedures of basis. applicable NYSE Amex Equities rules, Rules 123–, 132B–, 342–, and 351– including Rule 508–NYSE Amex NYSE Amex Equities, which require S. Proposed Amendments to Non-NYSE Equities, the rules of the UTP Listing members and member organizations to Amex Equities Rule 476A Market, and/or the UTP Plan. Any provide any trading information requested by the Exchange, to specify The Exchange proposes to amend orders for a Nasdaq Security that are Non-NYSE Amex Equities Rule 476A unexecuted at the time trading is halted that they apply to both securities listed on the Exchange and securities ‘‘traded’’ Part 1A to include certain of the on the Exchange shall be cancelled, and proposed NYSE Amex Equities Rule 500 the Exchange shall not accept any new on the Exchange, which include Nasdaq Securities. Series in the Exchange’s Minor Rule orders for the affected security for the Violation Plan (‘‘MRVP’’). Included are: duration of the halt. P. Clearance and Settlement • Rule 502—NYSE Amex Equities O. Reporting and Recordkeeping Under proposed Rule 518—NYSE prohibition on making a bid, offer, or transaction, or routing an order, for a Under the Exchange’s current rules, Amex Equities, members and member organizations that conduct transactions Nasdaq Security on or from Exchange members and member organizations are systems before 9:30 a.m. or after the required to record and maintain certain 27 See FINRA Rule 7400 (‘‘Order Audit Trail close of the Off-Hours Trading session. details of an order in an electronic order • Rule 504(b)(5)—NYSE Amex tracking system (‘‘OTS’’). Additionally, System’’). 28 The Exchange has sought and received Equities requirement for a DMM Unit members and member organizations that interpretive guidance from FINRA that FINRA Rule registered in a Nasdaq Security that is act as Floor brokers must record and 7440(c)(6) exempts from FINRA’s OATS an ETF to report the listed concentration maintain certain details of an order in requirements those orders in Nasdaq Securities measures. the Exchange’s Front-End System received by a Floor broker that are first routed to • the Exchange through Exchange systems, such as Rule 504(b)(6)—NYSE Amex Capture (‘‘FESC’’). Currently, most of the the Common Customer Gateway. See Letter from Equities requirement to commit staff for Brant K. Brown, Associate General Counsel, FINRA, the trading of NYSE-listed securities 26 See FINRA/NASD Interpretive Material (IM) to Claudia Crowley, NYSE Regulation, Inc., dated separate from that for the trading of 2110–2 (Trading Ahead of Customer Limit Order) May 21, 2010 (filed with the Commission as Exhibit and FINRA/NASD Rule 2111 (Trading Ahead of 3 to Partial Amendment No. 2 to SR–NYSE–2010– Exchange-listed securities and/or Customer Market Orders). 31, dated June 21, 2010). Nasdaq Securities and prohibition on

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trading NYSE-listed securities together beginning of the trading day (i.e., the certain minor modifications to the with Exchange-listed securities and/or DMM Unit publishes a quote); (3) operation of these rules, and adding Nasdaq Securities at the same time. amend proposed Rule 509(a)—NYSE certain new rules, to accommodate the • Rule 508(a)(2)—NYSE Amex Amex Equities to correct a drafting trading of Nasdaq Securities on a UTP Equities requirement for a DMM Unit to error, and clarify that a DMM Unit must basis. The Commission is approving all open trading in Nasdaq Securities at maintain a continuous two-sided quote of these modifications and additions 9:30 a.m. or as soon thereafter as with reasonable size; (4) delay described in the proposed rule change, possible. implementation of the certain although only certain aspects of the • Rule 508(b)(2)—NYSE Amex provisions concerning PPPs; (5) remove proposal are highlighted in the Equities requirements for closing a the application of LRPs to trading in following discussion. Nasdaq Security in a manual or slow Nasdaq Securities; (6) add new Rule A. Benefits and Obligations of Market market. 508(a)(3)—NYSE Amex Equities to the Makers • Rule 509(a)—NYSE Amex Equities Exchange’s MRVP under Rule 476A; (7) requirements for DMM Units. incorporate new Rule 80C—NYSE Amex In its approval of NYSE’s new market • Rule 509(b)—NYSE Amex Equities Equities, which governs trading pauses, model pilot program, the Commission requirements for DMM communications into proposed Rule 515—NYSE Amex recognized that the participation of from the Floor. Equities; and (8) provide that DMMs do market makers in exchange markets may • Rule 510(c)—NYSE Amex Equities not need Floor Official approval for benefit public customers by promoting requirements for dissemination and trading halts of Nasdaq Securities under more liquid and efficient trading, and distribution of information for Nasdaq Rule 123D—NYSE Amex Equities. that an exchange may legitimately Securities that are derivative securities confer benefits on market participants III. Discussion and Commission’s products. willing to accept substantial • Rule 516—NYSE Amex Equities Findings responsibilities to contribute to market requirements for reporting and After careful consideration, the quality.36 While the rules of an recordkeeping of transactions in Nasdaq Commission finds that the proposed exchange may confer special or unique Securities. rule change is consistent with the benefits to certain types of participants, • Rule 518—NYSE Amex Equities requirements of the Act and the rules they also must ensure, among other requirements for clearance and and regulations thereunder applicable to things, that investors and the public settlement of transactions in Nasdaq a national securities exchange.31 In interest are protected.37 In addition, Securities. particular, the Commission finds that such rewards must not be Violations of these Rules will be the proposed rule change is consistent disproportionate to the services subject to the fine schedule in Rule with: (1) Section 6(b)(5) of the Act,32 in provided.38 476A.29 that it is designed to promote just and In considering NYSE Amex’s proposal equitable principles of trade, to remove to permit trading of Nasdaq Securities T. Amendment No. 2 impediments to and perfect the on a UTP basis based on the new market In Amendment No. 2, the Exchange mechanism of a free and open market model trading rules used by NYSE and eliminated proposed Rules 513– and and a national market system and, in NYSE Amex for their listed equity 514–NYSE Amex Equities, regarding general, to protect investors and the securities, we have considered whether prohibitions on proprietary trading public interest; (2) Section 11A(a)(1) of the rewards granted to DMMs in Nasdaq ahead of customer orders, from the the Act,33 in that it seeks to ensure the Securities are commensurate with their proposed MRVP. Also in Amendment economically efficient execution of obligations. The proposed obligations No. 2, the Exchange clarified that it has securities transactions and fair and benefits of DMMs in Nasdaq received interpretive guidance from competition among brokers and dealers Securities closely track those applicable FINRA regarding OATS recording and and among exchange markets; and (3) to DMMs in listed equities, which the reporting obligations for Exchange Floor Section 12(f) of the Act,34 which Commission has approved on a pilot brokers.30 governs the trading of securities basis. Proposed Rule 509—NYSE Amex pursuant to UTP consistent with the Equities requires a DMM Unit registered U. Amendment No. 3 maintenance of fair and orderly markets, in one or more Nasdaq Securities to In Amendment No. 3, the Exchange the protection of investors and the comply with all rules that govern DMM revised the proposal to: (1) Clarify that, public interest, and the impact of conduct or trading (subject to a few until the implementation of its ‘‘trading- extending the existing markets for such modifications, discussed below), in-shares,’’ odd-lot orders in Nasdaq securities. including Rule 104—NYSE Amex Securities that are received by the Under this proposal, Nasdaq Equities (‘‘Dealings and Responsibilities Exchange prior to the opening of trading Securities will trade on the Exchange of DMMs’’), which sets forth the in those securities on the Exchange will pursuant to rules governing the trading obligations of DMMs for Exchange-listed be held and will not be executed until of Exchange-listed securities that securities. Thus, a DMM in Nasdaq the first round-lot transaction in each previously have been approved by the Securities would have an affirmative particular security; and (2) clarifying Commission.35 NYSE Amex is making obligation to engage in a course of that trading in Nasdaq Securities will reopen following a trading halt, 31 In approving this proposed rule change, the 36 See Securities Exchange Act Release No. 58845 suspension, or pause in the same Commission notes that it has considered the (October 24, 2008), 73 FR 64379, 64388 (October 29, proposed rule’s impact on efficiency, competition, 2008) (SR–NYSE–2008–46). manner that trading opens at the and capital formation. See 15 U.S.C. 78c(f). 37 See 15 U.S.C. 78f(b)(5). 32 15 U.S.C. 78f(b)(5). 38 See Securities Exchange Act Release No. 58092 29 For individuals, first offenses may be charged 33 15 U.S.C. 78k–1(a)(1). (July 3, 2008), 73 FR 40144, 40148 (July 11, 2008) $500, second offenses may be charged $1,000, and 34 15 U.S.C. 78l(f). (‘‘Market makers can play an important role in subsequent offenses may be charged $2,500. For 35 See Securities Exchange Act Releases No. providing liquidity to the market, and an exchange member firms, first offenses may be charged $1,000, 58705 (October 1, 2008), 73 FR 58995 (October 8, can appropriately reward them for that as well as second offenses may be charged $2,500, and 2008) (SR–Amex–2008–63) and 59022 (November the services they provide to the exchange’s market, subsequent offenses may be charged $5,000. 26, 2008), 73 FR 73683 (December 3, 2008) (SR– so long as the rewards are not disproportionate to 30 See supra note 28. NYSEALTR–2008–10). the services provided.’’) (citation omitted).

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dealings for its own account to assist in After careful consideration, the The Nasdaq Securities Liaison the maintenance of a fair and orderly Commission finds that the proposed Committee will assign one or more SLPs market insofar as reasonably rules relating to DMM benefits and to Nasdaq Securities for trading on the practicable.39 In addition, a DMM in duties in trading Nasdaq Securities on Exchange. NYSE Amex Equities Nasdaq Securities would be required to the Exchange pursuant to UTP are members and member organizations facilitate trading (including supplying consistent with the Act. We note that may apply to be SLPs in Nasdaq liquidity as needed), during re-openings this proposal is very similar to the Securities and will be eligible for the following a trading halt, when a ‘‘gap’’ previously-approved new market model assignment of Nasdaq Securities in quote procedure is being used, and pilot program currently operated by accordance with applicable NYSE Amex when a manual block trade is being NYSE and NYSE Amex in listed Equities Rules.48 Like their counterparts executed.40 Similarly, pursuant to securities (particularly with respect to in listed equities, SLPs in Nasdaq Proposed Rule 509—NYSE Amex DMM obligations and benefits).46 In Securities will not be required to have Equities, the rules which grant benefits, addition, like the new market model, a presence on the Trading Floor, and such as parity with Floor broker and this proposal is subject to a pilot most will operate remotely. Therefore, customer interest 41 and the CCS, to program scheduled to end on September the Exchange has concluded that the DMMs would be applicable to DMMs in 30, 2010. Finally, the Commission limitations in place regarding Nasdaq Securities. believes that differences between the assignment of ETFs and their As discussed above,42 the obligations proposed rules for DMMs in Nasdaq component securities to DMM Units 49 proposed for DMMs in Nasdaq Securities and those in effect for listed are unnecessary for SLPs. Securities are slightly different that securities on NYSE and NYSE Amex are The Commission finds that this aspect those that apply to Exchange DMMs and reasonable and consistent with the Act. of the proposal is consistent with the NYSE DMMs in listed securities. First, While DMMs are not responsible for Act. These proposed rules are in lieu of the tiered quoting requirement opening and closing auctions, the DMM substantially similar to existing rules for (5% and 10%) currently in place for quoting obligation is 10% in all the assignment of securities to DMMs DMMs in listed securities, DMMs in securities, compared to 5% in more and SLPs in listed equities on NYSE and Nasdaq Securities would be required to active securities and 10% in less active NYSE Amex that we have previously maintain a bid or offer at the NBB or securities for DMMs in listed equities. approved.50 NBO in each assigned Nasdaq Security Moreover, we note that the quoting 2. QQQ and Component Securities an average of at least 10% of the time obligation for Nasdaq Securities would during the regular business hours of the apply to each assigned Nasdaq Security, As part of this proposed rule change, Exchange for each calendar month. As rather than to the aggregated average of NYSE Amex proposes requirements clarified in Amendment No. 3, DMM all the DMM’s more-active or all the governing the assignment of the QQQs 51 Units will be required to maintain a DMM’s less-active assigned securities, and its component securities. Under continuous two-sided quote with as is the case for DMMs in listed proposed Rule 504—NYSE Amex reasonable size in their registered securities. Finally, the delay in Equities, a DMM Unit may be registered Nasdaq Securities. Second, Depth providing depth guidelines and in both the QQQs and a component Guidelines and PPPs, which serve as implementing PPPs will allow the security or securities provided that, at guidelines that identify the price at or Exchange to obtain trading data for the time of assignment, no single before which a DMM Unit is expected Nasdaq Securities to determine where component in which the DMM Unit is to re-enter the market after effecting a the levels should be set, and appears to registered exceeds 10% of the index or Conditional Transaction,43 similar to be of reasonable duration. In light of the portfolio underlying the QQQs, and all those applicable to listed securities on foregoing, the Commission believes that components in which the DMM Unit is NYSE Amex,44 would apply to DMMs in the proposed rules regarding DMM registered do not in the aggregate exceed Nasdaq Securities, but would not be benefits and obligations are consistent 20% of the index or portfolio 52 operative until 18 weeks after the with the Act. underlying the QQQs. The Exchange approval of the proposed rule change by will review its rules governing the the Commission in order to give the B. Nasdaq Securities Assignments allocation of the QQQs and component Exchange time to develop and phase in 1. DMMs and SLP Assignments securities in the event that its market appropriate guidelines for Nasdaq share of the Nasdaq Securities that it Securities. Finally, because the The Exchange’s Nasdaq Securities trades exceeds 10% of the consolidated proposed rules do not provide for Liaison Committee will assign Nasdaq Tape C aggregate average daily trading opening and closing auctions in Nasdaq Securities to DMM Units for trading on volume for these securities. In addition, Securities, DMMs in Nasdaq Securities the Exchange. No more than one DMM would not be responsible for facilitating Unit will be assigned to any Nasdaq 48 See Notice, supra note 3, 75 FR at 20405. openings and closings, as DMMs in Security and a member organization 49 See proposed Rule 504(b)(5)—NYSE Amex listed equities are.45 will not be permitted to be registered as Equities. both the DMM Unit and an SLP for the 50 See, e.g., Securities Exchange Act Releases No. 58845 (October 24, 2008), 73 FR 64379 (October 29, 39 same Nasdaq Security. Existing NYSE See Rule 104(a)—NYSE Amex Equities. 2008) (SR–NYSE–2008–46); and 58877 (October 29, 40 See Rule 104(a)(2), (4), and (5)—NYSE Amex Amex Equities DMM Units will be 2008), 73 FR 65904 (November 6, 2008) (SR–NYSE– Equities. automatically eligible for the assignment 2008–108). 41 See Rule 72(c)—NYSE Amex Equities. of Nasdaq Securities, so long as they 51 See Notice, supra note 3, 75 FR at 20403–05. 42 See supra notes 18–19 and accompanying text. qualify in accordance with the 52 Proposed Rule 504—NYSE Amex Equities also 43 The term ‘‘Conditional Transaction’’ is defined applicable NYSE Amex Equities rules.47 requires the DMM Unit registered in the QQQs to under Rule 104(h)(i) as ‘‘a DMM’s transaction in a calculate, monitor, and report these components security that establishes or increases a position and and percentages on a monthly basis. If these levels reaches across the market to trade as the contra-side and closing in Nasdaq Securities, a DMM would be are exceeded, the DMM Unit will be required to to the Exchange published bid or offer.’’ responsible for facilitating openings and closings in report this to the Exchange as soon as possible. The 44 See Rules 104(f)(ii)—and (iii)—NYSE Amex its assigned securities. Exchange also represented that it will calculate and Equities. 46 See Securities Exchange Act Release No. 58845, monitor these levels and report them to the Nasdaq 45 However, the Exchange has represented that, if supra note 36, at 64387–89. Liaison Committee. See Notice, supra note 3, 75 FR it were to amend its rules to provide for openings 47 See supra note 7 and accompanying text. at 20403.

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the Exchange will also require the DMM Amex-listed securities, as well as Proposed Rule 516—NYSE Amex Unit to have policies and procedures to Nasdaq Securities, could trade all these Equities eliminates duplicative detect and deter violations of the Act securities at the same post. However, reporting by exempting from the including manipulation, front-running, NYSE Amex-listed and/or traded Exchange’s audit trail provisions a and wash sales.53 securities, such as Nasdaq Securities, member or member organization that is The Commission finds that the would be assigned to specific panels. a FINRA member subject to OATS proposal relating to the assignment of The DMM Unit would be required to reporting. This exception is designed to QQQs and its component securities is commit staff to trade NYSE-listed spare members and member consistent with Section 6(b)(5) of the securities that are separate from the staff organizations that wish to trade Nasdaq 54 Act. The Commission notes that the committed to trade NYSE Amex-listed Securities on multiple markets current proposal applies to only one or traded securities at any time during (including the Exchange) the ETF, the QQQs, which the Exchange has the trading day. The Commission unnecessary expense and/or delay represented meets the composition and believes that these arrangements are associated with converting to OATS- concentration measures to be classified reasonable and consistent with the Act. compliant systems.58 Notwithstanding as a broad-based ETF.55 The that exception, a Floor broker that Commission believes that, when the D. Limits on Proprietary Trading By receives an order in a Nasdaq Security securities underlying an ETF consist of Members Holding Unexecuted Orders in a number of liquid and well-capitalized Nasdaq Securities from another member must comply with the Exchange’s audit trail requirements, stocks, the likelihood that a market Proposed Rules 513— and 514— regardless of FINRA membership status participant will be able to manipulate NYSE Amex Equities provide that a and the applicability of an OATS the price of the ETF is reduced. In member firm handling an unexecuted reporting obligation. The Exchange has addition, the Commission notes that the customer order in a Nasdaq Security represented that it will have full access Exchange will require the DMM Unit in may not execute a proprietary trade for the QQQs to implement policies and to a complete audit trail and there will that security at a price that would 59 procedures to detect and deter satisfy the customer’s order, without be no gap in regulatory oversight. inappropriate access to information executing the customer’s order at that F. Trading of New Derivative Securities about pending block trades from other price. The Commission believes that Products business units of the DMM in the these proposed rules appear reasonably component securities, potential front- designed to protect customer orders, The Exchange’s proposed rules running, manipulation, intentional and thus should benefit investors and governing the trading of new derivative wash sales, and of other violations of the public interest. These rules are securities products pursuant to Rule Section 9 of the Act.56 The Commission substantially similar to existing FINRA 19b–4(e) under the Act 60 are based on also notes that the DMM will be rules and interpretations that prohibit similar rules adopted by other national required to conduct surveillance to trading ahead of customer orders,57 and securities exchanges.61 The Commission detect patterns of trading that are thus are consistent with the Act. believes that proposed Rule 510(d)— indicative of these violations. NYSE Amex Equities is reasonably E. Reporting and Recordkeeping C. Trading Posts for Nasdaq Securities designed to prevent trading in new The Commission finds that the The Exchange proposes to amend derivative securities products when proposed audit trail requirements are transparency is impaired. In addition, Rule 103B—NYSE Amex Equities to consistent with the Act. Generally, the permit Exchange-listed securities and proposed Rule 510(e)—NYSE Amex proposed rules subject members and Equities requires that the Exchange Nasdaq Securities to trade on posts member organizations trading Nasdaq throughout the Trading Floor. Under the enter into a comprehensive surveillance Securities on the Exchange to the sharing agreement (‘‘CSSA’’) with proposed rule, a DMM Unit that is Exchange’s audit trail requirements. registered to trade NYSE and NYSE markets trading components of the Most of the Exchange’s members and index or portfolio on which the new member organizations also are FINRA 53 With respect to the potential for wash sales, the derivative securities product is based to Exchange has represented that virtually all DMM members. FINRA requires all trades in the same extent as the listing exchange’s interest is entered through its algorithmic trading Nasdaq-listed securities by its members, rules require the listing market to enter system (‘‘SAPI’’), and that the SAPI prevents trading regardless of the market, to be reported into a CSSA with such markets. This interest of the DMM Unit from executing against its to OATS. Some members and member own quotes or its other trading interest on the provision should assist the Exchange in Exchange. While a DMM Unit could enter a organizations may wish to enter and/or fulfilling its regulatory obligations proprietary order in one of its assigned securities execute orders in Nasdaq Securities on under Section 19(g)(1) of the Act.62 through a system other than the SAPI, DMM Units both the Exchange and other markets, are required to have policies and procedures in which would require them to comply place that are reasonably designed to prevent 58 The Exchange states that, although OATS violations of Exchange rules and the federal with the Exchange’s audit trail contains substantially the same order information securities laws, including the prohibition on wash requirements and OATS. Additionally, as the Exchange’s electronic order tracking system sales pursuant to Section 9 of the Act, 15 U.S.C. 78i. because Nasdaq-listed securities have (‘‘OTS’’) and the Exchange’s Front-End System 54 15 U.S.C. 78f(b)(5). Capture (‘‘FESC’’), OATS data are in a different not previously traded on the Exchange, format from the data recorded by OTS and FESC, 55 The Commission has previously approved side- some members and member by-side trading and integrated market-making for and the systems are not directly compatible. See broad-based ETFs and related options, in part organizations, particularly Floor brokers Notice, supra note 3, 75 FR at 20410–11. because the individual components of broad-based that have previously only conducted 59 See Notice, supra note 3, 75 FR at 20411. ETFs are sufficiently liquid and well-capitalized, transactions in Exchange-listed 60 17 CFR 240.19b–4(e). and the composition of the ETF as a whole does not securities, do not have OATS-compliant 61 See, e.g., Securities Exchange Act Release No. focus on one security or group of securities. See 57448 (March 6, 2008), 73 FR 13597 (March 13, Securities Exchange Act Release No. 46213 (July 16, systems and procedures. 2008) (SR–NSX–2008–05) (order approving NSX 2002), 67 FR 48232 (July 23, 2002) (SR–Amex– Rule 15.9); Securities Exchange Act Release No. 2002–21). 57 See FINRA/NASD Interpretive Material (IM) 59663 (March 31, 2009), 74 FR 15552 (April 6, 56 Such policies and procedures will have to meet 2110–2 (Trading Ahead of Customer Limit Order) 2009) (SR–Nasdaq–2009–018) (notice of filing and the requirements of Rule 98–NYSE Amex Equities. and FINRA/NASD Rule 2111 (Trading Ahead of immediate effectiveness for Nasdaq Rule 5740). See Notice, supra note 3, 75 FR at 20405 n.16. Customer Market Orders). 62 15 U.S.C. 78s(g)(1).

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G. Additions to the MRVP Commission finds that good cause information that you wish to make The Commission further finds that the exists, consistent with Section 19(b) of available publicly. All submissions 65 proposal is consistent with Sections the Act, for approving the proposed should refer to File Number SR– 6(b)(1) and 6(b)(6) of the Act,63 which rule change, as modified by Amendment NYSEAmex–2010–31 and should be require that the rules of an exchange Nos. 1, 2, and 3 prior to the thirtieth day submitted on or before August 5, 2010. enforce compliance with, and provide after publication of notice of filing of V. Conclusion appropriate discipline for, violations of Amendment Nos. 2 and No. 3 in the Federal Register. Commission and Exchange rules. These It is therefore ordered, pursuant to proposed changes to the MRVP should IV. Solicitation of Comments Section 19(b)(2) of the Act 66 and Rule strengthen the Exchange’s ability to 67 Interested persons are invited to 19d–1(c)(2) under the Act, that the carry out its oversight and enforcement submit written data, views, and proposed rule change, as modified by responsibilities as a self-regulatory arguments concerning Amendment Nos. Amendment Nos. 1, 2 and 3 thereto organization in cases where full 2 and No. 3, including whether those (SR–NYSEAmex–2010–31), be, and it disciplinary proceedings are unsuitable amendments are consistent with the hereby is, approved and declared in view of the minor nature of the Act. Comments may be submitted by particular violation. Therefore, the effective. any of the following methods: Commission finds that the proposal is For the Commission, by the Division of consistent with the public interest, the Electronic Comments Trading and Markets, pursuant to delegated 68 protection of investors, or otherwise in • Use the Commission’s Internet authority. furtherance of the purposes of the Act, comment form (http://www.sec.gov/ Florence E. Harmon, as required by Rule 19d–1(c)(2) under rules/sro.shtml); or Deputy Secretary. the Act,64 which governs minor rule • Send an e-mail to rule- [FR Doc. 2010–17274 Filed 7–14–10; 8:45 am] violation plans. [email protected]. Please include File BILLING CODE 8010–01–P In approving this proposed rule Number SR–NYSEAmex–2010–31 on change, the Commission in no way the subject line. minimizes the importance of compliance with Exchange rules and all Paper Comments SECURITIES AND EXCHANGE COMMISSION other rules subject to the imposition of • Send paper comments in triplicate fines under the MRVP. The Commission to Elizabeth M. Murphy, Secretary, believes that the violation of any self- Securities and Exchange Commission, [File No. 500–1] regulatory organization’s rules, as well 100 F Street, NE., Washington, DC as Commission rules, is a serious matter. 20549–1090. Fineline Holdings, Inc., Order of Suspension of Trading However, the MRVP provides a All submissions should refer to File reasonable means of addressing rule Number SR–NYSEAmex–2010–31. This July 13, 2010. violations that do not rise to the level of file number should be included on the requiring formal disciplinary subject line if e-mail is used. To help the It appears to the Securities and proceedings, while providing greater Commission process and review your Exchange Commission that there is a flexibility in handling certain violations. comments more efficiently, please use lack of current and accurate information The Commission expects that the only one method. The Commission will concerning the securities of Fineline Exchange will continue to conduct post all comments on the Commission’s Holdings, Inc. because it has not filed surveillance with due diligence and Internet Web site (http://www.sec.gov/ any periodic reports since the period make a determination based on its rules/sro.shtml). Copies of the ended September 30, 2004. findings, on a case-by-case basis, submission, all subsequent whether a fine of more or less than the The Commission is of the opinion that amendments, all written statements the public interest and the protection of recommended amount is appropriate for with respect to the proposed rule a violation under the MRVP or whether investors require a suspension of trading change that are filed with the in the securities of the above-listed a violation requires formal disciplinary Commission, and all written action under NYSE Amex Rule 476. company. Therefore, it is ordered, communications relating to the pursuant to Section 12(k) of the H. Accelerated Approval proposed rule change between the Securities Exchange Act of 1934, that Commission and any person, other than Amendment No. 2 did not materially trading in the securities of the above- alter the proposal, which had already those that may be withheld from the public in accordance with the listed company is suspended for the undergone a full notice period, during period from 9:30 a.m. EDT on July 13, which no comments were received. In provisions of 5 U.S.C. 552, will be available for Web site viewing and 2010, through 11:59 p.m. EDT on July Amendment No. 2, the Exchange 26, 2010. revised the proposal to remove two printing in the Commission’s Public rules from the Exchange’s MRVP, and Reference Room, 100 F Street, NE., By the Commission. provided clarification on FINRA’s Washington, DC 20549, on official Florence E. Harmon, guidance regarding the OATS recording business days between the hours of Deputy Secretary. 10 a.m. and 3 p.m. Copies of the filing and recordkeeping obligations for NYSE [FR Doc. 2010–17359 Filed 7–13–10; 11:15 am] Amex Floor brokers. In Amendment No. also will be available for inspection and BILLING CODE 8010–01–P 3, the Exchange revised the proposal to copying at the principal office of the provide that LRPs would not be used for Exchange. All comments received will trading in Nasdaq Securities, and made be posted without change; the certain minor changes to the proposal Commission does not edit personal that do not raise material issues. The identifying information from submissions. You should submit only 66 15 U.S.C. 78s(b)(2). 63 15 U.S.C. 78f(b)(1) and 78f(b)(6). 67 17 CFR 240.19d–1(c)(2). 64 17 CFR 240.19d–1(c)(2). 65 15 U.S.C. 78s(b). 68 17 CFR 200.30–3(a)(12) and 200.30–3(a)(44).

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DEPARTMENT OF STATE DEPARTMENT OF STATE SUMMARY: This notice announces that the Office of the United States Trade [Public Notice: 7089] [Public Notice: 7088] Representative (USTR) will receive Culturally Significant Objects Imported Culturally Significant Objects Imported petitions to modify the list of products for Exhibition Determinations: ‘‘The for Exhibition Determinations: ‘‘The Art that are eligible for duty-free treatment World of Khubilai Khan: Chinese Art in of Ancient Greek Theater’’ under the Generalized System of the Yuan Dynasty’’ Preferences (GSP) program. This notice SUMMARY: Notice is hereby given of the determines that the deadline for ACTION: Notice, correction. following determinations: Pursuant to submission of product petitions, other the authority vested in me by the Act of than those requesting competitive need SUMMARY: On April 15, 2010, notice was October 19, 1965 (79 Stat. 985; 22 U.S.C. limitation (CNL) waivers, is 5 p.m., published on pages 19668–19669 of the 2459), Executive Order 12047 of March Tuesday, August 3, 2010. The deadline Federal Register (volume 75, number 27, 1978, the Foreign Affairs Reform and for submission of petitions requesting 72) of determination made by the Restructuring Act of 1998 (112 Stat. CNL waivers is 5 p.m., Tuesday, Department of State pertaining to the 2681, et seq.; 22 U.S.C. 6501 note, et November 16, 2010. The lists of product ‘‘ exhibit From Xanadu to Dadu: The seq.), Delegation of Authority No. 234 of petitions accepted for review will be ’’ World of Khubilai Khan. The reference October 1, 1999, and Delegation of announced in the Federal Register at a notice is corrected to accommodate Authority No. 236–3 of August 28, 2000, later date. additional objects to be included in the I hereby determine that the objects to be FOR FURTHER INFORMATION CONTACT: exhibition, and the exhibit name is now included in the exhibition ‘‘The Art of ‘‘ Tameka Cooper, GSP Program, Office of titled, The World of Khubilai Khan: Ancient Greek Theater,’’ imported from ’’ the United States Trade Representative, Chinese Art in the Yuan Dynasty. abroad for temporary exhibition within 1724 F Street, NW., Room 601, Pursuant to the authority vested in me the United States, are of cultural Washington, DC 20508. The telephone by the Act of October 19, 1965 (79 Stat. significance. The objects are imported number is (202) 395–6971, the fax 985; 22 U.S.C. 2459), Executive Order pursuant to loan agreements with the number is (202) 395–2961, and the e- 12047 of March 27, 1978, the Foreign foreign owners or custodians. I also mail address is Affairs Reform and Restructuring Act of determine that the exhibition or display [email protected]. 1998 (112 Stat. 2681, et seq.; 22 U.S.C. of the exhibit objects at the J. Paul Getty 6501 note, et seq.), Delegation of Museum, Pacific Palisades, CA, from on Public versions of the product and Authority No. 234 of October 1, 1999, or about August 26, 2010, until on or CNL waiver petitions submitted for the and Delegation of Authority No. 236–3 about January 3, 2011, and at possible August 3, 2010, deadline will be of August 28, 2000, I hereby determine additional exhibitions or venues yet to available in docket USTR–2010–0017 at that the additional objects to be be determined, is in the national http://www.regulations.gov. Public ‘‘ included in the exhibition The World interest. I have ordered that Public versions of all documents relating to of Khubilai Khan: Chinese Art in the Notice of these Determinations be this review will be made available for ’’ Yuan Dynasty, imported from abroad published in the Federal Register. public viewing at http:// for temporary exhibition within the www.regulations.gov upon completion FOR FURTHER INFORMATION CONTACT: For United States, are of cultural of processing and no later than significance. The additional objects are further information, including a list of the exhibit objects, contact Julie approximately two weeks after the imported pursuant to loan agreements relevant due date. with the foreign owners or custodians. Simpson, Attorney-Adviser, Office of I also determine that the exhibition or the Legal Adviser, U.S. Department of I. 2010 Annual GSP Review display of the additional exhibit objects State (telephone: 202–632–6467). The The GSP regulations (15 CFR part at The Metropolitan Museum of Art, mailing address is U.S. Department of 2007) provide the timetable for New York, NY, from on or about State, SA–5, L/PD, Fifth Floor (Suite conducting an annual review, unless September 28, 2010, until on or about 5H03), Washington, DC 20522–0505. otherwise specified by Federal Register January 2, 2011, and at possible Dated: July 9, 2010. notice. Notice is hereby given that, in additional exhibitions or venues yet to Ann Stock, order to be considered in the 2010 be determined, is in the national Assistant Secretary for Educational and Annual GSP Product Review, all interest. I have ordered that Public Cultural Affairs, Bureau of Educational and petitions to modify the list of articles Notice of these Determinations be Cultural Affairs, Department of State. eligible for duty-free treatment under published in the Federal Register. [FR Doc. 2010–17311 Filed 7–14–10; 8:45 am] GSP must be received by the GSP FOR FURTHER INFORMATION CONTACT: BILLING CODE 4710–05–P For Subcommittee of the Trade Policy Staff further information, including a list of Committee no later than 5 p.m. on the exhibit objects, contact Julie Tuesday, August 3, 2010. Petitions Simpson, Attorney-Adviser, Office of OFFICE OF THE UNITED STATES requesting CNL waivers must be the Legal Adviser, U.S. Department of TRADE REPRESENTATIVE received by the GSP Subcommittee of State (telephone: 202–632–6467). The the Trade Policy Staff Committee no mailing address is U.S. Department of Generalized System of Preferences later than 5 p.m. on Tuesday, November State, SA–5, L/PD, Fifth Floor (Suite (GSP): Notice Announcing the 16, 2010, in order to be considered in 5H03), Washington, DC 20522–0505. Initiation of the 2010 Annual GSP the 2010 Annual Review. Petitions Dated: July 9, 2010. Product Review and Deadlines for submitted after the respective deadlines Ann Stock, Filing Petitions will not be considered for review. The Assistant Secretary for Educational and AGENCY: Office of the United States deadline for receipt of petitions for the Cultural Affairs, Bureau of Educational and Trade Representative. Country Practices Eligibility Review and Cultural Affairs, Department of State. related public hearing date will be ACTION: Notice and solicitation for [FR Doc. 2010–17308 Filed 7–14–10; 8:45 am] announced in the Federal Register at a public petitions. BILLING CODE 4710–05–P later date.

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GSP Product Review Petitions 2007.1. Submissions that do not provide Petitions submitted in response to this Interested parties, including foreign the information required by section notice must include on the first page (if governments, may submit petitions to: 2007.1 of the GSP regulations will not provided in an attachment, or at the (1) Designate additional articles as be accepted for review, except upon a beginning of the submission, if not eligible for duty-free treatment under detailed showing in the submission that provided in an attachment), the GSP, including to designate articles as the petitioner made a good faith effort following text (in bold and underlined): eligible for GSP only for countries to obtain the information required. Any (1) ‘‘2010 GSP Annual Review’’; (2) the designated as least-developed person or party making a submission is eight-digit HTSUS subheading number beneficiary developing countries, or strongly advised to review the GSP in which the product is classified (3) the only for countries designated as regulations. An outline of the requested action; and (4) if applicable, beneficiary sub-Saharan African information required in product the beneficiary developing country. countries under the African Growth and petitions is included in the U.S. Each submitter will receive a Opportunity Act (AGOA); (2) withdraw, Generalized System of Preferences submission tracking number upon suspend or limit the application of duty- Guidebook, available at: http:// completion of the submissions free treatment accorded under the GSP www.ustr.gov/trade-topics/trade- procedure at http:// with respect to any article, either for all development/preference-programs/ www.regulations.gov. The tracking beneficiary developing countries, least- generalized-system-preference-gsp/gsp- number will be the submitter’s developed beneficiary developing program-inf. confirmation that the submission was countries or beneficiary sub-Saharan To ensure their timely and received, and it should be kept for the African countries, or for any of these expeditious receipt and consideration, submitter’s records. USTR is not able to countries individually; (3) waive the product petitions provided in response provide technical assistance for the ‘‘competitive need limitations’’ for to this notice, with the exception of website. Documents not submitted in individual beneficiary developing business confidential submissions, must accordance with these instructions may countries with respect to specific GSP- be submitted online at http:// not be considered in this review. If eligible articles (these limits do not www.regulations.gov, docket number unable to provide submissions as apply to either least-developed USTR–2010–0017. Hand-delivered requested, please contact the GSP beneficiary developing countries or submissions will not be accepted. Program to arrange for an alternative AGOA beneficiary sub-Saharan African Submissions must be submitted in method of transmission. English to the Chairman of the GSP countries); and (4) otherwise modify III. Business Confidential Comments GSP coverage. Subcommittee, Trade Policy Staff Committee, by the applicable deadlines A person requesting that information Petitions requesting CNL waivers for contained in a comment submitted by GSP-eligible articles from beneficiary set forth in this notice. To make a submission using http:// that person be treated as confidential developing countries that exceed the www.regulations.gov, enter docket business information must certify that CNLs in 2010 must be filed in the 2010 number USTR–2010–0017 on the home such information is business Annual Review. In order to allow page and click ‘‘go.’’ The site will list all confidential and would not customarily petitioners an opportunity to review documents associated with this docket. be released to the public by the additional 2010 U.S. import statistics, Find a reference to this notice by submitter. Confidential business these petitions may be filed after selecting ‘‘Notice’’ under ‘‘Document information must be clearly designated Tuesday, August 3, 2010, but must be Type’’ on the left side of the search as such, the submission must be marked received on or before the Tuesday, results page, and click on the link ‘‘BUSINESS CONFIDENTIAL’’ at the top November 16, 2010 deadline described entitled ‘‘Send a Comment or and bottom of the cover page and each above in order to be considered in the Submission.’’ The http:// succeeding page, and the submission 2010 Annual Review. Public versions of www.regulations.gov website offers the should indicate, via brackets, the these petitions will be made available option of providing comments by filling specific information that is confidential. for public inspection at http:// in a ‘‘General Comments’’ field or by Additionally, ‘‘Business Confidential’’ www.regulations.gov after the November attaching a document. Submissions must be included in the ‘‘Type Comment 16, 2010, deadline. must be in English, with the total & Upload File’’ field. Anyone submitting II. Public Comments submission not to exceed 30 single- a comment containing business spaced standard letter-size pages in 12- confidential information must also Requirements for Submissions point type, including attachments. Any submit as a separate submission a non- All submissions for the GSP Product data attachments to the submission confidential version of the confidential Review must conform to the GSP should be included in the same file as submission, indicating where regulations set forth at 15 CFR part the submission itself, and not as confidential information has been 2007, except as modified below. These separate files. redacted. The non-confidential version regulations are available on the USTR Given the detailed nature of the will be placed in the docket and open Web site at http://www.ustr.gov/trade- information sought by the GSP to public inspection. topics/trade-development/preference- Subcommittee, it is expected that most programs/generalized-system- comments and submissions will be IV. Public Viewing of Review preference-gsp/gsp-program-inf. provided in an attached document. Submissions As specified in 15 CFR 2007.1, all When attaching a document, type: (1) Submissions in response to this product petitions must include a The eight-digit HTSUS subheading notice, except for information granted detailed description of the product and number, and (2) ‘‘See attached’’ in the ‘‘business confidential’’ status under 15 the 8-digit subheading of the ‘‘General Comments’’ field on the online CFR 2003.6, will be available for public Harmonized Tariff Schedule of the submission form, and indicate on the viewing pursuant to 15 CFR 2007.6 at United States (HTSUS) under which the attachment that the document is a http://www.regulations.gov upon product is classified. Additional ‘‘Product Review Petition’’ for [HTSUS completion of processing and no later information requirements for product Subheading Number], [Product Name], than approximately two weeks after the petitions are also specified in 15 CFR and, if pertinent, [Country]. relevant due date. Petitions submitted

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by the August 3, 2010 deadline may be DEPARTMENT OF TRANSPORTATION Annual Estimated Burden Hours: 10 viewed by entering the docket number hours. USTR–2010–0017 in the search field at: Maritime Administration ADDRESSES: Send comments to the http://www.regulations.gov. Office of Information and Regulatory Reports, Forms and Recordkeeping Affairs, Office of Management and Seth Vaughn, Requirements Agency Information Budget, 725 17th Street, NW., Director, GSP Program; Chairman, GSP Collection Activity Under OMB Review Subcommittee of the Trade Policy Staff Washington, DC 20503, Attention: Committee; Office of the U.S. Trade AGENCY: Maritime Administration, DOT. Maritime Administration Desk Officer. Representative. ACTION: Notice and request for Comments are invited on: Whether [FR Doc. 2010–17221 Filed 7–14–10; 8:45 am] comments. the proposed collection of information BILLING CODE P is necessary for the proper performance SUMMARY: In compliance with the of the functions of the agency, including Paperwork Reduction Act of 1995 (44 whether the information will have OFFICE OF THE UNITED STATES U.S.C. 3501 et seq.), this notice practical utility; the accuracy of the TRADE REPRESENTATIVE announces that the Information agency’s estimate of the burden of the Collection abstracted below has been proposed information collection; ways Notice of Meeting of the Industry Trade forwarded to the Office of Management to enhance the quality, utility and Advisory Committee on Small and and Budget (OMB) for review and clarity of the information to be Minority Business (ITAC–11) approval. The nature of the information collected; and ways to minimize the collection is described as well as its burden of the collection of information AGENCY: Office of the United States expected burden. The Federal Register on respondents, including the use of Trade Representative. notice with a 60-day comment period automated collection techniques or ACTION: Notice of an opened meeting. soliciting comments on the following other forms of information technology. collection of information was published A comment to OMB is best assured of SUMMARY: The Industry Trade Advisory on April 16, 2010 and expired on June having its full effect, if OMB receives it Committee on Small and Minority 15, 2010. No comments were received. within 30 days of publication. Business (ITAC–11) will hold a meeting DATES: Comments must be submitted on (Authority: 49 CFR 1.66) on Monday, August 9, 2010, from 11 or before August 16, 2010. a.m. to 4 p.m. The meeting will be Issued in Washington, DC on July 8, 2010. FOR FURTHER INFORMATION CONTACT: opened to the public from 11 a.m. to 4 Murray Bloom, Anne Dougherty, Maritime p.m. Administration, 1200 New Jersey Acting Secretary, Maritime Administration. DATES: The meeting is scheduled for Avenue, SE., Washington, DC 20590. [FR Doc. 2010–17246 Filed 7–14–10; 8:45 am] August 9, 2010, unless otherwise Telephone: 202–366–5469; or E–MAIL: BILLING CODE 4910–81–P notified. [email protected]. ADDRESSES: The meeting will be held at SUPPLEMENTARY INFORMATION: Maritime DEPARTMENT OF TRANSPORTATION the Big Sky Resort, located at 1 Lone Administration. Mountain Trail, Big Sky, Montana Title: Information to Determine Surface Transportation Board 59716. Seamen’s Re-employment Rights— [Docket No. FD 35384] FOR FURTHER INFORMATION CONTACT: National Emergency. Laura Hellstern, DFO for ITAC–11 at OMB Control No.: 2133–0526. US Rail Partners, Ltd. and Blackwell Type of Request: Extension of (202) 482–3222, Department of Northern Gateway Railroad currently approved collection. Commerce, 14th Street and Constitution Company—Continuance in Control Affected Public: U.S. merchant Avenue, NW., Washington, DC 20230. Exemption—Eastern Berks Gateway seamen who have completed designated Railroad Company SUPPLEMENTARY INFORMATION: The national service during a time of Agenda topic to be discussed is: maritime mobilization need and are US Rail Partners, Ltd. (USRP), a —Overview of the Congressional Trade seeking re-employment with a prior noncarrier holding company, and Agenda employer. Blackwell Northern Gateway Railroad —Impact of Upcoming Legislation on Forms: None. Company (BNGR), a Class III carrier, Trade Competitiveness Abstract: This collection is needed in have filed a verified notice of exemption —Free Trade Agreements pending order to implement provisions of the to continue in control of Eastern Berks before Congress (Colombia, Panama Maritime Security Act of 1996. These Gateway Railroad Company (EBGR), and South Korea) provisions grant re-employment rights upon EBGR’s becoming a rail carrier.1 —Generalized System of Preferences and other benefits to certain merchant USRP and BNGR state that the —Mexican Trucking/Retaliation Issue seamen serving aboard vessels used by transaction is expected to be —U.S.-China Trade Issues, including the United States during times of consummated on August 1, 2010. The China Currency, Export Subsidies, national emergencies. The Maritime earliest this transaction may be Indigenous Innovation, IPR, and other Security Act of 1996 establishes the consummated is July 29, 2010, the issues. procedures for obtaining the necessary effective date of the exemption (30 days —Trade Promotion Maritime Administration certification after the exemption was filed). —Export Finance for re-employment rights and other Applicants state that EBGR intends to benefits. file a notice for a modified certificate of Myesha T. Ward, Need and Use of the Information: The public convenience and necessity in Acting Assistant U.S. Trade Representative Maritime Administration will use the STB Finance Docket No. 35383, Eastern for Intergovernmental Affairs and Public information to determine if U.S. civilian Berks Gateway Railroad Company— Engagement. mariners are eligible for re-employment [FR Doc. 2010–17222 Filed 7–14–10; 8:45 am] rights under the Maritime Security Act 1 EBGR is wholly owned by BNGR and indirectly BILLING CODE 3190–W9–P of 1996. controlled by USRP.

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Modified Rail Certificate, wherein EBGR By the Board, Rachel D. Campbell, Provided no formal expression of seeks to lease and operate Director, Office of Proceedings. intent to file an offer of financial approximately 8.6 miles of railroad, Kulunie L. Cannon, assistance (OFA) has been received, known as the Colebrookdale Line, from Clearance Clerk. these exemptions will be effective on Berks County, Pa. [FR Doc. 2010–17252 Filed 7–14–10; 8:45 am] August 14, 2010, unless stayed pending reconsideration. Petitions to stay that do USRP currently controls through BILLING CODE 4915–01–P not involve environmental issues and stock ownership two Class III rail formal expressions of intent to file an carriers: BNGR and the Eastern DEPARTMENT OF TRANSPORTATION OFA under 49 CFR 1152.27(c)(2) 2 must Washington Gateway Railroad Company be filed by July 26, 2010.3 Petitions to (EWGR). BNGR operates approximately Surface Transportation Board reopen must be filed by August 4, 2010, 35 miles of rail line between [Docket No. AB 290 (Sub-No. 319X); Docket with the Surface Transportation Board, Wellington, Kan., and Blackwell, Okla. No. AB 1060X] 395 E Street, SW., Washington, DC EWGR operates approximately 114 20423–0001. miles of rail line in the State of Central of Georgia Railroad A copy of any petition filed with the Washington. Company—Discontinuance of Service Board should be sent to applicants’ USRP and BNGR state that: (i) The Exemption—Newton County, GA; representatives: For CGA, Daniel G. railroads will not connect with each Great Walton Railroad Company— Kruger, Norfolk Southern Railway Company, Three Commercial Place, other or any railroads within its Discontinuance of Operations Exemption—Newton County, GA Norfolk, VA 23510; and for GRWR, corporate family, (ii) the transaction is Richard H. Streeter, Barnes & not a part of a series of anticipated Central of Georgia Railroad Company Thornburg, LLP, 750 17th Street, NW., transactions that would connect any of (CGA) 1 and Great Walton Railroad Suite 900, Washington, DC 20006. these railroads with one another or any Company (GRWR) (collectively, If the verified notice contains false or other railroad, and (iii) the transaction applicants) have jointly filed a verified misleading information, the exemptions does not involve a Class I railroad. notice of exemption under 49 CFR part are void ab initio. Therefore, the transaction is exempt 1152 Subpart F—Exempt Board decisions and notices are from the prior approval requirements of Abandonments and Discontinuances of available on our Web site at http:// 49 U.S.C. 11323. See 49 CFR Service for CGA to discontinue service, www.stb.dot.gov. 1180.2(d)(2). and for GRWR to discontinue operating Decided: July 8, 2010. Under 49 U.S.C. 10502(g), the Board rights under a lease, over a 14.90-mile By the Board, Rachel D. Campbell, line of railroad between milepost E may not use its exemption authority to Director, Office of Proceedings. 65.80 at Newton, Ga., and the end of the relieve a rail carrier of its statutory Jeffrey Herzig, line at milepost E 80.70 at Covington, Clearance Clerk. obligation to protect the interests of its Ga., in Newton County, Ga. The line [FR Doc. 2010–17206 Filed 7–14–10; 8:45 am] employees. Section 11326(c), however, traverses United States Postal Service does not provide for labor protection for Zip Codes 30014, 30055 and 30056. BILLING CODE 4915–01–P transactions under sections 11324 and Applicants have certified that: (1) No 11325 that involve only Class III rail local traffic has moved over the line for DEPARTMENT OF TRANSPORTATION carriers. Accordingly, the Board may not at least 2 years; (2) all overhead traffic impose labor protective conditions here, has been rerouted over other lines; (3) Federal Highway Administration because all of the carriers involved are no formal complaint filed by a user of Class III carriers. rail service on the line (or by a State or Notice of Final Federal Agency Actions If the verified notice contains false or local government entity acting on behalf on Proposed Highway in California of such user) regarding cessation of misleading information, the exemption AGENCY: Federal Highway service over the line either is pending is void ab initio. Petitions to revoke the Administration (FHWA), DOT. exemption under 49 U.S.C. 10502(d) with the Surface Transportation Board or with any U.S. District Court or has ACTION: Notice of Limitation on Claims may be filed at any time. The filing of for Judicial Review of Actions by FHWA a petition to revoke will not been decided in favor of complainant within the 2-year period; and (4) the and Other Federal Agencies. automatically stay the transaction. requirements of 49 CFR 1105.12 Petitions for stay must be filed no later SUMMARY: This notice announces actions (newspaper publication) and 49 CFR taken by the California Department of than July 22, 2010 (at least 7 days before 1152.50(d)(1) (notice to governmental the exemption becomes effective). Transportation (Caltrans) pursuant to its agencies) have been met. assigned responsibilities under 23 An original and 10 copies of all As a condition to these exemptions, U.S.C. 327 that are final within the pleadings, referring to Docket No. FD any employee adversely affected by the meaning of 23 U.S.C. 139(l)(1). These 35384, must be filed with the Surface discontinuance of service shall be actions relate to the Interstate 80/San Transportation Board, 395 E Street, SW., protected under Oregon Short Line Pablo Dam Road Interchange project, Washington, DC 20423–0001. In Railroad—Abandonment Portion located between the El Portal Drive and addition, a copy of each pleading must Goshen Branch Between Firth & McBryde Avenue interterchanges Post be served on William C. Sippel, 29 Ammon, in Bingham & Bonneville North Wacker Drive, Suite 920, Chicago, Counties, Idaho, 360 I.C.C. 91 (1979). To 2 Each OFA must be accompanied by the filing IL 60606–2832. address whether this condition fee, which is currently set at $1,500. See 49 CFR adequately protects affected employees, 1002.2 (f)(25). Board decisions and notices are a petition for partial revocation under 3 Because this is a discontinuance proceeding and available on our Web site at http:// 49 U.S.C. 10502(d) must be filed. not an abandonment, trail use/rail banking and www.stb.dot.gov. public use conditions are not appropriate. Likewise, no environmental or historic documentation is Decided: July 12, 2010. 1 CGA is a wholly owned subsidiary of Norfolk required here under 49 CFR 1105.6(c) and 49 CFR Southern Railway Company. 1105.8(b), respectively.

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Miles 3.8 to 5.3), in Contra Costa the freeway and Amador Street, Issued on: July 9, 2010. County, State of California. These providing a safer crossing for Riverside Cindy Vigue, actions grant licenses, permits, and Elementary School children and other Director, State Programs, Federal Highway approvals for the project. pedestrians. The length of the project is Administration, Sacramento, California. DATES: By this notice, the FHWA, on 1.47 miles and the purpose is to [FR Doc. 2010–17240 Filed 7–14–10; 8:45 am] behalf of Caltrans, is advising the public improve traffic operations and bicycle/ BILLING CODE 4910–RY–P of final agency actions subject to 23 pedestrian access. The actions by the U.S.C. 139(l)(1). A claim seeking Federal agencies, and the laws under judicial review of the Federal agency which such actions were taken, are DEPARTMENT OF TRANSPORTATION actions on the highway project will be described in the Initial Study with barred unless the claim is filed on or Negative Declaration/Environmental Federal Highway Administration Assessment for the project, approved on before January 11, 2011. If the Federal Notice of Final Federal Agency Actions law that authorizes judicial review of a February 25, 2010 in the FHWA Finding on Proposed Highway in Idaho claim provides a time period of less of No Significant Impact (FONSI) issued than 180 days for filing such claim, then on February 25, 2010, and in other AGENCY: Federal Highway that shorter time period still applies. documents in the FHWA project Administration (FHWA), DOT. FOR FURTHER INFORMATION CONTACT: For records. The Initial Study with Negative ACTION: Notice of Limitation on Claims Caltrans: Melanie Brent, Chief, Office of Declaration/Environmental Assessment, for Judicial Review of Actions by Environmental Analysis, District 4, 111 FONSI, and other project records are FHWA. Grand Avenue, Oakland, 9 a.m. to 4 available by contacting Caltrans at the p.m., 510–286–5231, address provided above. The FHWA SUMMARY: This notice announces actions [email protected]. FONSI can be viewed and downloaded taken by the FHWA that are final within the meaning of 23 U.S.C. 139(l)(1). The SUPPLEMENTARY INFORMATION: Notice is from the project Web site at http:// www.dot.ca.gov/dist4/envdocs.htm. actions relate to a proposed highway hereby given that Caltrans, pursuant to project, US–95 Garwood to Sagle its assigned responsibilities under 23 This notice applies to all Federal agency decisions as of the issuance date Environmental Study in Bonner and U.S.C. 327, and certain Federal agencies Kootenai Counties in the State of Idaho, have taken final agency actions subject of this notice and all laws under which such actions were taken, including but FHWA–ID–EIS–06–F Federal-Aid to 23 U.S.C. 139(l)(1) by approving the project number NH–5110(141), Idaho I–80/San Pablo Dam Road Interchange not limited to: 1. General: National Environmental Transportation Department Key Number project in the State of California. The 9779. project will reconstruct the I–80/San Policy Act (NEPA) [42 U.S.C. 4321– DATES: By this notice, the FHWA is Pablo Dam Road overcrossing structure, 4351]; Federal-Aid Highway Act [23 advising the public of final agency replacing it with a 6-lane bridge that is U.S.C. 109 and 23 U.S.C. 128]. actions subject to 23 U.S.C. 139(l)(1). A skewed to the north to separate the 2. Air: Clean Air Act [42 U.S.C. 7401– claim seeking judicial review of the Amador Street and eastbound I–80 on- 7671(q)]. Federal agency actions on the highway ramp intersections at San Pablo Dam 3. Wildlife: Endangered Species Act project will be barred unless the claim Road. The bridge design will allow for [16 U.S.C. 1531–1544 and 1536]; Fish is filed on or prior to January 11, 2011. left turns from westbound San Pablo and Wildlife Coordination Act [16 If the Federal law that authorizes Dam Road onto Amador Street, it will U.S.C. 661–667(d)]; Migratory Bird increase the height of the bridge over I– Treaty Act [16 U.S.C. 703–712]. judicial review of a claim provides a 80 to achieve vertical clearance 4. Social and Economic: Civil Rights time period of less than 180 days for standards that are not currently met, Act of 1964 [42 U.S.C. 2000(d)– filing such claim, then that shorter time and will minimize encroachment into 2000(d)(1)]; The Uniform Relocation period still applies. an unstable slope east of the Assistance and Real Property FOR FURTHER INFORMATION CONTACT: For interchange. The El Portal Drive Acquisition Policy Act of 1970, 42 FHWA: Mr. Peter J. Hartman, Division westbound on-ramp will be closed, and U.S.C. Chapter 61 [Pub. L. 91–646] [Pub. Administrator, Federal Highway a new westbound on-ramp built at the L. 100–17]. Administration, 3050 Lake Harbor Lane, location of the I–80/El Portal Drive 5. Water: Clean Water Act [33 U.S.C. Suite 126, Boise, Idaho 83703; overcrossing. A westbound auxiliary 1342]; Safe Drinking Water Act (SDWA) telephone: (208) 334–9180; e-mail: lane will be added between the new El [42 U.S.C. 300(f)–300(j)(6)]. [email protected]. The FHWA Portal Drive on-ramp and the 6. Noise: Noise Control Act of 1972 Idaho Division Office’s normal business westbound San Pablo Dam Road off- [42 U.S.C. 4901 et seq]. hours are 7 a.m. to 4:30 p.m. (Mountain ramp. The McBryde Avenue off-ramp 7. Executive Orders: E.O. 11990 Standard Time). For ITD: Ms. Sue will be closed, and replaced with a new Protection of Wetlands; E.O. 11988 Sullivan, Environmental Section westbound frontage road that will Floodplain Management; E.O. 12898 Manager, Idaho Transportation extend from the San Pablo Dam Road Federal Actions to Address Department, 3311 W. State St., Boise, ID interchange to McBryde Avenue. Environmental Justice in Minority 83703–1129, telephone: (208) 334–8203; Bicycle lanes will be provided on the Populations and Low Income e-mail: [email protected]. shoulders of the San Pablo Dam Road Populations; E.O. 13112 Invasive Normal business hours are 8 a.m. to 5 Overcrossing of I–80. Pedestrian Species. p.m. (Mountain Standard Time). sidewalks will be provided on both (Catalog of Federal Domestic Assistance SUPPLEMENTARY INFORMATION: Notice is sides of the San Pablo Dam Road Program Number 20.205, Highway Planning hereby given that the FHWA has taken overcrossing, and along Amador Street and Construction. The regulations final agency actions subject to 23 U.S.C. within the limits of project construction implementing Executive Order 12372 139(l)(1) by issuing approvals for the near San Pablo Dam Road. An existing regarding intergovernmental consultation on following highway project in the State pedestrian overcrossing of I–80 at Federal programs and activities apply to this of Idaho: US–95 Garwood to Sagle Riverside Avenue will be replaced with program.) Environmental Study, in Bonner and a new structure that extends across both Authority: 23 U.S.C. 139(l)(1). Kootenai Counties. The project will be

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approximately 31.5 miles long Resource Conservation and Recovery subsection (c) of § 1B1.10 (Reduction in extending from Garwood (MP 438.24) to Act of 1976 [42 U.S.C. 6901, et seq.] Term of Imprisonment as a Result of Sagle (MP 469.75) and will upgrade the Social and Economic: Civil Rights Act Amended Guideline Range (Policy existing predominantly two-lane of 1964 [42 U.S.C. 2000(d)–2000(d)(1)]; Statement)) as an amendment that may highway to a fully controlled access, Uniform Relocation Assistance and Real be applied retroactively to previously four-lane divided freeway with Property Acquisition Act of 1970 [42 sentenced defendants. interchanges and frontage roads. The U.S.C. 4601 et seq., Pub. L. 91–646] as Draft Environmental Impact Statement amended by the Uniform Relocation Act DATES: Public comment should be (DEIS), Final Environmental Impact Amendments of 1987 (Pub. L. 100–17). received on or before September 13, Statement (FEIS), Record of Decision Wetlands and Water Resources: Clean 2010. (ROD) and published information Water Act [33 U.S.C.]; Wetlands ADDRESSES: Send comments to: United regarding this project are posted and Mitigation [23 U.S.C. 103(b)(6)(M) and States Sentencing Commission, One updated on the Idaho Transportation 133(b)(11)]: Compensatory Mitigation Columbus Circle, NE., Suite 2–500, Department (ITD) Web site at http:// for Losses of Aquatic Resources 2008 South Lobby, Washington, DC 20002– itd.idaho.gov/projects/d1. Select ‘‘U.S. [40 CFR 230]. 8002, Attention: Public Affairs- 95, Garwood to Sagle Environmental Executive Orders: E.O. 11988 Retroactivity Public Comment. Study.’’ Floodplain Management. E.O. 11990 The actions by the FHWA, and the Protection of Wetlands; E.O. 12898, FOR FURTHER INFORMATION CONTACT: laws under which such actions were Federal Actions to Address Michael Courlander, Public Affairs taken, are described in the FEIS for the Environmental Justice in Minority Officer, 202–502–4597. project approved on March 26, 2010. Populations and Low Income SUPPLEMENTARY INFORMATION: Section FHWA issued a Record of Decision Populations; E.O. 13175 Consultation (ROD) on July 2, 2010. The DEIS, FEIS, and Coordination with Indian Tribal 3582(c)(2) of title 18, United States ‘‘ and other project records are available Governments; E.O. 11514 Protection and Code, provides that in the case of a by contacting the FHWA or the Idaho Enhancement of Environmental Quality; defendant who has been sentenced to a Transportation Department at the E.O. 13112 Invasive Species;. term of imprisonment based on a addresses provided above. sentencing range that has subsequently (Catalog of Federal Domestic Assistance been lowered by the Sentencing This notice applies to all Federal Program Number 20.205, Highway Planning agency decisions as of the issuance date and Construction. The regulations Commission pursuant to 28 U.S.C. of this notice and all laws under which implementing Executive Order 12372 994(o), upon motion of the defendant or such actions were taken, including but regarding intergovernmental consultation on the Director of the Bureau of Prisons, or not limited to: Federal programs and activities apply to this on its own motion, the court may reduce General: National Environmental program.) the term of imprisonment, after Policy Act (NEPA) [42 U.S.C. 4321– Authority: 23 U.S.C. 139(l)(1). considering the factors set forth in section 3553(a) to the extent that they 4351]; Federal-Aid Highway Act [23 Peter J. Hartman, U.S.C. 109 and 23 U.S.C. 128]; Public are applicable, if such a reduction is Division Administrator, FHWA—Idaho consistent with applicable policy Hearing [23 U.S.C. 128]. Safe, Division. Accountable, Flexible, Efficient statements issued by the Sentencing Transportation Equity Act: A Legacy for [FR Doc. 2010–17223 Filed 7–14–10; 8:45 am] Commission.’’ BILLING CODE P Users (SAFETEA–LU) [23 U.S.C. 139] The Commission lists in § 1B1.10(c) Air and Noise: Clean Air Act [42 the specific guideline amendments that U.S.C. 7401–7671(q)]; Intermodal the court may apply retroactively under Surface Transportation Efficiency Act of UNITED STATES SENTENCING 18 U.S.C. 3582(c)(2). The background COMMISSION 1991, Congestion Mitigation and Air commentary to § 1B1.10 lists the Quality Improvement Program (Sec Sentencing Guidelines for United purpose of the amendment, the 1008 U.S.C. 149); Noise Standards: [23 States Courts magnitude of the change in the U.S.C. 109(i) (Pub. L. 91–605) (Pub. L. guideline range made by the 93–87)]. AGENCY: United States Sentencing amendment, and the difficulty of Wildlife: Endangered Species Act [16 Commission. applying the amendment retroactively U.S.C. 1531–1544 and Section 1536]; ACTION: Request for public comment. to determine an amended guideline Fish and Wildlife Coordination Act [16 range under § 1B1.10(b) as among the U.S.C. 661–667(d)]; Migratory Bird SUMMARY: On April 29, 2010, the factors the Commission considers in Treaty Act [16 U.S.C. 703–712]; Bald Commission submitted to the Congress selecting the amendments included in and Golden Eagle Protection Act of 1940 amendments to the sentencing § 1B1.10(c). To the extent practicable, [16 U.S.C. 668–668d] guidelines and official commentary, public comment should address each of Historic and Cultural Resources: which become effective on November 1, these factors. Section 106 of the National Historic 2010, unless Congress acts to the Preservation Act of 1966, as amended contrary. Such amendments and the The text of the amendments [16 U.S.C. 470(f) et seq.]; Archeological reasons for amendment subsequently referenced in this notice also may be Resources Protection Act of 1977 [16 were published in the Federal Register. accessed through the Commission’s Web U.S.C. 470(aa)–470(ll)]; Archeological 75 FR 27388 (May 14, 2010). One of the site at http://www.ussc.gov. and Historic Preservation Act of 1974 amendments, specifically Amendment 5 Authority: 28 U.S.C. 994(a), (o), (u); USSC [16 U.S.C. 469–469(c)]. pertaining to the use of recency as a Rules of Practice and Procedure 4.1, 4.3. Land: Section 4(f) of The Department factor in the calculation of the criminal of Transportation Act: [23 CFR 774]; history score, has the effect of lowering William K. Sessions III, Farmland Protection Policy Act (FPPA) guideline ranges. The Commission Chair. [7 U.S.C. 4201–4209]; Solid Waste requests comment regarding whether [FR Doc. 2010–17291 Filed 7–14–10; 8:45 am] Disposal Act, as amended by the that amendment should be included in BILLING CODE 2210–40–P

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Part II

Department of Transportation Federal Railroad Administration

49 CFR Parts 213 and 237 Bridge Safety Standards; Final Rule

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DEPARTMENT OF TRANSPORTATION bridges are owned by over 600 different bridges continue to function safely, and entities. The bridges vary in length, load masonry structures built as early as the Federal Railroad Administration capacity, design, and construction 1830s remain functional and safe for material. Everything that is shipped or their traffic. Of the few train accidents 49 CFR Parts 213 and 237 transported via rail likely travels across that involved bridges, most have not [Docket No. FRA 2009–0014, Notice No. 2] one or more railroad bridges. Thus, been caused by structural failure. FRA everything from intermodal goods, accident records for the 27 years 1982 RIN 2130–AC04 automobiles, grain, coal, hazardous through 2008 show 58 train accidents materials, and passengers is transported that were caused by the structural Bridge Safety Standards on the nation’s rail system and therefore failure of railroad bridges. These AGENCY: Federal Railroad across railroad bridges. accidents resulted in nine reportable Administration (FRA), Department of The structural integrity of bridges that injuries and a reported $26,555,878 in Transportation (DOT). carry railroad tracks is important to the damages to railroad facilities, cars and safety of railroad employees and to the ACTION: Final rule. locomotives. public. The responsibility for the safety B. Guidelines SUMMARY: FRA is establishing Federal of railroad bridges rests with the owner safety requirements for railroad bridges. of the track carried by the bridge, On April 27, 1995, FRA issued an This final rule requires track owners to together with any other party to whom Interim Statement of Policy on the implement bridge management that responsibility has been assigned by Safety of Railroad Bridges. Published in programs, which include annual the track owner. The severity of a train the Federal Register at 60 FR 20654, the inspections of railroad bridges, and to accident is usually compounded when a interim statement included a request for audit the programs. This final rule also bridge is involved, regardless of the comments to be submitted to FRA requires track owners to know the safe cause of the accident. during a 60-day period following load capacity of bridges and to conduct Beginning in 1991, FRA conducted a publication. On August 30, 2000, FRA special inspections if the weather or review of the safety of railroad bridges. published a Final Statement of Agency other conditions warrant such The review was prompted by the Policy on the Safety of Railroad Bridges inspections. agency’s perception that the bridge (‘‘policy statement’’). See 65 FR 52667. population was aging, traffic density With the policy, FRA established DATES: This final rule is effective and loads were increasing on many criteria for railroads to use to ensure the September 13, 2010. routes, and the consequences of a bridge structural integrity of bridges that carry FOR FURTHER INFORMATION CONTACT: failure could be catastrophic. During the railroad tracks, which reflected minor Gordon A. Davids, P.E., Chief past five decades, not one fatality has changes following public comment on Engineer—Structures, Office of Railroad been caused by the structural failure of the interim statement. Unlike Safety, FRA, 1200 New Jersey Avenue, a railroad bridge. Train accidents caused regulations under which FRA ordinarily SE., Washington, DC 20590 (telephone: by the structural failure of railroad issues violations and assesses civil (202) 493–6320); or Sarah Grimmer bridges have been extremely rare. penalties, the policy statement Yurasko, Trial Attorney, Office of Chief Although the average construction contained guidelines for the proper Counsel, FRA, 1200 New Jersey Avenue, date of railroad bridges predates most maintenance of bridge structures and is SE., Washington, DC 20950 (telephone: highway bridges by several decades, the advisory in nature. (202) 493–6390). older railroad bridges were designed to On October 16, 2008, President Bush SUPPLEMENTARY INFORMATION: carry heavy steam locomotives. Design signed into law, the Railroad Safety factors were generally conservative, and Improvement Act of 2008, Public Law SUPPLEMENTARY Table of Contents for the bridges’ functional designs permit 110–432, Division A (‘‘RSIA’’). Section INFORMATION repairs and reinforcements when 417 of the RSIA directs FRA to issue I. The Safety of Railroad Bridges necessary to maintain their viability. regulations requiring railroad track A. General Railroad bridges are most often owners to adopt and follow specific B. Guidelines privately, rather than publicly, owned. procedures to protect the safety of their C. Regulatory History Their owners seem to recognize the bridges. Prior to the passage of the RSIA, II. Railroad Safety Advisory Committee economic consequences of neglecting FRA had already begun work on (RSAC) Overview important maintenance. Private III. RSAC Railroad Bridge Working Group revising the policy statement. On IV. Response to Public Comment ownership enables the railroads to January 13, 2009, FRA published an V. Section-by-Section Analysis control the loads that operate over their amendment to the policy statement by VI. Regulatory Impact bridges. Cars and locomotives exceeding incorporating changes proposed by the A. Executive Order 12866 and DOT the nominal capacity of a bridge are Railroad Safety Advisory Committee Regulatory Policies and Procedures allowed on a bridge only with (‘‘RSAC’’) on September 10, 2008. RSAC B. Regulatory Flexibility Act and Executive permission from the responsible bridge developed a list of essential elements of Order 13272 engineers, and then only under railroad bridge management programs C. Paperwork Reduction Act restrictions and conditions that protect (‘‘essential elements’’) which make up D. Environmental Impact the integrity of the bridge. the bulk of the amendment. See 74 FR E. Federalism Implications Many railroad bridges display F. Unfunded Mandates Reform Act of 1995 157. All aspects of the policy statement G. Energy Impact superficial signs of deterioration but that are not incorporated into the H. Privacy Act Statement still retain the capacity to safely carry regulatory text of part 237 are now their loads. Corrosion on a bridge is not found in its appendix A. Background a safety issue unless a critical area sees C. Regulatory History I. The Safety of Railroad Bridges significant loss of material. Routine inspections are prescribed to detect this On August 17, 2009, FRA issued a A. General condition, but determination of its effect Notice of Proposed Rulemaking (NPRM) There are nearly 100,000 railroad requires a detailed inspection and as a first step in the agency’s bridges in the United States. These analysis of the bridge. In general, timber promulgation of bridge safety

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regulations as mandated by the RSIA. League of Railway Industry Women*; respects from the RSAC See 74 FR 41558. FRA received National Association of Railroad recommendation in developing the comments from eight parties, including Passengers (NARP); actual regulatory proposal or final rule. two professional engineers, the Alaska National Association of Railway Any such variations would be noted and Railroad Corporation, Maryland Business Women*; explained in the rulemaking document Department of Transportation National Conference of Firemen & issued by FRA. If the working group or (‘‘Maryland DOT’’), Iowa Department of Oilers; RSAC is unable to reach consensus on Transportation (‘‘Iowa DOT’’), National Railroad Construction and recommendations for action, FRA RailAmerica, the American Short Line Maintenance Association; moves ahead to resolve the issue and Regional Railroad Association National Railroad Passenger Corporation through traditional rulemaking (ASLRRA), and the Association of (Amtrak); proceedings. American Railroads (AAR). FRA will National Transportation Safety Board III. RSAC Railroad Bridge Working address the concerns raised by the (NTSB)*; Group comments in the text below. Railway Supply Institute (RSI); This final rule is the culmination of Safe Travel America (STA); RSAC on February 20, 2008, agreed to FRA’s efforts to develop and promulgate Secretaria de Comunicaciones y accept the task of reviewing FRA’s bridge safety standards. In the Section- Transporte*; railroad bridge safety policies and by-Section Analysis, below, FRA will Sheet Metal Workers International activities, and to make appropriate discuss how the regulatory text Association (SMWIA); recommendations to FRA to improve addresses each portion of the RSIA. Tourist Railway Association Inc.; the bridge safety program. RSAC Transport Canada*; accordingly established a Railroad II. Railroad Safety Advisory Committee Transport Workers Union of America Bridge Working Group (Working (RSAC) Overview (TWU); Group), composed of representatives of In March 1996, FRA established Transportation Communications the various organizations on the RSAC RSAC, which provides a forum for International Union/BRC (TCIU/BRC); and including persons with particular developing consensus recommendations Transportation Security Administration expertise in railroad bridge safety and to FRA’s Administrator on rulemakings (TSA); and management. The Working Group met and other safety program issues. The United Transportation Union (UTU). on April 24–25, 2008, June 12, 2008, RSAC includes representation from all *Indicates associate, non-voting and August 7, 2008. On September 10, of the industry’s major stakeholders, membership. 2008, the full RSAC voted on the including railroads, labor organizations, Working Group’s report, Essential When appropriate, FRA assigns a task suppliers and manufacturers, and other Elements of Railroad Bridge to RSAC, and after consideration and interested parties. A list of RSAC Management Programs, and debate, RSAC may accept or reject the members follows: recommended that FRA incorporate it task. If the task is accepted, RSAC American Association of Private into FRA’s Statement of Agency Policy establishes a working group that on the Safety of Railroad Bridges. The Railroad Car Owners (AARPCO); possesses the appropriate expertise and American Association of State Highway Working Group met again on January representation of interests to develop & Transportation Officials (AASHTO); 28–29, 2009, and February 23–24, 2009, American Chemistry Council; recommendations to FRA for action on to recommend rule text to address the American Petrochemical Institute; the task. These recommendations are RSIA’s mandate to FRA in Section 417 American Public Transportation developed by consensus. A working to promulgate bridge safety regulations. Association (APTA); group may establish one or more task The Working Group reached consensus American Short Line and Regional forces to develop facts and options on on proposed regulatory text which made Railroad Association (ASLRRA); a particular aspect of a given task. The up most of the provisions of the NPRM. American Train Dispatchers Association task force then provides that After the NPRM comment period (ATDA); information to the working group for closed, the Working Group reconvened Association of American Railroads consideration. If a working group comes on December 15, 2009, to review the (AAR); to unanimous consensus on comments and offer additional advice Association of Railway Museums recommendations for action, the on how FRA should proceed with the (ARM); package is presented to the full RSAC final rule. Due to time constraints, FRA Association of State Rail Safety for a vote. If the proposal is accepted by elected to seek advice from the Working Managers (ASRSM); a simple majority of RSAC, the proposal Group regarding the public comments Brotherhood of Locomotive Engineers is formally recommended to FRA. FRA and possible revisions to the NPRM and Trainmen (BLET); then determines what action to take on rather than asking the group and the full Brotherhood of Maintenance of Way the recommendation. Because FRA staff RSAC to formally provide Employees Division (BMWED); plays an active role at the working Brotherhood of Railroad Signalmen recommendations regarding the final group level in discussing the issues and rule. (BRS); options and in drafting the language of Chlorine Institute; the consensus proposal, FRA is often IV. Response to Public Comment Federal Transit Administration (FTA)*; Fertilizer Institute; favorably inclined toward the RSAC As mentioned above, FRA received High Speed Ground Transportation recommendation. eight comments to the NPRM. Association (HSGTA); However, FRA is in no way bound to Comments were submitted by a variety Institute of Makers of Explosives; follow the recommendation, and the of affected parties, including individual International Association of Machinists agency exercises its independent professional engineers, the Alaska and Aerospace Workers; judgment on whether the recommended Railroad Corporation, RailAmerica, two International Brotherhood of Electrical rule achieves the agency’s regulatory state DOTs, the AAR and the ASLRRA. Workers (IBEW); goal, is soundly supported, and is in FRA reviewed the comments with the Labor Council for Latin American accordance with policy and legal Working Group and FRA staff also Advancement (LCLAA)*; requirements. Often, FRA varies in some extensively reviewed and evaluated the

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comments. In this section, FRA will general system and are ‘‘insular.’’ A responsibility for the track has been respond to comments regarding the tourist operation is considered ‘‘insular’’ assigned and recognized pursuant to application of the bridge rule, the if its operations are limited to a separate part 213. AAR is concerned that there responsibility for compliance, enclave in such a way that there is no will be situations where notification definitions, adoption of bridge reasonable expectation that the safety of pursuant to § 213.5(c) has not taken management programs, the definition of any member of the public—except a place, and argues that notification might a railroad bridge engineer, the business guest, a licensee of the tourist not have taken place because the lease determination of bridge load capacities, operation or an affiliated entity, or a was entered into before § 213.5 was bridge inspection records, and other trespasser—would be affected by the adopted. AAR explains that there might general comments. FRA is also operation. Appendix A to 49 CFR part be other reasons notification did not responding to some of the smaller 209. FRA does, however, exercise take place or a railroad might simply be concerns within the section-by-section limited jurisdiction over tourist unable to determine whether analysis. railroads that do not operate on the notification occurred. If it cannot be general system, but that are non-insular. established that notification did occur, Application Specifically, FRA will consider a AAR argues that the rule, literally Mr. Wayne Duffet, P.E., commented railroad to be non-insular if one or more interpreted, might not permit FRA to that FRA proposed that this part apply of the following exist on its line: A hold the lessee responsible for to tourist railroads because the public highway-rail crossing that is in compliance even though, as a practical passengers on those railroads are use; an at-grade rail crossing that is in matter, the lessee controls the track and entitled to the protection afforded by use; a bridge over a public road or bridge and is performing all functions this rule. He observed that, as written, waters used for commercial navigation; related to track and bridge safety. AAR the rule applies to every bridge with a or a common corridor with another suggests FRA address the issue of gauge of two feet or more, that handles railroad. Appendix A to 49 CFR part historical leases by adding regulatory trains, regardless of whether part of the 209. With respect to this rule, FRA is text which states that FRA may hold a general railroad system. The comment exercising jurisdiction over all tourist lessee of track to which this part applies requests clarification on two points: and excursion operations regardless of responsible for compliance with this whether the rule applies to a tourist whether they are insular or not. part where the lessee exercises control railroad that is not part of the general Maryland DOT requested an over the track. railroad system, and whether the rule explanation of the definition of the This provision follows the use of the applies to a two-foot gage bridge within ‘‘general railroad system of term ‘‘owner of track’’ in the Track an amusement park. transportation’’ as it applies to urban Safety Standards at 49 CFR part 213. FRA notes that a ‘‘tourist railroad’’ rapid transit operations as set forth in FRA believes that it would be confusing comes under the uniform FRA the rule. FRA replies that § 237.1(b) is and inconsistent for FRA to define an definition of the term ‘‘railroad’’ as consistent with 49 U.S.C. 20102(1)(B) ‘‘owner of track’’ differently in two found at 49 CFR 209.3 and within the and 49 CFR 213.3(b)(2), which exempt different parts of the Rail Safety meaning of the Federal railroad safety ‘‘track used exclusively for rapid transit Standards. FRA advises an owner of statutes as found at 49 U.S.C. operations in urban areas that are not track to resubmit a notification of 20102(1)(A). Tourist railroads move connected with the general system of assignment if the owner is uncertain passengers by the use of track and transportation’’ from the application of whether an assignment has been made. equipment that, taken together, would that regulation. If an urban rapid transit However, assignment does not relieve a commonly be described as a ‘‘railroad,’’ system operates over the general system, track owner of compliance with part and their operations pose a distinct risk FRA will exercise jurisdiction over the 237, as § 237.3(c) states that FRA can to the safety of the public. ‘‘An urban rapid transit operation to the always hold the track owner responsible installation which is not part of the extent that it is connected to the general for compliance with the bridge safety general railroad system of transportation system. In situations in which an urban standards. and over which trains are not run by a rapid transit operation has a minor Maryland DOT noted that its state railroad’’ refers to tracks located within connection to the general system, i.e., at highway administration, and several an industrial operation where rolling a highway-rail grade crossing, FRA will counties in the state, own and inspect equipment is moved only by and for the exercise limited jurisdiction over the several railroad-carrying bridges. account of that particular industry. If a urban rapid transit system and only to Unstated, but implicit in the comment, railroad as defined in 49 CFR 209.3 the extent necessary to ensure safety at is that while the state highway operates over a bridge inside such an the points of connection for that system, administration owns the bridge, the installation, then this regulation applies the general system, and the public. track is owned by a third party. to that bridge and to the owner of track Maryland DOT states that in accordance on that bridge. Responsibility for compliance with this section, however, the state Specifically as to tourist railroad AAR noted that there are numerous highway administration would not be operations, FRA exercises jurisdiction tracks on railroad bridges that have been responsible for compliance with this over tourist operations whether or not leased by their owners to other rule, since the ‘‘track owner’’ is they are conducted on the ‘‘general companies. The proposed bridge rule responsible. In addition, several railroad system of transportation’’ attempted to account for these historical counties own railroad-carrying bridges (‘‘general system’’), which is defined as leases by providing that where an owner as well. ‘‘the network of standard gage track over of the track over the bridge has assigned FRA replies that the rule does not which goods may be transported responsibility for the track to another alter the financial responsibility of a throughout the nation.’’ Appendix A to company and FRA has been notified highway agency that owns, inspects and 49 CFR part 209. The only exceptions pursuant to 49 CFR 213.5(c), additional maintains railroad bridges. The rule where FRA typically does not exercise notification under part 237 for the does, however, hold the track owner jurisdiction are for tourist operations on bridge is not needed. This is because responsible to assure that the track gage that is less than 24 inches and part 237 places responsibility for the inspections and maintenance are tourist operations that are off of the bridge with the person to whom performed correctly by qualified and

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designated persons. The track owner replies that the regulatory definition of or replication, of required would be permitted to accept work a bridge includes open decks, ballast documentation over more realistic time performed by a highway agency decks, and solid decks. Essentially, a frames, as well as the allocation of provided that it conforms to the bridge deck is the component of the necessary expense over a longer, and requirements of this part. FRA also bridge upon which the track is possibly less impacting, period of time. notes that instances have arisen in supported, and which is subject to The Alaska Railroad Corporation which state agencies have performed bending stresses from trains moving requests that the bridge management inspections and evaluations in which a over it. program adoption time be extended to state-owned railroad bridge was found Another comment requests an the effective date of the final rule plus to be seriously deficient, and where the explanation of an apparent one year. The additional time is operating railroad was never notified or inconsistency between the definition of necessary for inventory and database advised of the problem. FRA accident a railroad bridge in this rule, and the development of all structures covered records include at least one such definition of a bridge used by the by the regulation, as seasonal climatic FHWA, which defines a bridge as a instance in which the bridge failed conditions will potentially make some structure with a span length of 20 feet under a train, resulting in a catastrophic of these structures on the Alaska or more. FRA responds that railroad train accident, an accident which Railroad inaccessible until early occurred on the Southern Railroad of bridges differ greatly from highway summer 2010. New Jersey on August 12, 1999. This bridges in many respects, particularly in provision is intended, partly, to prevent regard to the nature of the heavy live With regard to the first concern, FRA such a loss of vital communication load which they support. This replies that the Surface Transportation among the concerned parties definition represents the consensus of Board defines the class of railroad at 49 Maryland DOT also questions all parties in the Working Group and is CFR part 1201, based on the carrier’s whether the track owner could assign consistent with long-held railroad annual operating revenue. This section responsibility to someone else. If one of industry practice. specifies time periods for program these railroads requests the state agency A third commenter suggests that the adoption according to the type of to be the responsible party for the FRA railroad bridge definition is broad and railroad, not according to railroad traffic inspection, they would consider potentially includes types of structures volume or load intensity. By ‘‘general refusing the request because they would that are affected by track live loads that railroad system of transportation,’’ FRA have to be in compliance with the have not previously been managed as refers to the network of standard gage whole program, which would require a bridges. These structures may include track over which goods may be railroad bridge engineer, railroad bridge waterfront structures such as piers and transported throughout the nation and inspectors and a railroad bridge wharves, mechanical shop structures passengers may travel between cities management program. including drop tables and inspection and within metropolitan and suburban FRA responds that, in any case of pits, as well as scales, large culverts and areas. See appendix A to 49 CFR part assignment of responsibility, the potentially even various types of 209. assignee must first accept the retaining walls that have under-grade assignment before it can become structural layout features that could be Regarding the second comment, effective. See § 237.3(b)(6). The final interpreted to be span lengths of 10 feet ASLRRA’s proposal is consistent with rule states that the track owner must or more. the proposed rule. Pursuant to send a written notification of FRA replies that piers and wharves, § 237.33(c), the program, when adopted assignment to FRA at least 30 days in scales, and other structures that carry by a track owner, need only incorporate advance of the assignment, and that the railroad track and meet the span a provision to obtain and maintain the notification must include a statement definition of a bridge are included design documents of each bridge if signed by the assignee acknowledging under this regulation. Retaining walls available, and to document all repairs, the assignment. A notification that did and other roadbed structures are not modifications, and inspections of each not include an acknowledging statement included, because they do not carry bridge. There is no deadline for would not comply with § 237.3(b)(6), track on a span over a gap. Additionally, acquisition of these documents. FRA and FRA would disregard the culverts with a span of 10 feet or greater anticipates that the priorities for assignment. are also subject to this regulation and acquisition of archived bridge design must be included in track owner’s Definitions documents would closely follow their bridge management program. usefulness in determining bridge FRA received three comments capacities. regarding the definition of a railroad Adoption of Bridge Management bridge. The comments suggested that Programs To address the Alaska Railroad the definition of a railroad bridge is Three comments addressed concerns Corporation’s concerns, FRA replies that either not broad enough or too broad with the adoption of bridge management the bridge inventory need not be and that there is an inconsistency programs. Maryland DOT asked if the complete in all of its details at the time between the definition of a railroad regulations ‘‘distinguish between Transit of adoption of a railroad’s bridge bridge and the Federal Highway Railroads or short-lines, or rail traffic management program. It is reasonable to Administration’s (FHWA) definition of a volume,’’ and requested that FRA define expect that an adopted program would bridge. FRA intends the explanations in Class I and II carriers and the general specify the format for recording the this response to clarify that the railroad system. ASLRRA remarks that inventory information, or ‘‘bridge list,’’ definition of a railroad bridge is some design documents for each bridge and that information readily available consistent with long-held industry might be difficult, if not impossible, to from existing records, such as valuation practice and is neither too broad nor too obtain. ASLRRA proposes that all maps, could be used to initially narrow. documentation required by the rule be populate the data base. After that, One commenter suggested that the completed no later than five years additions and refinements to that definition of a bridge be changed to ‘‘any following the program’s adoption. This information would be generated by structure with an open deck.’’ FRA would allow for the search and retrieval, normal inspection work.

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Railroad Bridge Engineer wide variations in the properties of history of sudden catastrophic failure, AAR noted in its comment that the timber material and the changes that absent sudden damage from severe NPRM reference to the ‘‘Accreditation occur to timber components over time. weather conditions or heavy water Board for Engineering and Technology FRA recognizes that the evaluation of flows. ASLRRA commented that ‘‘an (ABET)’’ is obsolete in that the timber trestles is not an exact science. individual trained as a bridge supervisor organization has changed its name to Although theoretical values of safe and inspector with many years of ABET, Inc. AAR further notes that forces and stresses can be placed on experience inspecting a bridge that itself ABET Inc. only accredits engineering individual timber components, the actual nature of wood varies widely, has been in place for many years, is education programs in the United even within the same species. In fully qualified to determine whether States, but mutually recognizes addition, timber deteriorates over time that bridge has the capacity to carry the programs accredited by corresponding and under repeated loads. Some timber loads for which it is rated. Under organizations in other nations. The same bridge components are not easily normal bridge inspection procedures, if commenter notes an ambiguity in the inspected, especially where faces of the the bridge shows signs of problems, a term ‘‘licensed scope of practice’’ as it members are hidden by other adjacent bridge inspector usually ‘rates’ a bridge applies to the professional practice of or supported members. A load rating on each time he inspects it. If problems are engineering. a timber bridge must also account for encountered, additional steps will be FRA acknowledges the concern time and for expected costs to maintain taken to address the problem in regarding ABET, Inc., and has changed the bridge under its rated traffic. An accordance with these regulations. the reference in the regulatory text to engineer can raise the capacity of a Rating an old masonry arch or bridge ABET, Inc., or its successor. FRA did timber trestle from 263,000- to 286,000- span may be difficult to do even for a not intend to exclude engineers who pound cars, for instance, but the owner railroad bridge engineer. While a received their education in other must be advised that increased number of bridges have been upgraded nations from being recognized as maintenance costs will probably result, on many short lines and capacity rating railroad bridge engineers, and has and that a more intensive inspection calculations are available for those amended the text to specify that, in program must be instituted for that bridges, many more have not been order to fulfill the educational bridge, owing to the more rapid upgraded and are performing well.’’ FRA requirements of this section, a railroad deterioration that will occur. responds that there is a clear distinction bridge engineer can also have received The same commenter also suggested between what some consider a a degree from a program accredited as that a revised rating not be required ‘‘condition rating’’ ascribed to a bridge a professional engineering curriculum where an existing, valid rating provides by an inspector, and a ‘‘capacity rating’’ by a foreign organization recognized by a large margin of capacity above the which is determined by a qualified ABET, Inc. or its successor. FRA has loads that are actually operated. The engineer. The term ‘‘rating’’ in the clarified the ambiguity commented on rule text has been slightly modified to context of this rule refers only to a in the language of the NPRM by stating address that issue with a realistic ‘‘capacity rating.’’ This rule does not that a railroad bridge engineer can also solution. FRA has revised § 237.71(f) to address a ‘‘condition rating’’ to be be considered to have fulfilled the state that a new bridge load capacity applied to a bridge. educational requirements of this section shall be determined, if, in the opinion A bridge inspector or supervisor who if he or she is currently registered as a of the railroad bridge engineer, a bridge is not an engineer can certainly professional engineer. FRA notes that inspection reveals that the condition of determine by observation and state law governing the professional a bridge or a bridge component might measurement whether the condition and practice of engineering requires that adversely affect the ability of the bridge configuration of a bridge corresponds professional engineers limit the subject to carry the traffic being operated. This with its state when it was rated by an of their practice to areas in which they issue is also addressed further in the engineer for capacity. However, if the are competent. section-by-section analysis, below. bridge displays a condition or RailAmerica commented that nothing The same commenter also noted the deterioration that materially affects its in this section speaks to the competence difficulty of assigning a precise rating to capacity, as by increasing the stress of an engineer as a railroad bridge many older concrete and masonry intensity in one or more components of engineer. FRA replies that the structures that are not well documented, the bridge, accurate determination of the determination of the competence of a and of which the internal configuration revised capacity requires the railroad bridge engineer is left to the cannot be easily determined. FRA experience, education and training of a track owner. FRA does not intend to recognizes that many older concrete and competent railroad bridge engineer. In engage in qualifying individuals to masonry structures are not documented. the same manner, the determination of perform those functions. That Especially in the case of reinforced the capacity of an existing bridge determination will have to be made by concrete, the configuration of requires that the engineer should the track owner after review of the reinforcing steel greatly affects the consider all available information engineer’s qualifications and experience calculated capacity of the bridge. The related to the configuration and in the light of the qualification analysis of brick and stone arches is condition of the bridge, including all requirements of this part. The employer possible, but the unknown variables can available design and modification or the client of an engineer has always produce widely differing results. The documents and current reports of had the prerogative and responsibility to practice to date in the railroad bridge inspections. These determinations of determine the qualifications of that engineering profession has been to bridge capacity ratings are usually individual, and FRA does not propose observe these structures for any obvious performed in an office environment, and to alter that relationship. signs of distress, and to rate them based only seldom in the field. on their condition at the time of RailAmerica commented that the rule Determination of Bridge Load Capacities inspection. FRA will accept the would require bridge ratings to be One commenter remarked on the reasonable application of present completed within 5 years of the difficulty of assigning a precise capacity methods for evaluating and managing adoption of a Bridge Management rating to a timber bridge owing to the these structures, because there is not a System. This provision would penalize

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those railroads which have adopted a inspections and evaluations. Some of national standard. Additionally, bridge management program before the those evaluations include a considerable Maryland DOT asks whether FRA will final date required in the rule. FRA amount of engineering work that is compensate state agencies for the cost of agrees with this comment. The rule has performed in an office rather than in the overhauling their structural inspection been modified so that the field, and several months are often used program and database, and for the determinations of load capacity are in preparing the complete report. The additional expense of conducting required within five years of the extension of the time period for filing annual rather than biennial inspections. required date for adoption of the bridge the report is intended to allow the most Finally, Maryland DOT asked if any management program, rather than the efficient use of inspection and regulations are proposed for tunnel, actual date of adoption if earlier than engineering resources, while still station or other miscellaneous structural required. providing effective input for inspections. management by the bridge owner and With respect to the first question, FRA Bridge Inspection Records monitoring by FRA. has not distinguished among railroads Several commenters suggested that In light of the reasons given, and of different sizes because the size of the the interim bridge inspection report be discussion at the RSAC Railroad Bridge railroad is in no way related to the deleted from the rule, or that the time Working Group, FRA finds that a 120- physical attributes of a bridge and the period for its submission be extended. day period for submission of the loads that it carries. As noted above, this Several also suggested that the time complete report would be reasonable rule does not affect transit lines. The period for submission of the complete and effective. only criterion related to inspection inspection report be extended. FRA Two commenters noted that the frequency in this rule is a minimum of understands that the regulated proposed requirement to retain one inspection per year. As this community is reluctant to see the inspection reports until the completion provision is found in the RSIA, FRA has imposition of record-keeping of the next two following inspections of no option in this regard. See Section requirements that might not correspond the same type would be burdensome 417(b)(5), Public Law 110–432, 122 Stat. with their current practices. However, and ineffective in the case of certain 4890 (49 U.S.C. 20103, note). With bridge inspections performed by or for special inspections. For instance, if a regard to the second concern, the rule the track owner are a critical function highway vehicle strike occasions a does not require replacement of existing which must be monitored in the special inspection, it would have been programs as long as they comply with enforcement process. Since FRA cannot necessary to retain the records of the the requirements of the rule. In response be present on-site at each bridge special inspection until the bridge had to the third concern, FRA is not aware inspection, the agency must see a record twice again been struck by a highway of any Congressional appropriation of that shows that the inspection was vehicle and inspected. This is not funds to provide assistance in order for performed, when and by whom it was realistic, so the final rule simply regulated entities to comply with bridge performed, and the conditions found in requires that records of inspections be safety regulations and thus FRA will not the inspection. If there were no time retained for two years following be providing any funding for that requirements for recording inspections, completion of the inspection, and that purpose. Finally, tunnels, stations, and it would be impossible for FRA to records of underwater inspections be other structures were not addressed in effectively monitor this vital function. retained until the completion and the proposed rule and thus are not FRA views the interim report as a review of the next underwater addressed in this final rule. management tool in the bridge program inspection of the same components of Iowa DOT commented on the various audit to show whether bridge the bridge. types of ownership and maintenance inspections are being performed at or Additionally, the final rule also agreements in place between highway near their scheduled frequency, with accommodates instances in which a agencies and railroads that cross those ample time to permit adjustments as bridge inspection does not encompass highways on bridges. Iowa DOT stated necessary in the inspection program. the entire bridge. It also includes a that ‘‘it would be more logical and Most railroad bridge inspection clarification that when a complete provide a more consistent bridge safety programs at present do not incorporate report is filed before an interim report program if the responsibility for an interim inspection report. The time is due, the interim report is not inspection, load capacity ratings, and between an inspection and the filing of required. other aspects of the bridge safety the inspection report is found to vary. program were fully retained by the track An effective bridge management Other Comments owner and not by the party that is program requires that the person in FRA received a number of comments financially responsible for maintenance. charge of the program have reasonably that did not pertain to specific sections Where no agreement exists there can be current information on the progress of of the rule text. FRA will address these a conflict over the responsibilities, the vital function of bridge inspection. concerns below. therefore having the track owner fully The proposed time frame of 14 days has Maryland DOT suggested that FRA responsible for the bridge safety been extended to 30 days in the final consider whether it would be beneficial program aspects would prevent any rule because FRA now believes that the to have the same inspection frequency bridge from ‘falling through the cracks’ 30-day time period is sufficient for criteria for all rail and transit lines or due to that conflict.’’ Iowa DOT would effective management by the railroad whether it is relevant to distinguish like to see the final rule assign track and effective compliance monitoring by between Class I railroads, short lines, owners the full responsibility for the FRA. and transit lines, or to factor in rail bridge safety program, regardless of who Two commenters requested that the traffic volume in general. Maryland is financially responsible for the time period for submission of the DOT also states that it already has a structure’s maintenance. Finally, the complete inspection report be extended detailed structural inspection program comment also states that, although the from 45 to 90 days, and one commenter and database. It recommends that the agency’s bridge inspectors are fully requested 120 days. FRA understands new regulations not require replacement qualified to inspect railroad bridges, the circumstances in which a consultant of existing agency programs, reporting determine load capacities, etc., they is engaged to conduct detailed bridge forms, etc., to be in accordance with a would not have the experience or

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knowledge to translate the load Addition of 49 CFR Part 237, Bridge Section 237.3 Responsibility for capacities into railroad operational Safety Standards Compliance terms as required by the rule. Subpart A—General The responsibility for the safety of FRA notes that the final rule holds the trains on any track lies with the owner track owner responsible for compliance, This part prescribes minimum safety of that track. Therefore, the track owner which is consistent with the requirements for the management of is responsible for complying with the commenter’s request. The regulation railroad bridges that support one or bridge safety standards promulgated in does not address the question of more tracks. Track owners may adopt this part. If a bridge carries tracks financial responsibility or more stringent standards as long as they owned by two or more owners, then the are in accordance with this part. FRA apportionment of expenses for bridge track owners can choose to make an notes that it expressed these statements management or maintenance. That issue assignment of responsibility for in proposed § 237.1, Scope of part, in would continue to be governed by the compliance with this part. The the NPRM. See 74 FR 41560, 41573. terms of any agreements between the assignment process, delineated in FRA does not believe it necessary to paragraphs (b) through (d) of this track owner and bridge owner. The rule include these explanatory statements section, is similar to the assignment does not assign or apportion financial or directly in a section of the rule text, process detailed in 49 CFR 213.5. functional responsibility for inspection however, and is retaining them here However, FRA will hold the track owner or maintenance of railroad bridges. The instead. or the assignee, or both, responsible for rule simply holds the track owner Separately, FRA has removed compliance with this part and subject to responsible for the adequate and safe proposed § 237.3, Preemptive effect. See penalties under § 237.7. FRA intends support of its track on bridges. FRA 74 FR 41573. One commenter that the responsibility for compliance does not specify who will perform those questioned whether the provisions in with this part will follow, as closely as functions, so long as they are performed the proposed section were necessary, practicable, the responsibility for correctly by qualified individuals and whether they were inconsistent compliance with the Federal Track designated by the track owner. That with other regulations. This section has Safety Standards, and that where such designated individual may accept work been removed; discussion of the responsibility is already established, it performed by others, such as a state federalism implications of the would not be necessary for the track agency, if it is acceptable to them and rulemaking is found under Regulatory owner to file an additional assignment can be adequately verified. Impact and Notices, below. The sections of responsibility. As in part 213, FRA Regarding the last concern, bridge in subpart A have been renumbered, intends that ‘‘person’’ means an entity of inspectors do not normally calculate the accordingly. any type covered under 1 U.S.C. 1, load capacities of a railroad bridge, including but not limited to the Section 237.1 Application following: A railroad; a manager, unless they also happen to be competent supervisor, official, or other employee railroad bridge engineers. Moreover, an This rule applies to all owners of or agent of a railroad; any owner, engineer who cannot translate load track carried on railroad bridges with manufacturer, lessor, or lessee of capacities into railroad operational certain exceptions as outlined or explained in following subsections. As railroad equipment, track or facilities; terms is not qualified to prescribe the any independent contractor providing loadings for a railroad bridge. The rule delineated in FRA’s Statement of Agency Policy Concerning Enforcement goods or services to a railroad; any places the responsibility upon the track employee of such owner, manufacturer, owner to have this done by a of the Federal Railroad Safety Laws at appendix A of 49 CFR part 209, FRA lessor, lessee, or independent designated, competent railroad bridge exercises jurisdiction over tourist, contractor; and anyone held by FRA to engineer. scenic, and excursion railroad be responsible for compliance with this V. Section-by-Section Analysis operations whether or not they are part. conducted on the general railroad Paragraph (d). As described in 49 CFR Amendment to 49 CFR Part 213, Track system. This part applies to both insular part 213, a common carrier by railroad Safety Standards and non-insular tourist railroads which is directed by the Surface Transportation Board to provide service Appendix C to Part 213—Statement of because the passengers on those railroads are entitled to the protection over the track of another railroad under Agency Policy on the Safety of Railroad 49 U.S.C. 11123 is considered the owner Bridges afforded by this rule. As a matter of policy, FRA does not consider devices of that track for the purposes of the application of this part during the FRA is removing appendix C to part that run on rails in amusement parks to period the directed service order 213, which is FRA’s Statement of be railroads. remains in effect. On rare occasions, Agency Policy on the Safety of Railroad Paragraph (b). This part does not such as a cessation of service by a Bridges (‘‘policy statement’’). As many apply to bridges on track used railroad, the Surface Transportation portions of the text in the policy exclusively for rapid transit operations Board has directed a railroad other than statement are covered in part 237, it in urban areas that are not connected the track owner to provide service. In would be redundant and confusing to with the general system of such cases, the designated operator shall leave them in the policy statement as transportation. This is in accordance be considered the owner for purposes of currently published in part 213. With with 49 U.S.C. 20103 and appendix A compliance with the bridge safety regard to the portions of the policy of 49 CFR part 209. regulations. statement that are advisory in nature, Paragraph (c). This part does not Paragraph (e). This paragraph requires FRA is publishing them in a new apply to bridges located in an any person, including a state agency, appendix to part 237, which will be installation which is not a part of the who performs a function on a railroad discussed further below. general railroad system of transportation bridge that is required by this part to and over which trains are not operated perform that function in accordance by a railroad. with this part. Instances have occurred

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in which state agencies have performed because that issue is addressed in other makes the critical decisions regarding bridge inspections and evaluations in rules. the management and use of that bridge. which the bridge was found to be Railroad bridge. A ‘‘railroad bridge’’ is Section 237.31 Adoption of Bridge seriously deficient, and where the any structure which spans an opening Management Programs operating railroad was never notified or under the track except for a small advised of the problem. FRA accident culvert, pipe, or other such structure Congress mandated that FRA records include at least one such that is located so far below the track that ‘‘promulgate a regulation requiring instance in which the bridge failed it only carries dead load from soil owners of track carried on one or more under a train, resulting in a catastrophic pressure and is not subjected to railroad bridges to adopt a bridge safety train accident. Section 237.109 requires measurable bending, tension or management program to prevent the that the track owner keep the bridge compression stresses from passing deterioration of railroad bridges and inspection reports, and must therefore trains. Unloading pits, track scales, and reduce the risk of human casualties, obtain them from a state agency or any waterfront structures such as piers and environmental damage, and disruption other party that performs bridge wharves that fall within the definition to the Nation’s railroad transportation inspections in conformance with the of a ‘‘railroad bridge’’ are considered system that would result from a ’’ requirements of these regulations. This bridges for purposes of this part. catastrophic bridge failure. Section 417(a), Public Law 110–432, 122 Stat. provision will prevent a loss of vital FRA does not intend to relieve a communication among concerned 4890 (49 U.S.C. 20103, note). This railroad from taking any action section requires track owners to adopt a parties. necessary to protect the safety of trains Paragraph (f). Where an owner of bridge safety management program that in the case of any structure, including prevents the deterioration of railroad track to which this part applies has small culverts, retaining walls, tunnels bridges by preserving their capability to previously assigned responsibility for a or overhead structures by providing for safely carry the traffic to be operated segment of track to another person as their inspection and maintenance, but it over them. Class I carriers and owners prescribed in 49 CFR 213.5(c), exempts them from the specific of track segments which are part of the additional notification to FRA is not requirements of this regulation. A general railroad system of transportation required. structure in a locomotive or car and which carry more than ten Paragraph (g). This paragraph maintenance facility which is used to scheduled passengers trains per week provides that FRA reserves the right to support cars or locomotives for shall implement their bridge safety reject an assignment of responsibility maintenance is not included in the programs no later than March 14, 2011. under § 237.3(b) for cause shown. As specific requirements of this regulation. Class II carriers which carry ten or fewer stated in paragraph (c) of this section, Section 237.7 Penalties scheduled passenger trains per week FRA may hold the track owner or the shall implement their bridge safety assignee, or both, responsible for This provision conforms to provisions programs no later than September 13, compliance with this part and subject to of the enabling legislation and stated 2011. All other track owners subject to penalties under § 237.7. Consequently, agency policy. Consistent with FRA’s this part shall implement their bridge if FRA rejects an assignment of Statement of Agency Policy Concerning safety programs no later than September responsibility, FRA will not consider Enforcement of the Federal Railroad 13, 2012. the rejected assignee responsible for Safety Laws, a penalty may be assessed FRA considers this implementation compliance with part 237 pursuant to against an individual only for a willful schedule to be realistic and effective, paragraph (c) of this section. violation. The Administrator reserves with priorities given to railroads with the right to assess a penalty of up to Section 237.5 Definitions the highest levels of freight or passenger $100,000 for any violation where traffic. The implementation dates apply The definitions in this section are circumstances warrant. See 49 CFR part to the track owner, not to specific track only intended to apply to this part, and 209, appendix A. segments. However, it is reasonable to not to alter the same terminology Section 237.9 Waivers consider that the specific provisions of wherever used outside this part for each program will be implemented in a other purposes. This section provides that each manner that accords higher priority to Bridge modification and bridge repair. petition for a waiver under this part individual track segments with high ‘‘Bridge modification’’ means a change to shall be filed in the manner and contain volumes of freight or passenger traffic. the configuration of a railroad bridge the information required by 49 CFR part that affects the load capacity of the 211, which prescribes rules of practice Section 237.33 Content of Bridge bridge, while ‘‘bridge repair’’ means that apply to waiver proceedings. The Management Programs remediation of damage or deterioration processing of petitions for waiver of Certain elements of a bridge which has affected the structural safety rules is found at subpart C to part management program are essential to its integrity of a railroad bridge. This part 211. effectiveness. Those elements are requires that modifications and repairs Subpart B—Railroad Bridge Safety enumerated in this section. Track to bridges be designed by railroad bridge Assurance owners and individuals responsible for engineers, and the work supervised by the safety of railroad bridges are designated railroad bridge supervisors. This subpart prescribes minimum encouraged to adapt these elements to This definition clarifies that minor requirements for persons responsible for the needs of their areas of responsibility, modifications and repairs, such as railroad bridges to implement programs and to adopt additional elements not replacing a wire rope handrail with one to assure the structural integrity of those inconsistent with the requirements of made of pipe, or painting a bridge, do bridges and to protect the safe operation this part. not need to be designed and supervised of trains over those bridges. The Paragraph (a). Congress mandated that pursuant to this part. However, this responsibility for the safety of a railroad the new regulations require each track does not exempt the track owner from bridge rests with the owner of the track owner to ‘‘develop and maintain an properly supervising the personal safety supported by that bridge, who relies accurate inventory of its railroad of the individuals performing the work upon the work of the engineer who bridges, which shall identify the

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location of each bridge, its owner’s bridge management program applicable procedures and frequency, configuration, type of construction, contain a bridge inspection program. and reviews any items noted by an number of spans, span lengths, and all Items (1) through (6) should be inspector as exceptions. See Section other information necessary to provide addressed in the program to a degree 417(b)(7) of the RSIA. Railroad bridge for the safe management of the bridges.’’ that promotes effective and efficient engineering is based on the same Section 417(b)(1), Public Law 110–432, conduct of the inspection program. With principles of engineering as all other 122 Stat. 4890 (49 U.S.C. 20103, note). regard to item (1), bridge inspection can structural engineering work, but the This paragraph requires that such an present certain risks that are inherent in application of many of those principles inventory be maintained. An accurate working at heights and around moving is unique to this particular field. The inventory of any property to be managed vehicles. A bridge inspection program live loads carried on railroad bridges are is essential so that the responsible should at least address the unique generally much higher than the loads on individuals may schedule and track hazards associated with the process. highway bridges or other transportation inspection, maintenance, and repair of With regard to item (2), a bridge structures. Overall configuration and the property units. inspection program should incorporate details of construction of railroad Paragraph (b). Congress mandated that standards for the procedures and bridges differ greatly from other classes the new regulations require that the required details of any different types of of structures, to the extent that dealing track owner ‘‘maintain, and update as inspection that are referenced in the with these features requires some appropriate, a record of the safe capacity program, such as annual inspections, experience with them as well as an of each bridge which carries its track post-event inspections, rating understanding of the fundamentals of and, if available, maintain the original inspections, and intermediate periodic engineering. design documents of each bridge and a inspections. A large railroad might find FRA understands that not all railroad documentation of all repairs, it convenient to describe the standard bridge engineers will be faced with all modifications, and inspections of the procedures for various types of aspects of railroad bridge engineering. bridge.’’ Section 417(b)(3), Public Law inspections in some detail, while a For example, an engineer engaged to 110–432, 122 Stat. 4890 (49 U.S.C. small railroad that normally conducts prescribe safe loads for short steel spans 20103, note). This paragraph requires only annual inspections might describe and timber trestles on a particular that a record of the safe load capacity of only that procedure as well as post- railroad might never have to perform a each bridge be established. The event special inspections, and then detailed analysis of a large truss bridge. operation of excessively heavy loads issue instructions of particular The basic premise is that the engineer over a bridge will seriously shorten a applicability for other types of be competent to perform the functions bridge’s useful life and will reduce or inspections that occur only that are encompassed by that even eliminate the margin of safety infrequently. With regard to items (3) individual’s employment. The between structural integrity and through (6), use of a standard method of determination of qualifications by the catastrophic failure. It is essential that describing the condition of components track owner includes employment of the the track owner should know that the promotes effective and efficient engineer by the track owner, and loads permitted to be operated on a communication between the inspector designation of the engineer to exercise bridge are within the safe limits of the and those persons who review and the authority called for in this part. By bridge. evaluate a bridge using information employment, FRA includes both Paragraph (c). The track owner must from the inspection. engineers who are employees of the obtain and maintain the design track owner as well as those engaged documents of each bridge, if available, Subpart C—Qualifications and under a consulting contract. and document all repairs, modifications, Designations of Responsible Persons A railroad bridge engineer must also and inspections of each bridge. The In subpart C, FRA establishes have either: (1) A degree in engineering determination of safe load capacity minimum standards for incorporation in granted by a school of engineering with requires knowledge of the configuration railroad bridge management programs at least one program accredited by of the bridge and the materials of which for qualification and designations of ABET, Inc. or its successor organization, it is constructed. Although the persons who perform safety critical as a professional engineering configuration may be determined by functions that affect the integrity and curriculum, or a degree from a program actual measurements of all of the safety of railroad bridges. Many aspects accredited as a professional engineering components, that procedure can be of railroad bridge work differ from other curriculum by a foreign organization tedious and expensive. Good fields of engineering, inspection and recognized by ABET, Inc. or its documentation of the design and history maintenance. It is essential that the successor; or (2) current registration as of a bridge will facilitate more rapid and individuals who are responsible for a professional engineer. accurate determination of bridge these safety-critical functions be FRA believes that the critical nature capacity when such calculations are qualified by education, training and of railroad bridge engineering work needed, as well as determination of the experience to perform them correctly. called for in this rule requires persons maintenance and service history of a to meet a minimal educational or bridge to detect and correct possible Section 237.51 Railroad Bridge experience standard which is common deterioration of its components. If the Engineers to the engineering profession and which design documents for a bridge cannot be This section sets forth the minimum is necessary for an individual who will located, the track owner must measure standards that a railroad bridge engineer perform the functions of an engineer as and document the configuration of the must meet. Congress directed FRA to called for in this rule. bridge in sufficient detail to enable an ‘‘ensure that an engineer who is In paragraph (c), FRA states that accurate determination of the safe competent in the field of railroad bridge nothing in this part affects the States’ capacity of the bridge. engineering’’ is responsible for the authority to regulate the professional Paragraph (d). Bridge inspection is development of all inspection practice of engineering. This section absolutely essential to an effective procedures, reviews all inspection represents a minimum standard to be bridge management program. In this reports, and determines whether bridges attained by engineers who perform the paragraph, FRA requires that the track are being inspected according to the functions called for in this regulation.

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Recognition by FRA as a railroad bridge maintenance personnel to authorize the Paragraph (c). In the RSIA, Congress engineer would not enable a person to operation of trains on bridges following mandated that a professional engineer provide professional engineering repairs, damage, or indications of competent in the field of railroad bridge services in violation of a state law or potential structural problems. See engineering, or a qualified person under regulation. FRA does not intend to Section 417(b)(8), Public Law 110–432, the supervision of the track owner, preempt or interfere with any state laws 122 Stat 4890 (49 U.S.C. 20103, note). In determine bridge capacity. See Section regarding the professional practice of this section, FRA requires that each 417(b)(2), Public Law 110–432, 122 Stat. engineering. For example, a person track owner designate certain 4890 (49 U.S.C. 20103, note). Load registered as a professional engineer in individuals as qualified railroad bridge capacity determination in most Maryland could not work as a engineers, inspectors, and supervisors, instances requires the education, professional engineer in Virginia under and provide a recorded basis for each experience and training of an engineer this regulation in violation of Virginia designation in effect. The track owner who is familiar with railroad bridges law if such work violated Virginia law must record designations of individuals, and the standard practices that are regarding the practice of engineering. whether employees, consultants or unique to that class of structure. contractors. If a consultant or contractor The present standard references for Section 237.53 Railroad Bridge has several individuals performing the railroad bridge design and analysis are Inspectors described functions then one or more found in the ‘‘Manual for Railway In this section, FRA establishes the individuals should be designated as Engineering’’ of the American Railway minimum standards that a railroad being responsible to the track owner for Engineering and Maintenance-of-Way bridge inspector must meet. Effective the work performed under that Association (AREMA). The chapters in inspection of bridges is essential to engagement, with the others working this Manual dealing with Timber, preserving their integrity and under the responsible charge of that Concrete and Steel structures, and serviceability. Inspectors must be able to individual. Seismic Design, are under continuous understand and carry out the inspection review by committees consisting of procedures, including accessing Subpart D—Capacity of Bridges leading engineers in the railroad bridge inspection points on a bridge, In subpart D, FRA prescribes profession, including representatives of measuring components and any minimum standards to be incorporated FRA. Although bridges exist that were changes, describing conditions found in in railroad bridge management programs designed using different or earlier a standard, unambiguous manner, and to prevent the operation of equipment references, they can still be evaluated by detecting the development of conditions that could damage a bridge by exceeding use of the AREMA Manual. that are critical to the safety of the safe stress levels in bridge components Paragraph (d). This paragraph permits bridge. It is essential that an inspector or by extending beyond the horizontal bridge load capacity to be determined who detects a potential hazard to the or vertical clearance limits of the bridge. from existing design and modification safe operation of trains be authorized by Protection of bridges and bridge records of a bridge, provided that the the track owner to place appropriate components from overstress is essential bridge substantially conforms to its restrictions on the operation of railroad to the continued integrity and records configuration. Determination of traffic, pending review as necessary by serviceability of the bridge. It is also bridge load capacity requires a railroad bridge engineer. An essential that equipment or loads that information on the configuration of the individual who is not competent in exceed the clearance limits of a bridge bridge and the dimensions and material railroad bridge work cannot overrule a not be operated owing to the potential of its component parts. If the bridge is determination made by a designated for severe damage to the bridge. found to conform to the drawings of its original design and modifications, those bridge inspector, supervisor, or Section 237.71 Determination of drawings may serve as the basis for any engineer. Bridge Load Capacities rating calculation that might be Section 237.55 Railroad Bridge Paragraph (a). Each track owner must performed, thus simplifying the process. Supervisors determine the load capacity of each of Lacking that prior information, it is In this section, FRA establishes its railroad bridges. It is essential that necessary that the configuration, minimum standards that a railroad the track owner know that loads dimensions, condition and properties of bridge supervisor must meet. operated over a bridge do not exceed the the bridge and its components be Individuals who supervise and take safe capacity of that bridge. However, determined by on-site measurement of responsibility for construction, repair once it is determined that a bridge has the bridge as it currently exists. and modification of railroad bridges adequate capacity to carry the loads FRA recognizes that a rigorous, exact must be competent to ensure that the being operated, the regulation does not method of rating is not practicable with work is performed in accordance with require that the track owner precisely several types of bridges, including some valid standards and any specific calculate the additional capacity of that massive concrete or masonry bridges specifications, plans and instructions bridge, although that could be useful and many timber trestles. The railroad applicable to the work to be performed. from a planning or economic bridge engineer will necessarily use This provision applies to any such standpoint. judgment in determining the loads individual, regardless of job title, who Paragraph (b). This paragraph requires which should be permitted to operate directly oversees such work and that the load capacity of each bridge be over these bridges, and assuring that approves or restricts the movement of documented in the track owner’s bridge adequate inspections are performed so railroad traffic during the progress of the management program, together with the that any developing deterioration or work. method by which the capacity was signs of overload are detected before determined. Once the load capacity is they progress to become a serious Section 237.57 Designations of determined, the value must be recorded problem. Individuals in order for it to be useful. Examples of Paragraph (e). In this paragraph, FRA In the RSIA, Congress mandated that methods of determination could be the requires a track owner to schedule the the bridge regulations designate original design documents, evaluation of bridges for which the load qualified bridge inspectors or recalculation, or rating inspection. capacity has not already been

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determined. This section provides for a period without damaging the bridge. In information to any restrictions placed phase-in period for determination of some cases, mostly involving steel or on the movement of that equipment. bridge capacities. There is probably not iron bridges, a higher rating, up to a Paragraph (c). In this paragraph, FRA sufficient engineering expertise maximum rating, can be given to the states that the instructions regarding available in the United States for bridge to permit the operation of heavier dimensions shall be expressed in terms immediate rating of all unrated railroad loads on an infrequent basis. These of feet and inches of cross section and bridges. This will provide a reasonable heavier loads should not, in themselves, equipment length, in conformance with time period for track owners to damage the bridge, but the cumulative common railroad industry practice for accomplish this work. It is intended that effect of the higher resulting stresses in reporting dimensions of exceptional the unrated bridges be given relative bridge members could cause their equipment in interchange in which priority for rating, based on the eventual deterioration. height above top-of-rail is shown for judgment of a railroad bridge engineer. Paragraph (h) also states that each cross section measurement, This prioritization can be accomplished operation of equipment that produces followed by the width of the car or the either by observation or by evaluation of forces greater than the normal capacity shipment at that height. In the industry, certain critical members of a bridge, as shall be subject to any restrictions or a standard format exists for the determined by the engineer using conditions that may be prescribed by a exchange of information on dimensions professional judgment. railroad bridge engineer. A railroad of railroad equipment. This standard Paragraph (f). A new capacity must be bridge engineer can often prescribe practice is practical, even if it is not determined by a railroad bridge compensating conditions that will intuitive. Use of the industry practice is engineer when a bridge inspection permit the movement of equipment that necessary to avoid error and confusion. record reveals that the condition of a is heavier than normal. Examples Paragraph (d). In this paragraph, FRA bridge or a bridge component might include speed restrictions to reduce the states that the instructions may apply to affect the load capacity of the bridge. impact factor of the rolling load, the individual structures or to a defined line Accurate determination of current insertion of lighter-weight spacer cars segment or groups of line segments bridge capacity depends on accurate between the heavier cars in a train, or where the published capacities and information about the current the installation of temporary bents or dimensions are within the limits of all configuration and condition of the other supports under specific points on structures on the subject line segments. bridge. The railroad bridge engineer the bridge. Railroads commonly issue instructions might determine that a change in Section 237.73 Protection of Bridges related to equipment weights and condition or configuration calls for a From Over-Weight and Over-Dimension dimensions to be effective on line revised rating calculation. Paragraph (g). In this paragraph, FRA Loads segments of various lengths. It is not states that bridge load capacity may be Bridges can be seriously damaged by necessary that transportation personnel expressed in terms of numerical values the operation of loads that exceed their be advised of the capacity of every related to a standard system of bridge capacity. Movement of equipment that bridge as long as each bridge in the line loads, but shall in any case be stated in exceeds the clear space on a bridge is an segment has the capacity to safely carry terms of weight and length of individual obvious safety hazard. In this section, the loads permitted on that line. or combined cars and locomotives, for FRA addresses Congress’ mandate in the Subpart E—Bridge Inspection the use of transportation personnel. RSIA that the track owner ‘‘develop, Engineers use standard definitions of maintain, and enforce a written In subpart E, FRA establishes loading combinations for design and procedure that will ensure that its minimum standards to be incorporated rating of bridges. Common among these bridges are not loaded beyond their into railroad bridge management standard definitions is a series of capacities.’’ See Section 417(b)(4), programs to provide for an effective proportional loads known as the Cooper Public Law 110–432, 122 Stat. 4890 (49 program of bridge inspections. System. The capacity of a bridge and its U.S.C. 20103, note). Bridge inspection is a vital components can be described in terms Paragraph (a). In this paragraph, FRA component in any bridge management of a Cooper Rating, and the effect of rail requires that each track owner issue program. A bridge with undetected or equipment on a bridge can also be instructions to its personnel who are unreported damage or deterioration can related to a Cooper System value. responsible for the configuration and present a serious hazard to the safe Proper application of this system operation of trains over its bridges to operation of trains. Bridge inspection requires a full understanding of its use prevent the operation of cars, and evaluation is a multi-tiered process, and limitations. However, the results of locomotives and other equipment that unlike many other types of inspection its application can be translated into would exceed the capacity or on a railroad. While track, equipment terms of equipment weights and dimensions of its bridges. and signal inspectors usually can configurations that can be effectively Transportation personnel of a railroad compare measurements against common applied by persons who manage regular are ultimately responsible for the standards to determine whether the transportation operations of the railroad. movement of trains, cars and inspected feature complies with the This enables them to determine if a locomotives. It is essential that they standards, such is not the case with given locomotive, car, or combination should know and follow any restrictions most bridges. The evaluation of a bridge can be operated on a bridge with no that are placed on those movements. requires the application of engineering further consideration, or if the Paragraph (b). In this paragraph, FRA principles by a competent person, who equipment must be evaluated as an states that the instructions regarding is usually not present during the exceptional movement. weight shall be expressed in terms of inspection. It is therefore necessary that Paragraph (h). FRA states that bridge maximum equipment weights, and an inspection report should show any load capacity may be expressed in terms either minimum equipment lengths or conditions on the bridge that might lead of both normal and maximum load axle spacing. Transportation personnel to a reduction in capacity, initiation of conditions. Normal bridge ratings have information on the weights and repair work, or a more detailed generally define the loads that can be configuration of cars and locomotives, inspection to further characterize the operated on a bridge for an indefinite and they must be able to relate that condition.

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Section 237.101 Scheduling of Bridge of a bridge to be performed whenever that the bridge inspection procedures Inspections the bridge is involved in an event which must ensure that the level of detail and Paragraph (a). In this paragraph, FRA might have compromised the integrity the inspection procedures are establishes regulations to address of the bridge, including flood, fire, appropriate to the configuration of the Congress’ mandate that the track owner earthquake, derailment, or other bridge. Additionally, the bridge ‘‘conduct regular comprehensive vehicular or vessel impact. It is essential inspection procedures must be designed inspections of each bridge, at least once that railroad traffic be protected from to detect, report and protect every year, and maintain records of possible bridge failure resulting from deterioration and deficiencies before those inspections that include the date damage from an event caused by natural they present a hazard to safe train on which the inspection was performed, or non-railroad agents. The track owner operation. The responsibility for should have in place a means to receive adequate inspection remains with the the precise identification of the bridge notice of such an event, including track owner, with the conditions inspected, the items inspected, and weather and earthquakes, and a prescribed by a railroad bridge engineer. accurate description of the condition of procedure to conduct an inspection The inspection regimen for every bridge those items, and a narrative of any following such an event. should be determined from its inspection item that is found by the Paragraph (d). In this paragraph, FRA condition, configuration, environment, inspector to be a potential problem.’’ states that any railroad bridge that has and traffic levels. The instructions for Section 417(b)(5), Public Law 110–432, not been in railroad service and has not bridge inspection may be both general, 122 Stat. 4890 (49 U.S.C. 20103, note). been inspected in accordance with this as by bridge type or line segment; and Annual inspection of bridges has been section within the previous 540 days specific, as needed by particular an industry practice for over a century, must be inspected and the inspection considerations for an individual bridge. and has proven to be an effective tool report reviewed by a railroad bridge ASLRRA commented that the rule of bridge management. Even where a engineer prior to the resumption of provides that a railroad bridge engineer bridge sees very low levels of railroad railroad service. The inspection must direct programs, review traffic, the potential still exists for frequency requirements of this section inspections, record procedures, and damage from external sources or natural do not apply to bridges that are not in undertake other similar steps. ASLRRA deterioration. This paragraph calls for railroad service. FRA notes that suggests that this seems to imply the one inspection per calendar year, with although inspections are not required on railroad must have a railroad bridge not more than 540 days between out-of-service railroad bridges, state law engineer capable of designing a bridge successive inspections. Both criteria regarding responsibility for damage to on staff or employed as a consultant apply. For example, if a bridge is outside parties that might be caused by each time an inspection is made. inspected on January 3, 2011, it the condition of the bridge is not ASLRRA contends that a railroad becomes overdue for inspection on June affected. If a bridge not in service has supervisor can implement a program, 27, 2012, 541 days later. If it is been inspected within the 540 day review the inspection, audit a program, inspected on December 18, 2011, it period, the track owner may accept that and assess whether a bridge inspection becomes overdue on January 1, 2013, inspection and begin railroad service, exception needs to go to a railroad since it was not inspected in calendar subject to any determination in that bridge engineer for review. year 2012. regard by a railroad bridge engineer. The FRA responds that a bridge inspection One commenter requested that FRA inspection period would date from the program can be established by a railroad clarify what constitutes a yearly last inspection, with no credit for out- bridge engineer, either as an employee inspection. The commenter asked if this of-service time. of or as a consultant to the track owner. means a ‘‘hands-on’’ type of inspection, The engineer is not required to be on or a routine cursory type of inspection. Section 237.103 Bridge Inspection site, or even on the property, during an FRA responds that the rule does not Procedures inspection. A primary purpose of the prescribe an inspection procedure; that In this section, FRA requires that each audit procedure called out below is to decision is left to the railroad bridge bridge management program specify the permit the railroad bridge engineer to engineer. It is quite likely that the procedure to be used for inspection of review and monitor the effectiveness of engineer might prescribe varying levels individual bridges or classes and types the bridge inspection program that has of detail for inspections performed at of bridges. As mandated by the RSIA, been conducted under his overall different periods, depending on the FRA states that the bridge inspection charge. configuration and condition of the procedures must be as specified by a bridge. railroad bridge engineer who is Section 237.105 Special Inspections Paragraph (b). In this paragraph, FRA designated as responsible for the Paragraph (a). In this paragraph, FRA states that a bridge shall be inspected conduct and review of the inspections. requires that each bridge management more frequently than the period See Section 417(b)(7)(A), Public Law program prescribe a procedure for referenced in paragraph (a), above, 110–432, 122 Stat 4890 (49 U.S.C. protection of train operations and for when a railroad bridge engineer 20103, note). In the RSIA, Congress also inspection of any bridge that might have determines that such inspection mandated that the bridge safety been damaged by a natural or accidental frequency is necessary. The regulations must ‘‘ensure that the level event, including flood, fire, earthquake, responsibility for adequate inspection of detail and the inspection procedures derailment or vehicular or vessel remains with the track owner, with the are appropriate to the configuration of impact. It is essential that railroad traffic conditions prescribed by a railroad the bridge, conditions found during the be protected from possible bridge failure bridge engineer. The inspection regimen previous inspections, and the nature of caused by damage from an event caused for every bridge should be determined the railroad traffic moved over the by natural or non-railroad agents. The from its condition, configuration, bridge, including car weights, train track owner should have in place a environment, and traffic levels. frequency and lengths, levels of means to receive notice of such an Paragraph (c). FRA requires that each passenger and hazardous materials event, including weather conditions and bridge management program define traffic, and vulnerability of the bridge to earthquakes, and a procedure to conduct requirements for the special inspection damage.’’ Accordingly, FRA requires an inspection following such an event.

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Paragraph (b). In this paragraph, FRA bridge inspection be placed in the location designated in the bridge requires that each bridge management location designated by the bridge management program within 120 days program provide for the detection of management program within 30 of the completion of the field portion of scour or deterioration of bridge calendar days of the completion of the the inspection. A bridge inspection is components that are submerged or field portion of the inspection. The not complete until the report of the subject to water flow. The condition of initial report must include the inspection is filed and available to the bridge components located underwater information delineated in paragraph persons who are responsible for the is usually not evident from above. (c)(1) through (c)(5). The actual conduct management of the bridges inspected. Means to determine their condition of the inspection should be reported and This time period does not include the might be as simple as using measuring recorded, showing the fact that the time used by a consultant or in-house rods from the surface, or might call for bridge was actually inspected on a engineering group to complete an periodic or special diving inspection. certain date, the type of inspection analysis of the results of the inspection, Advanced technology might also performed, by whom it was performed, and it is not expected that the analysis provide devices that can be used to and whether or not any critical need be completed within that time determine underwater conditions. conditions were detected. Inspection period. In cases where a detailed Maryland DOT requested that FRA and reporting procedures vary widely analysis is required, FRA intends that provide advice on a required inspection among different railroads and the inspection report on which the frequency for the underwater circumstances. In many cases, analysis is based would be separated inspection, noting that FHWA requires especially on larger railroads, an from the analysis and filed within the underwater inspections at least once in inspector would prepare the report required time frame. every five years. FRA responds that the before leaving the bridge. The reports Paragraph (f). This paragraph requires rule does not prescribe a particular might be forwarded by mail, by that each bridge inspection program frequency for underwater inspections; electronic means, or by hand delivery. specify the retention period and that decision is left to the railroad They might be forwarded daily, weekly, location for bridge inspection records. bridge engineer, to be based on the or even less frequently. In other The retention period must be at least particular conditions at each bridge. circumstances, a consulting engineer two years from the completion of the inspection. A comparison of successive Section 237.107 Conduct of Bridge might be engaged by a small railroad to reports can reveal any accelerating rates Inspections inspect all of the bridges on all or part of the line, and the final report might be of deterioration or degradation of bridge In this section, FRA requires that prepared by the engineering firm after components. Additionally, an audit or bridge inspections be conducted under all of the inspections are completed. review of the effectiveness of a bridge the direct supervision of a designated Similarly, a large railroad might begin a inspection program requires comparison railroad bridge inspector, who shall be comprehensive inspection and of previous inspection reports with the responsible for the accuracy of the evaluation of a large structure that will actual condition of a bridge included in results and the conformity of the take several months to complete. the audit. The practice of comparing inspection to the bridge management FRA recognizes the wide range of previous inspection reports with actual program. Bridge inspections can often time periods required for these various bridge conditions has been followed by require more than one person for safety inspections and reporting procedures, FRA for more than a decade when and efficiency. This provision permits so this provision was developed as a evaluating railroad bridge management others to assist the designated inspector, means for the track owner to track programs. It is a valuable factor in who remains responsible for the results inspection progress, bridge by bridge, determining the effectiveness of a of the inspection. with a simple line item showing: railroad’s program. Section 237.109 Bridge Inspection (1) identification of the bridge Section 237.111 Review of Bridge Records inspected; Inspection Reports (2) date of completion of the In this section, FRA requires that each inspection; The RSIA requires that an engineer track owner to which this part applies (3) identification of the inspector; who is competent in the field of railroad keep a record of each inspection (4) type of inspection performed; and bridge engineering reviews all required to be performed under this (5) indication on the report as to inspection reports and determines part. A bridge inspection has little value whether any item noted thereon whether bridges are being inspected unless it is recorded and reported to the requires expedited or critical review by according to the applicable procedures individuals who are responsible for the a railroad bridge engineer, and any and frequencies, and reviews any items ultimate determination of the safety of restrictions placed at the time of the noted by an inspector as exceptions. See the bridge. Bridge inspectors may use a inspection. Section 417(b)(7), Public Law 110–432, variety of methods to record their These five items can usually be listed 122 Stat. 4890 (49 U.S.C. 20103, note). findings as they move about the bridge. on a single line of a report. The initial In this section, FRA requires responsible These include notebooks, voice report might include all of the bridges railroad bridge supervisors and railroad recordings, having another individual inspected by one individual in a week bridge engineers to review bridge transcribe notes, and photographs. or two. FRA does not anticipate that the inspection reports. Bridge inspection is These notes and other items are usually initial or summary report include all of usually a multi-tiered procedure. The compiled into a prescribed report format the data called for in the bridge inspector reports on the conditions at the end of the day or at the management program, together with any noted in the inspection, but an engineer conclusion of the inspection. In narrative descriptions necessary for the will necessarily evaluate those noted paragraph (c), FRA delineates the correct interpretation of the report. This conditions and determine what, if any, essential elements that must be information would be included in the further action is required. addressed and reported in any bridge complete inspection report. The regulation does not require that a inspection. Paragraph (e). In this paragraph, FRA railroad bridge engineer review every Paragraph (d). In this paragraph, FRA requires that a complete report of each inspection report, so long as the requires that an initial report of each bridge inspection shall be placed in the responsible management personnel keep

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track of the conduct of inspections to which would immediately compromise One commenter asked if FRA would see that they are performed in the structural integrity of the bridge. object to a track owner designating a accordance with the schedule and other One commenter notes that the contractor’s foreman as the bridge requirements of this rule and the proposed rule requires that while all supervisor qualified to return a bridge to railroad’s program. It should be a simple bridge work that eliminates a service at the end of each work window. matter for the inspector to indicate on deteriorated condition requires design The commenter also stated that small a report whether or not the report would by a bridge engineer, for many railroads that do not have a bridge require higher-level or engineering situations ranging from cracked flange engineer may have to designate their review. The engineering staff would angles to failed timber caps, a simple engineering consultant as the bridge review the reports that indicate component change-out is the most supervisor whose full-time presence on problems or issues for them to resolve. effective repair. These types of repairs a job will be expensive and will take Section 237.153, ‘‘Audits of have historically been performed by money away from repairs. FRA inspections,’’ includes a provision for bridge forces without the benefit of responds that the proposed regulation sampling of routine inspection reports formal design oversight. The commenter does not specify the employment to assure that the inspectors are suggested that each track owner should relationship between the track owner properly identifying reports that require determine what repairs require the and a bridge supervisor. A contractor review. oversight of an engineer. employee or a consultant may be so FRA understands this concern, and designated. It is necessary, however, Subpart F—Repair and Modification of has modified § 237.131 to read, in part, that a qualified individual be Bridges that ‘‘[e]ach repair or modification responsible for the proper and safe In subpart F, FRA establishes which materially modifies the capacity performance of work on a bridge, and of a bridge or the stresses in any primary minimum standards to be incorporated that the individual be authorized to load-carrying component of a bridge in railroad bridge management programs perform the actions necessary to fulfill shall be designed by a railroad bridge to provide for adequate design and that responsibility. engineer.’’ effective supervision of those bridge The comment regarding simple Subpart G—Documentation, Records, modifications and repairs which will component replacement is addressed in and Audits of Bridge Management materially modify the capacity of the the last sentence of the paragraph, Programs bridge or the stresses in any primary which states that designs and Documentation is essential to any load-carrying component of the bridge. procedures for repair or modification of effective management program. In This section provides for correct design bridges of a common configuration, subpart G, FRA establishes minimum and adequate supervision of repair and such as timber trestles, or instructions standards to be incorporated in railroad modification of bridges where the work for in-kind replacement of bridge bridge management programs to provide could materially affect the capacity of components, may be issued as a for verification of the effectiveness of the bridge, or its continued integrity. common standard. Although it may be the program and the accuracy of the FRA does not intend that minor repairs a standard procedure, the standard information developed thereby, by the that do not affect the capacity of the should be designed and issued by a track owner and by FRA to evaluate bridge must be designed by an engineer, qualified railroad bridge engineer. compliance with this regulation. but the supervision of that work should be performed by a person who is Section 237.133 Supervision of Section 237.151 Audits; General Repairs and Modifications competent to assure that the work does In this section, FRA requires that each not inadvertently compromise the This section requires that each repair program adopted to comply with this integrity of the bridge. For instance, arc or modification pursuant to this part part include provisions for auditing the welding handrails to the members of a shall be performed under the immediate effectiveness of the several provisions of through truss might appear to some to supervision of a railroad bridge that program, including the validity of be a minor repair, but it could seriously supervisor as defined in § 237.55 of this bridge inspection reports and bridge compromise the structural integrity of part who is designated and authorized inventory data, and the correct the bridge. by the track owner to supervise the application of movement restrictions to Section 237.131 Design particular work to be performed. railroad equipment of exceptional Modifications and repairs which weight or configuration. Effective Design of entire railroad bridges, materially modify the capacity of the management of a safety-critical program modifications and repairs which bridge or the stresses in any primary such as this requires an adequate level materially modify the capacity of the load-carrying component of the bridge of checks to assure that the requisite bridge or the stresses in any primary must be performed according to the work is being performed correctly. load-carrying component of the bridge specific or general specifications and require the intelligent application of the instructions issued by a railroad bridge Section 237.153 Audits of Inspections principles of engineering and can be engineer. Particularly when trains are FRA has found over the years during performed only by an engineer with permitted to pass over a bridge which is which it has conducted evaluations of training and experience in the field of being repaired or modified, the railroad bridge programs that one of the railroad bridges. Railroads have supervisor at the bridge must be able to most important indicators of the typically issued standard instructions make the necessary determination to effectiveness of a program is a for the performance of common either permit, restrict or halt train comparison of recent bridge inspection maintenance repairs, such as operation depending on the state of the reports against actual conditions found replacement or upgrading of bridge. As this part does not specify the at the subject bridges. This is components of timber trestles. This employment relationship between the fundamental to an effective audit of a section specifically permits such a track owner and the bridge supervisor, bridge management program. Therefore, practice. For purposes of this part, a the track owner may designate a in this section, FRA states that each primary load-carrying component is a contractor or a consultant as the bridge bridge management program incorporate railroad bridge component, the failure of supervisor. provisions for an internal audit. Each

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bridge management program shall employees who use the system on the The Administrator reserves the right to incorporate provisions for an internal proper use of the system; and maintain assess a penalty of up to $100,000 for audit to determine whether the an information technology security any violation where circumstances inspection provisions of the program are program adequate to ensure the integrity warrant. See 49 CFR part 209, appendix being followed, and whether the of the system, including the prevention A. program itself is effectively providing of unauthorized access to the program for the continued safety of the subject logic or individual records. VI. Regulatory Impact and Notices bridges. Additionally, the inspection Additionally, the integrity of the A. Executive Order 12866 and DOT audit shall include an evaluation of a bridge inspection records must be Regulatory Policies and Procedures protected by a security system that representative sampling of bridge This final rule has been evaluated in inspection reports at the bridges noted incorporates user identity and accordance with existing policies and on the reports to determine whether the password, or a comparable method, to procedures and determined to be non- reports accurately describe the establish appropriate levels of program significant under both Executive Order condition of the bridge. and record data access meeting all of the following standards: no two individuals 12866 and DOT policies and Section 237.155 Documents and can have the same electronic identity; a procedures. See 44 FR 11034; February Records record cannot be deleted or altered by 26, 1979. FRA has prepared and placed In this section, FRA requires each any individual after the record is in the docket a regulatory impact track owner required to implement a certified by the employee who created analysis addressing the economic bridge management program and keep the record; any amendment to the impacts from this final rule. records under this part to make those record must either be electronically As part of the regulatory impact program documents and records stored apart from the record it amends, analysis FRA has assessed quantitative available for inspection and or electronically attached to the record measurements of the cost and benefit reproduction by FRA. This section as information without changing the streams expected from the adoption of addresses Congress’ mandate in the original record; each amendment to a this final rule. For the 20-year period RSIA to establish a program to record must uniquely identify the the estimated quantified costs total periodically review bridge inspection person making the amendment; and the $164.2 million, and have a present value and maintenance data from railroad electronic system must provide for the (PV, 7%) of $84.4 million. For the same carrier bridge inspectors and FRA bridge maintenance of inspection records as period of time the estimated quantified experts. See Section 417(d), Public Law originally submitted without corruption benefits total $19.4 million and have a 110–432, 122 Stat. 4890 (49 U.S.C. or loss of data. PV(7%) of $9.8 million. These benefits 20103, note). As in the case of all Two commenters expressed a general are exclusive of long-term efficiencies to railroad safety regulations, FRA has an concern that the security provisions of the railroads with respect to enforcement responsibility. FRA will the proposed rule would preclude the conservation of the capital value of the require access to the vital documents modification of permanent bridge structures in question. Very often and records of the various bridge records, such as the inventory itself. As targeted repairs or restoration at an early management programs to enable it to FRA responds that was not the intent, stage in the deterioration of a bridge carry out that responsibility. the final rule has been modified so that may significantly extend the useful life Paragraphs (a) and (b). In these the data security provisions apply only of a bridge. The benefits also do not paragraphs, FRA establishes minimum to bridge inspection records. consider the potential for a catastrophic standards for electronic record-keeping event resulting in a bridge failure and provisions that a track owner may elect Appendix A to Part 237—Supplemental consequent fatalities to railroad to utilize to comply with the record- Statement of Agency Policy on the personnel, rail passengers, or persons keeping provisions of this part. FRA Safety of Railroad Bridges underneath the bridge. Although FRA recognizes the growing prevalence of A Statement of Agency Policy on the has verified through its bridge program electronic records, and acknowledges Safety of Railroad Bridges was originally that most railroads properly manage the unique challenges that electronic published by FRA in 2000 as Appendix their bridges most of the time, in the transmission, storage, and retrieval of C of the Federal Track Safety Standards, recent past FRA has also determined records can present. To allow for future 49 CFR part 213. With the issuance of circumstances—even on Class I advances in technology, FRA is 49 CFR part 237, Bridge Safety railroads—where proper inspections or establishing electronic record storage Standards, certain non-regulatory repairs have been inappropriately provisions in these paragraphs that are provisions in that Policy Statement have deferred. Accordingly, this final rule technology-neutral. been incorporated in that regulation. offers the opportunity to capture and For purposes of complying with the However, FRA has determined that extend the current heightened attention record-keeping requirements of this other non-regulatory items are still to bridge management achieved through part, a track owner may create and useful as information and guidance. industry and FRA efforts over the past maintain any of the required records Those provisions of the Policy several years. through electronic transmission, storage, Statement are therefore retained and B. Regulatory Flexibility Act and and retrieval, provided that certain placed in this Appendix in lieu of their conditions are met. Not only must the Executive Order 13272; Final Regulatory former location in the Track Safety Flexibility Assessment system used to generate the electronic Standards. records meet all of the requirements of The Regulatory Flexibility Act (5 this subpart and the records contain all Appendix B to Part 237—Schedule of U.S.C. 601 et seq.) and Executive Order of the information required by this Civil Penalties 13272 require a review of proposed and subpart, but the track owner must also: Consistent with FRA’s Statement of final rules to assess their impacts on monitor the electronic database through Agency Policy Concerning Enforcement small entities. An agency must prepare a sufficient number of monitoring of the Federal Railroad Safety Laws, a an initial regulatory flexibility analysis indicators to ensure a high degree of the penalty may be assessed against an (IRFA) unless it determines and certifies accuracy of the records; train the individual only for a willful violation. that a rule, if promulgated, would not

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have a significant impact on a of a train accident is usually cost is more excessive (in the range of substantial number of small entities. compounded when a bridge is involved, $4,000 to $5,000 per bridge) for a bridge During the NPRM stage, FRA had not regardless of the cause of the accident. that was inspected on a 2-year cycle. determined whether the proposed rule In 2000, FRA published a final FRA disagrees with this commenter would have a significant economic statement of agency policy for the safety and believes that the cost used in the impact on a substantial number of small of railroad bridges, establishing criteria RIA for the NPRM is appropriate, given entities. Therefore, FRA published an to ensure the structural integrity of IRFA to aid the public in commenting bridges that carry railroad tracks. The its understanding and interpretation of on the potential small business impacts Rail Safety Improvement Act of 2008 the regulatory requirements. In of the proposals in the NPRM. All (RSIA) directs FRA to issue, by October response, FRA emphasizes that its cost interested parties were invited to submit 16, 2009, regulations requiring railroad estimate is an average that includes data and information regarding the track owners to adopt and follow lower cost inspections, such as that of potential economic impact that would specific procedures to protect the safety a wood trestle bridge over a small result from adoption of the proposals in of their bridges. stream, which would be less than the the NPRM. There are more than 100,000 railroad average cost. In addition, this The Regulatory Flexibility Act also bridges in the United States. Federal commenter was basing the higher cost requires an agency to conduct a final regulations offer the benefit of estimate on a more expensive, hands-on regulatory flexibility assessment (FRFA) uniformity that would allow railroads detailed bridge inspection process unless it determines and certifies that a that operate in more than one State to required on a 2-year frequency for rule is not expected to have a significant develop and implement a single highway bridges by FHWA. Finally, this impact on a substantial number of small management program that would apply commenter was providing comments entities. FRA is not able to certify that to all of its railroad bridges, supporting related to experiences with inspecting a the final rule will not have a significant one or more tracks, rather than several population of large highway bridges. For economic impact on a substantial programs tailored to meet the different these reasons, FRA has not modified its number of small entities due to requirements of each different State or cost estimate for bridge inspections. insufficient information. FRA did not local jurisdiction. receive many comments, or data from FRA is issuing this rule to promulgate (3) A Description and an Estimate of the commenters, on the IRFA, and the minimum bridge safety standards as Number of Small Entities to Which the information that was received was not mandated by RSIA, Section 417, Public Rule Will Apply or an Explanation of sufficient to make a determination. Law 110–432, 122 Stat. 4890 (49 U.S.C. Why No Such Estimate Is Available Thus, FRA is publishing this FRFA and 20103, note). will issue a small entity guidance The ‘‘universe’’ of the entities to be document soon. (2) A Summary of the Significant Issues considered generally includes only FRA estimates, primarily based on Raised by the Public Comments in those small entities that are reasonably Response to the IRFA, a Summary of the two facts, that approximately 70 percent expected to be directly regulated by this Assessment of the Agency of Such of the total cost of this rulemaking (see action. Two types of small entities are Issues, and a Statement of Any Changes regulatory impact analysis (RIA)) will be potentially affected by this rulemaking: borne by small entities. First, larger Made to the Proposed Rule as a Result of Such Comments (1) railroads that own track supported railroads generally have more by a bridge, and (2) governmental comprehensive bridge management No comments were received that jurisdictions of small communities that programs and more frequent bridge directly addressed the IRFA. However, a own railroad bridges. inspections. Second, since FRA’s RIA is few comments did address items of cost an overall industry analysis, it is not used in the RIA, which are related to the ‘‘Small entity’’ is defined in 5 U.S.C. immediately obvious that the IRFA for the NPRM. 601 as having the same meaning as incremental cost burden on small ‘‘small business concern’’ under Section (a) Security of Records railroads is proportionally larger than 3 of the Small Business Act. This for larger entities. This is because more In 49 CFR 237.155, FRA proposed includes any small business concern small railroads will have to increase numerous recordkeeping requirements that is independently owned and inspection frequency and enhance their primarily dealing with security. The operated, and is not dominant in its management programs. It should be recordkeeping requirements in the field of operation. Section 601(4) noted that the bridge populations of proposed rule assumed that the includes nonprofit enterprises that are typical small railroads are less complex documents would be kept independently owned and operated, and than those of larger railroads. electronically. One commenter noted are not dominant in their field of Below, FRA provides the rationale it that not all documents for small operations within the definition of used for assessing what impacts would railroads would be maintained that way. ‘‘small entities.’’ Additionally, 5 U.S.C. be borne by small entities. FRA Thus, the final rule has a minor revision 601(5) defines ‘‘small entities’’ as that accommodates bridge inspection considered all comments received in the governments of cities, counties, towns, records that are not electronic. The public comment process when making a townships, villages, school districts, or determination in the FRFA. impact of this minor change will not special districts with populations less This FRFA was developed in cause any cost calculation changes. accordance with the Regulatory than 50,000. (b) Bridge Inspection Cost Flexibility Act. The U.S. Small Business One commenter did not agree with Administration (SBA) stipulates ‘‘size (1) A Succinct Statement of the Need for the average bridge inspection cost that standards’’ for small entities. It provides and Objectives of the Rule the FRA used in its RIA. More that the largest a for-profit railroad As discussed in Section I of the specifically, this commenter mentioned business firm may be (and still classify preamble to this rule, the structural that $750 for the average cost of a bridge as a ‘‘small entity’’) is 1,500 employees integrity of bridges that carry railroad inspection is not realistic. This for ‘‘line-haul operating’’ railroads, and tracks is important because the severity commenter also opined that the actual

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500 employees for ‘‘shortline operating’’ which require cost-sharing and existing generic plan and customize it to meet railroads.1 bridge management programs would their specific circumstances and the SBA size standards may be altered by have to be enhanced to meet the final requirements in this rule. Such Federal agencies in consultation with regulation, there may be some burden initiative would minimize the program SBA and in conjunction with public passed on to small government development cost. Nevertheless, comment. Pursuant to the authority jurisdictions; however, such burden is program implementation costs may be provided to it by SBA, FRA has not expected to be substantial. To the substantial for those small railroads that published a final policy, which formally extent that any burden does result, it is do not currently have bridge establishes small entities as railroads possible that insurance premiums could management programs, and do not that meet the line haulage revenue be adjusted to reflect the risk reduction, inspect railroad bridges regularly. requirements of a Class III railroad.2 resulting in some level of savings in While FRA does recognize that some Currently, the revenue requirements are addition to the cost of the program small railroads do not currently have $20 million or less in annual operating enhancement. This would, of course, be bridge management programs, FRA revenue, adjusted annually for inflation. in addition to safety benefits related to believes that many railroads have The $20 million limit (adjusted fewer accidents. already made (or are making) the annually for inflation) is based on the Accordingly, FRA cannot accurately transition to track structures and bridges Surface Transportation Board’s assess the number of governmental capable of handling 286,000-pound cars threshold of a Class III railroad carrier, jurisdictions of small communities that in line with the general movement in which is adjusted by applying the would be directly impacted by this the industry toward these heavier railroad revenue deflator adjustment.3 regulation and what the impact would freight cars. To protect such The same dollar limit on revenues is be to them. FRA requested comment investments, which are usually quite established to determine whether a from affected governmental jurisdictions significant, railroads are already railroad shipper or contractor is a small as to the impact the proposed rule implementing bridge management entity. FRA proposed to use this would have on them during the NPRM programs. definition for the rulemaking in the comment process. The comments For example, in 2005, the Texas NPRM and received no comments on received during the public comment Transportation Institute reported that 42 that proposal. FRA is using this period of the NPRM did not provide any percent of the shortline railroad miles definition for the final rule. additional data or information on this that were operated in Texas that year issue. (a) Governmental Jurisdictions of Small had already been upgraded, 9 percent Communities (b) Railroads would not need an upgrade, and 47 percent needed upgrading if they Small entities that are classified as There are approximately 687 small wanted to transport any type of 286,000- governmental jurisdictions of small railroads meeting the definition of 4 communities may also be affected by ‘‘small entity’’ as described above. FRA pound shipments. In addition, the this rulemaking. As stated above, and estimates that approximately 95 percent results of a 1998–1999 survey defined by SBA, this term refers to the of these small entities, or approximately conducted by ASLRRA indicated that 41 governments of cities, counties, towns, 653, own track supported by a bridge. percent of respondent shortline townships, villages, school districts, or Because the final rule would apply to all railroads could handle 286,000-pound special districts with populations of less of these small railroads, FRA has rail cars and 87 percent of the than 50,000. The potential impact of concluded that a substantial number of respondent shortline railroads indicated this rulemaking to these entities is such entities would be impacted. Note, that they would need to accommodate 5 related to their ownership of a bridge, however, that approximately 125 of 286,000-pound railcars in the future. and possibly the track supported by the these railroads are subsidiaries of large In addition, at least one Class I bridge as well. Such bridges are usually shortline holding companies with the railroad has arranged for shortline and built by communities, with railroad expertise and resources comparable to regional railroads that connect with it to collaboration, to achieve highway-rail larger railroads. In the IRFA for the send participants to several multiday grade separation. FRA does not have NPRM, FRA estimated a smaller number bridge inspection classes this year. information regarding the number of of subsidiaries, but since then has In general, implementation of the small communities that own such gained more accurate information as to final rule will likely significantly bridges and received no additional the best estimate of how many small burden only a small portion of the small information during the comment railroads are subsidiaries of larger railroads potentially affected. FRA process of the NPRM. corporations. In addition, absent this invited commenters to submit In some cases, however, the rulemaking, most railroads that own information that might assist us in government entity and the railroad track supported by bridges, including assessing the cost impacts on small apportion ownership, expenses, and many of the railroads identified as small railroads of the proposals during the maintenance responsibility according to entities, would to some extent comment process of the NPRM; the provisions of an order from the State voluntarily incur the expense associated however, very little comment was regulatory agency that governs highway with implementation of the bridge received on this matter, and comments and railroad crossing improvements. It management programs in accordance received were not sufficient to allow us is most common for the railroad to with the requirements imposed by FRA to make a determination. retain the responsibility for the actual to address the risk associated with inspection and management of the structural failure of a bridge. In fact, the 4 Jeffrey E. Warner and Manuel Solari Terra, bridge. To the extent that agreements ‘‘Assessment of Texas Short Line Railroads,’’ Texas ASLRRA, which represents most of the Transportation Institute (November 15, 2005). small railroads impacted by this 5 The 10-Year Needs of Short Line and Regional 1 ‘‘Table of Size Standards,’’ U.S. Small Business rulemaking, has developed a model Railroads, Standing Committee on Rail Administration, January 31, 1996, 13 CFR Part 121. bridge management program intended to Transportation, American Association of State See also NAICS Codes 482111 and 482112. Highway and Transportation Officials, Washington, 2 See 68 FR 24891 (May 9, 2003). keep bridge and culvert infrastructure DC (December 1999). This report was based on a 3 For further information on the calculation of the safe and structurally sound. Member survey conducted by the ASLRRA in 1998 and specific dollar limit, please see 49 CFR Part 1201. railroads are expected to take the 1999, with data from 1997.

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(4) A Description of the Projected railroad customization of the program and bridge inspection. For instance, the Reporting, Recordkeeping, and Other would range from $570, for the smaller Tennessee Department of Compliance Requirements of the Rule, Class III railroads, to $3,000 for the Transportation provides significant Including an Estimate of the Classes of larger Class III railroads. Costs grants for such projects to most of the Small Entities That Will Be Subject to associated with maintenance, 20 Class III railroads in the State.6 The the Requirement and the Type of modifications, and updates to bridge Pennsylvania Department of Professional Skills Necessary for management plans will average Transportation administers a matching Preparation of the Report or Record approximately 15 percent of the initial grant program to support freight railroad development cost, or between $85 and The impacts from this rulemaking maintenance and construction costs. $450, annually. Therefore, this reporting FRA believes that small railroads will primarily result from complying requirement will have minimal impact own, or would otherwise be responsible with the requirements for the adoption on small entities. for inspecting, approximately 20,000 of bridge management programs. The Determination of bridge load capacity bridges. FRA estimates that the average final rule provides affected entities 6- to will be made by a bridge engineer. The cost per bridge inspection is $750, and 24-month periods of time in which to engineer is determined by the track that approximately 10,000 bridges are adopt such programs. Class III railroads owner to be competent to perform the being inspected less frequently than will have the full 24-month period from functions necessary for the once a year, while 5,000 are not the effective date of the final rule, determination of load capacity. Bridge inspected at all. Most small railroads unless they have more than 10 inspection procedures would be may own track supported by several scheduled passenger trains per week specified by a railroad bridge engineer bridges, especially in some areas where operating anywhere on their system, in who is designated as responsible for the the terrain requires such structures. FRA which case they would have only 6 conduct and review of the inspections. requested comment regarding the level months. of cost burden that the annual (b) Bridge Inspections (a) Recordkeeping Requirements of inspection would impose. The cost for § 237.33 Bridge management programs will be this requirement was the largest cost in required to contain bridge inspection FRA’s RIA. FRA believes that, of the The requirements in § 237.33 stipulate programs. Subpart E requires calendar railroads which do not presently inspect that each bridge management program year inspections of bridges according to their bridges on an annual basis, most includes an accurate inventory of specified procedures, as well as special are small railroads. railroad bridges; a record of the safe inspection of bridges that might be load capacity of each bridge; a provision damaged by a natural or accidental (c) Determination of Bridge Load to obtain and maintain the design event. This subpart also specifies that Capacities documents of each bridge if available, bridge inspections must be conducted Subpart D requires the determination and to document all repairs, under the direct supervision of a of bridge load capacities. FRA believes modifications, and inspections of each designated bridge inspector. The that railroad bridge owners are generally bridge; and a bridge inspection program inspector is deemed technically aware of bridge load capacities. covering the method of documenting competent to view, measure, report, and Nevertheless, it is likely that some inspections, including standard forms record the condition of a railroad bridge railroads will have to take action to and formats. and its individual components. FRA verify this information in order to FRA believes that most railroads, expects there will be a significant develop the type of documentation regardless of size, already maintain an increase in the number of bridge required by this subpart. Bridge load accurate inventory of their railroad inspections conducted by small capacity information is vital to ensuring bridges, records of the safe load capacity railroads or their contractors or that safe capacity is not exceeded. Small of their bridges, and design documents consulting engineers. FRA requested railroads affected by this requirement to the extent they are available. comments and input regarding the will likely have a consulting engineer Likewise, because it is good business extent to which Class III railroads perform such calculations. Most of the practice to do so, most railroads already conduct annual inspection of bridges that do not already have load maintain documents related to all bridges and the extent to which they capacities calculated are smaller, less repairs, modifications, and inspections would have to conduct additional complex structures. of bridges. The States of Ohio, bridge inspections. FRA did not receive (d) Repair and Modification of Bridges Michigan, and New York have existing any comments or information related to bridge regulations requiring railroads to this request. Subpart F prescribes minimum maintain bridge inventories and inspect Most small railroads do not have standards for bridge modification and bridges annually. There are bridge engineers or inspectors on staff. repair that will materially modify the approximately 100 small railroads that They contract out bridge inspections. A capacity of a bridge or the stresses in operate in those States. However, some typical contract is for the inspection of any primary load carrying component of railroads may not include in their most (if not all) the bridges the railroad the bridge. Modifications and repairs to documentation some of the particular owns, with delivery of a final report bridges (except for minor modifications data items specified in this rule. Thus addressing the state of all bridges. and repairs) will have to be designed by these requirements will impose a Interim reports are provided to the railroad bridge engineers, and the work nominal additional recordkeeping railroad, or the responsible railroad will have to be supervised by designated burden on some small railroads. bridge engineer, to record the fact that bridge supervisors. Small railroads will As noted above, not all small railroads a certain bridge has actually been generally contract out such have inspection programs. ASLRRA, inspected and whether or not any modifications and repairs. As common however, has developed a model significant deficiencies were noted. program for its members, thus Some States provide shortline railroads 6 U.S. General Accounting Office, ‘‘Railroad Bridges and Tunnels, Federal Role in Providing minimizing the burden associated with funding via grants and loans for Safety Oversight and Freight Infrastructure the development of such plans. FRA infrastructure improvements including Investment Could Be Better Targeted,’’ August 2007, estimates that the burden for individual bridge rehabilitation, track maintenance, (GAO–07–770).

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practice, consulting engineers meet the management programs. In consideration concern to small railroads. Of specific design and supervision requirements of of the impact on small railroads that concern to small railroads that own this rule, and competent contractor may not already have such programs, several bridges and contract out the employees may be designated to this schedule generally provides small inspection of these bridges, was the perform the immediate supervision of railroads with an additional 18 months ability to continue to enter into such much of the modification and repair more than Class I carriers, and an contractual agreements structured such work. additional 12 months more than Class II that final inspection reports are (e) Audits carriers, to adopt these programs. submitted as part of a single report at FRA has identified no additional, the completion of the contract, which Each program will have to include significant alternative to this final rule provisions for auditing the effectiveness could span several months. After the that satisfies the mandate of the RSIA or comment period for the NPRM closed, of several provisions of the program, meets the agency’s objective in including the validity of bridge FRA held a 1-day meeting for the promulgating this rule, and that would Working Group to review the comments inspection reports and bridge inventory minimize the economic impact of the data, and the correct application of to the docket. This meeting was held in rulemaking on small entities. As in all Washington, DC, on December 15, 2009. movement restrictions to railroad aspects of this rulemaking, FRA equipment of exceptional weight or At this meeting all comments were requested comments on this finding of configuration. FRA anticipates that reviewed and the Working Group no significant alternative related to Class III railroad audits will generally be small entities. No comments were provided FRA with pertinent input on performed by a company official received relative to the question of what potential issues. This final rule takes following guidance in the ASLRRA alternatives could be provided to small into account the comments and input model program and without assistance entities. provided by the Working Group. from an external financial or engineering auditor. In general, FRA The process by which this final rule C. Paperwork Reduction Act anticipates that the audit process will be was developed provided outreach to The information collection simpler and consume fewer resources small entities. As noted in Section III of for small railroads than for larger this final rule, this rule was developed requirements in this final rule have been railroads. This is because, by the nature in consultation with industry submitted for approval to the Office of of their operations, shortlines will representatives through RSAC, which Management and Budget (OMB) under probably have smaller and less complex includes small railroad representatives. the Paperwork Reduction Act of 1995, bridge populations. On December 10, 2008, RSAC referred 44 U.S.C. 3501 et seq. The sections that to the Working Group, established in contain the new information collection (5) A Description of the Steps the March 2008, the task of developing a requirements and the estimated time to Agency Has Taken To Minimize the draft rule requiring the owners of track fulfill each requirement are as follows: Significant Adverse Economic Impact carried on one or more railroad bridges On Small Entities Consistent With the to adopt a bridge safety management Objectives of Applicable Statutes, program to reduce the risk of human Including a Statement of Factual, Policy, casualties, environmental damage, and and Legal Reasons for Selecting the disruption to the Nation’s railroad Alternative Adopted in the Final Rule, transportation system resulting from and Why Each of the Other Significant catastrophic bridge failure. The Working Alternatives to the Rule Considered by Group met twice, on January 28–29, the Agency Was Rejected 2009, and February 23–24, 2009. Small In § 237.31, FRA sets the schedule for railroad representatives participated in railroads to adopt bridge safety both meetings and raised issues of

Total an- CFR Section Respondent universe Total annual responses Average time per nual bur- response den hours

237.3: Notifications to FRA of Assignment of Bridge Respon- 693 Railroads ...... 15 notifications ...... 90 minutes ...... 22.5 sibility. Signed Statement by Assignee Concerning Bridge Re- 693 Railroads ...... 15 signed statements ... 30 minutes ...... 7.5 sponsibility. 237.9: Waivers—Petitions ...... 693 Railroads ...... 12 petitions ...... 4 hours ...... 48 237.31 and 237.33: Development/Adoption of Bridge Man- 693 Railroads ...... 693 plans ...... Varies ...... 20,100 agement Program. 237.57: Designation of Qualified Individuals ...... 693 Railroads ...... 200 designations ...... 30 minutes ...... 100 237.71: Determination of Bridge Load Capacities ...... 693 Railroads ...... 2,000 determinations .... 8 hours ...... 16,000 237.73: Issuance of Instructions to Railroad Personnel by 693 Railroads ...... 2,000 instructions ...... 2 hours ...... 4,000 Track Owner. 237.105: Special Bridge Inspections and Reports/Records ...... 693 Railroads ...... 7,500 inspections and 12.50 hours ...... 93,750 reports/records. Special Underwater Inspections ...... 693 Railroads ...... 50 inspections and re- 40 hours ...... 2,000 ports/records. 237.107 and 237.109: Nationwide Annual Bridge Inspections—Reports ...... 693 Railroads ...... 18,000 inspections and 4 hours ...... 72,000 reports. Records ...... 693 Railroads ...... 18,000 records ...... 1 hour ...... 18,000

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Total an- CFR Section Respondent universe Total annual responses Average time per nual bur- response den hours

Report of Deficient Condition on a Bridge (New from 693 Railroads ...... 50 reports ...... 30 minutes ...... 25 NPRM). 237.111: Review of Bridge Inspection Reports by Railroad 693 Railroads ...... 2,000 inspection report 30 minutes ...... 1,000 Bridge Engineers. reviews. Prescription of Bridge Inspection Procedure Modifica- 693 Railroads ...... 200 inspection proce- 30 minutes ...... 100 tions After Review. dure modifications. 237.131: Design of Bridge Modifications or Bridge Repairs ...... 693 Railroads ...... 1,250 designs ...... 16 hours ...... 20,000 Bridge Modification Repair Reviews/Supervisory Efforts 693 Railroads ...... 1,250 bridge modifica- 1.50 hours ...... 1,875 tion repair reviews. Common Standard Designed by Railroad Bridge Engi- 693 Railroads ...... 50 standards ...... 24 hours ...... 1,200 neer (New from NPRM). 237.153: Audits of Inspections ...... 693 Railroads ...... 693 inspection audits ... 80 hours/24 5,470 hours/6 hours. 237.155—Documents and Records: Establishment of Railroad Monitoring and Information 693 Railroads ...... 5 systems ...... 80 hours ...... 400 Technology Security Systems for Electronic Record- keeping. Employees Trained in System ...... 693 Railroads ...... 100 employees ...... 8 hours ...... 800

All estimates include the time for announced by separate notice in the government and the States, or on the reviewing instructions; searching Federal Register. distribution of power and existing data sources; gathering or responsibilities among the various D. Environmental Impact maintaining the needed data; and levels of government.’’ Under Executive reviewing the information. For FRA has evaluated this final rule in Order 13132, the agency may not issue information or a copy of the paperwork accordance with its ‘‘Procedures for a regulation with federalism package submitted to OMB, contact Mr. Considering Environmental Impacts’’ implications that imposes substantial Robert Brogan at 202–493–6292 or Ms. (FRA’s Procedures) (64 FR 28545, May direct compliance costs and that is not Kimberly Toone at 202–493–6132, or via 26, 1999) as required by the National required by statute, unless the Federal e-mail at the following respective Environmental Policy Act (42 U.S.C. government provides the funds addresses: [email protected]; or 4321 et seq.), other environmental necessary to pay the direct compliance [email protected]. statutes, Executive Orders, and related costs incurred by State and local Organizations and individuals regulatory requirements. FRA has governments or the agency consults desiring to submit comments on the determined that this action is not a with State and local government collection of information requirements major FRA action (requiring the officials early in the process of should direct them to the Office of preparation of an environmental impact developing the regulation. Where a Management and Budget, Office of statement or environmental assessment) regulation has federalism implications Information and Regulatory Affairs, because it is categorically excluded from and preempts State law, the agency detailed environmental review pursuant Washington, DC 20503, Attention: FRA seeks to consult with State and local to section 4(c)(20) of FRA’s Procedures. Desk Officer. Comments may also be officials in the process of developing the 64 FR 28547, May 26, 1999. In sent via e-mail to the Office of regulation. accordance with section 4(c) and (e) of Management and Budget at the FRA has analyzed this final rule in FRA’s Procedures, the agency has following address: accordance with the principles and further concluded that no extraordinary [email protected]. criteria contained in Executive Order circumstances exist with respect to this OMB is required to make a decision final rule that might trigger the need for 13132. This final rule will not have a concerning the collection of information a more detailed environmental review. substantial direct effect on the States, on requirements contained in this final rule As a result, FRA finds that this final rule the relationship between the Federal between 30 and 60 days after is not a major Federal action government and the States, or on the publication of this document in the significantly affecting the quality of the distribution of power and Federal Register. Therefore, a comment human environment. responsibilities among the various to OMB is best assured of having its full levels of government. FRA has also effect if OMB receives it within 30 days E. Federalism Implications determined that this final rule will not of publication. Executive Order 13132, ‘‘Federalism’’ impose substantial direct compliance FRA cannot impose a penalty on (64 FR 43255, Aug. 10, 1999), requires costs on State and local governments. persons for violating information FRA to develop an accountable process Therefore, the consultation and funding collection requirements that do not to ensure ‘‘meaningful and timely input requirements of Executive Order 13132 display a current OMB control number, by State and local officials in the do not apply. if required. FRA intends to obtain development of regulatory policies that Moreover, FRA notes that RSAC, current OMB control numbers for any have federalism implications.’’ ‘‘Policies which provided advice regarding this new information collection that have federalism implications’’ are final rule, has as permanent members, requirements resulting from this defined in the Executive Order to two organizations representing State rulemaking action prior to the effective include regulations that have and local interests: AASHTO and date of this final rule. The OMB control ‘‘substantial direct effects on the States, ASRSM. Both of these State number, when assigned, will be on the relationship between the national organizations concurred with the RSAC

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recommendation made in this a written statement’’ detailing the effect removing appendix C to part 213 and rulemaking. RSAC regularly provides on State, local, and tribal governments adding part 237 as follows: recommendations to the Administrator and the private sector. This final rule of FRA for solutions to regulatory issues will not result in the expenditure, in the PART 213—[AMENDED] that reflect significant input from its aggregate, of $140,800,000 or more in State members. To date, FRA has any one year, and thus preparation of ■ 1. The authority citation for part 213 received no indication of concerns such a statement is not required. continues to read as follows: about the federalism implications of this G. Energy Impact Authority: 49 U.S.C. 20102–20114 and rulemaking from these representatives 20142; 28 U.S.C. 2461, note; and 49 CFR or from any other representatives of Executive Order 13211 requires 1.49. State government. Federal agencies to prepare a Statement Appendix C to Part 213—[Removed] However, this final rule could have of Energy Effects for any ‘‘significant preemptive effect by operation of law energy action.’’ See 66 FR 28355, May ■ 2. In part 213, remove appendix C. under a provision of the former Federal 22, 2001. Under the Executive Order a ■ Railroad Safety Act of 1970 (former ‘‘significant energy action’’ is defined as 3. Add part 237 to read as follows: FRSA), 49 U.S.C 20106 (Sec. 20106). any action by an agency that PART 237—BRIDGE SAFETY The former FRSA provides that States promulgates or is expected to lead to the STANDARDS may not adopt or continue in effect any promulgation of a final rule or law, regulation, or order related to regulation, including notices of inquiry, Subpart A—General railroad safety or security that covers advance notices of proposed Sec. the subject matter of a regulation rulemaking, and notices of proposed 237.1 Application. prescribed or order issued by the rulemaking: (1)(i) That is a significant 237.3 Responsibility for compliance. Secretary of Transportation (with regulatory action under Executive Order 237.5 Definitions. respect to railroad safety matters) or the 12866 or any successor order, and (ii) is 237.7 Penalties. Secretary of Homeland Security (with likely to have a significant adverse effect 237.9 Waivers. respect to railroad security matters), on the supply, distribution, or use of Subpart B—Railroad Bridge Safety except when the State law, regulation, energy; or (2) that is designated by the Assurance or order qualifies under the ‘‘local safety Administrator of the Office of or security hazard’’ exception to Section 237.31 Adoption of bridge management Information and Regulatory Affairs as a programs. 20106. significant energy action. FRA has In sum, FRA has analyzed this final 237.33 Content of bridge management evaluated this final rule in accordance programs. rule in accordance with the principles with Executive Order 13211. FRA has and criteria contained in Executive Subpart C—Qualifications and Designations determined that this final rule is not of Responsible Persons Order 13132. As explained above, FRA likely to have a significant adverse effect has determined that this final rule has on the supply, distribution, or use of 237.51 Railroad bridge engineers. no federalism implications, other than energy. Consequently, FRA has 237.53 Railroad bridge inspectors. the possible preemption of State laws 237.55 Railroad bridge supervisors. determined that this final rule is not a 237.57 Designation of individuals. under the former FRSA. Accordingly, ‘‘significant energy action’’ within the FRA has determined that preparation of meaning of the Executive Order. Subpart D—Capacity of Bridges a federalism summary impact statement H. Privacy Act Statement 237.71 Determination of bridge load for this final rule is not required. capacities. F. Unfunded Mandates Reform Act of Anyone is able to search the 237.73 Protection of bridges from over- 1995 electronic form of all comments weight and over-dimension loads. received into any of DOT’s dockets by Pursuant to Section 201 of the Subpart E—Bridge Inspection the name of the individual submitting Unfunded Mandates Reform Act of 1995 237.101 Scheduling of bridge inspections. the comment (or signing the comment, (Pub. L. 104–4, 2 U.S.C. 1531), each 237.103 Bridge inspection procedures. Federal agency ‘‘shall, unless otherwise if submitted on behalf of an association, 237.105 Special inspections. prohibited by law, assess the effects of business, labor union, etc). You may 237.107 Conduct of bridge inspections. Federal regulatory actions on State, review DOT’s complete Privacy Act 237.109 Bridge inspection records. local, and tribal governments, and the Statement published in the Federal 237.111 Review of bridge inspection private sector (other than to the extent Register on April 11, 2000 (Volume 65, reports. that such regulations incorporate Number 70, Pages 19477–78), or you Subpart F—Repair and Modification of requirements specifically set forth in may visit http://DocketsInfo.dot.gov. Bridges law).’’ Section 202 of the Act (2 U.S.C. List of Subjects 237.131 Design. 1532) further requires that ‘‘before 237.133 Supervision of repairs and promulgating any general notice of 49 CFR Part 213 modifications. proposed rulemaking that is likely to Penalties, Railroad safety, Reporting Subpart G—Documentation, Records, and result in the promulgation of any rule and recordkeeping requirements. Audits of Bridge Management Programs that includes any Federal mandate that 49 CFR Part 237 237.151 Audits; general. may result in the expenditure by State, 237.153 Audits of inspections. local, and tribal governments, in the Penalties, Railroad safety, Bridge 237.155 Documents and records. aggregate, or by the private sector, of safety, Reporting and recordkeeping Appendix A—Supplemental Statement of $100,000,000 or more (adjusted requirements. Agency Policy on the Safety of Railroad annually for inflation) (currently The Rule Bridges $140,800,000) in any 1 year, and before Appendix B—Schedule of Civil Penalties promulgating any final rule for which a ■ In consideration of the foregoing, FRA Authority: 49 U.S.C. 20102–20114; P.L. general notice of proposed rulemaking amends chapter II, subtitle B, of title 49, 110–432, division A, section 417; 28 U.S.C. was published, the agency shall prepare Code of Federal Regulations by 2461, note; and 49 CFR 1.49.

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Subpart A—General performs any function required by this (b) Any person who knowingly and part, that person is required to perform willfully falsifies a record or report § 237.1 Application. that function in accordance with this required by this part may be subject to (a) Except as provided in paragraphs part. criminal penalties under 49 U.S.C. (b) or (c) of this section, this part applies (f) Where an owner of track to which 21311. to all owners of railroad track with a this part applies has previously assigned gage of two feet or more and which is responsibility for a segment of track to § 237.9 Waivers. supported by a bridge. another person as prescribed in 49 CFR (a) Any person subject to a (b) This part does not apply to bridges 213.5(c), additional notification to FRA requirement of this part may petition on track used exclusively for rapid is not required. the Administrator for a waiver of transit operations in an urban area that (g) FRA reserves the right to reject an compliance with such requirement. The are not connected with the general assignment of responsibility under filing of such a petition does not affect railroad system of transportation. § 237.3(b) for cause shown. that person’s responsibility for (c) This part does not apply to bridges compliance with that requirement while located within an installation which is § 237.5 Definitions. the petition is being considered. not part of the general railroad system For the purposes of this part— (b) Each petition for waiver must be of transportation and over which trains Bridge modification means a change filed in the manner and contain the are not operated by a railroad. to the configuration of a railroad bridge information required by part 211 of this that affects the load capacity of the § 237.3 Responsibility for compliance. chapter. bridge. (c) If the Administrator finds that a (a) Except as provided in paragraph Bridge repair means remediation of waiver of compliance is in the public (b) of this section, an owner of track to damage or deterioration which has interest and is consistent with railroad which this part applies is responsible affected the structural integrity of a safety, the Administrator may grant the for compliance. railroad bridge. waiver subject to any conditions the (b) If an owner of track to which this Railroad bridge means any structure Administrator deems necessary. If a part applies assigns responsibility for with a deck, regardless of length, which waiver is granted, the Administrator the bridges that carry the track to supports one or more railroad tracks, or publishes a notice in the Federal another person (by lease or otherwise), any other undergrade structure with an Register containing the reasons for written notification of the assignment individual span length of 10 feet or granting the waiver. shall be provided to the appropriate more located at such a depth that it is FRA Regional Office at least 30 days in affected by live loads. Subpart B—Railroad Bridge Safety advance of the assignment. The Track owner means a person Assurance notification may be made by any party responsible for compliance in § 237.31 Adoption of bridge management to that assignment, but shall be in accordance with § 237.3. writing and include the following— programs. (1) The name and address of the track § 237.7 Penalties. Each track owner shall adopt a bridge owner; (a) Any person who violates any safety management program to prevent (2) The name and address of the requirement of this part or causes the the deterioration of railroad bridges by person to whom responsibility is violation of any such requirement is preserving their capability to safely assigned (assignee); subject to a civil penalty of at least $650 carry the traffic to be operated over (3) A statement of the exact and not more than $25,000 per them, and reduce the risk of human relationship between the track owner violation, except that: Penalties may be casualties, environmental damage, and and the assignee; assessed against individuals only for disruption to the Nation’s railroad (4) A precise identification of the transportation system that would result track segment and the individual willful violations, and, where a grossly negligent violation or a pattern of from a catastrophic bridge failure, not bridges in the assignment; later than the dates in the following (5) A statement as to the competence repeated violations has created an imminent hazard of death or injury to schedule: and ability of the assignee to carry out (a) March 14, 2011: Class I carriers; the bridge safety duties of the track persons, or has caused death or injury, a penalty not to exceed $100,000 per (b) March 14, 2011: Owners of track owner under this part; and segments which are part of the general (6) A statement signed by the assignee violation may be assessed. ‘‘Person’’ means an entity of any type covered railroad system of transportation and acknowledging the assignment to him of which carry more than ten scheduled responsibility for purposes of under 1 U.S.C. 1, including but not limited to the following: A railroad; a passenger trains per week; compliance with this part. (c) September 13, 2011: Class II manager, supervisor, official, or other (c) The Administrator may hold the carriers to which paragraph (b) of this employee or agent of a railroad; any track owner or the assignee, or both, section does not apply; and owner, manufacturer, lessor, or lessee of responsible for compliance with this (d) September 13, 2012: All other railroad equipment, track, or facilities; part and subject to penalties under track owners subject to this part and not any independent contractor providing § 237.7. described paragraphs (a) through (c) of goods or services to a railroad; any (d) A common carrier by railroad this section. which is directed by the Surface employee of such owner, manufacturer, Transportation Board to provide service lessor, lessee, or independent § 237.33 Content of bridge management over the track of another railroad under contractor; and anyone held by the programs. 49 U.S.C. 11123 is considered the owner Administrator of the Federal Railroad Each bridge management program of that track for the purposes of the Administration to be responsible under adopted in compliance with this part application of this part during the § 237.3(d). Each day a violation shall include, as a minimum, the period the directed service order continues shall constitute a separate following: remains in effect. offense. See Appendix B to this part for (a) An accurate inventory of railroad (e) When any person, including a a statement of agency civil penalty bridges, which shall include a unique contractor for a railroad or track owner, policy. identifier for each bridge, its location,

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configuration, type of construction, owner to be technically competent to bridges according to their relative number of spans, span lengths, and all view, measure, report and record the priority, as established by a railroad other information necessary to provide condition of a railroad bridge and its bridge engineer. The initial for the management of bridge safety; individual components which that determination of load capacity shall be (b) A record of the safe load capacity person is designated to inspect. An completed not later than five years of each bridge; inspector shall be designated to following the required date for adoption (c) A provision to obtain and maintain authorize or restrict the operation of of the track owner’s bridge management the design documents of each bridge if railroad traffic over a bridge according program in conformance with § 237.31. available, and to document all repairs, to its immediate condition or state of modifications, and inspections of each repair. (f) Where a bridge inspection reveals bridge; and that, in the determination of the railroad (d) A bridge inspection program § 237.55 Railroad bridge supervisors. bridge engineer, the condition of a covering as a minimum: A railroad bridge supervisor shall be bridge or a bridge component might (1) Inspection personnel safety a person, regardless of position title, adversely affect the ability of the bridge considerations; who is determined by the track owner to carry the traffic being operated, a new (2) Types of inspection including to be technically competent to supervise capacity shall be determined. required detail; the construction, modification or repair (3) Definitions of defect levels along of a railroad bridge in conformance with (g) Bridge load capacity may be with associated condition codes if common or particular specifications, expressed in terms of numerical values condition codes are used; plans and instructions applicable to the related to a standard system of bridge (4) The method of documenting work to be performed, and to authorize loads, but shall in any case be stated in inspections including standard forms or or restrict the operation of railroad terms of weight and length of individual formats; traffic over a bridge according to its or combined cars and locomotives, for (5) Structure type and component immediate condition or state of repair. the use of transportation personnel. nomenclature; and (h) Bridge load capacity may be (6) Numbering or identification § 237.57 Designations of individuals. Each track owner shall designate expressed in terms of both normal and protocol for substructure units, spans, maximum load conditions. Operation of and individual components. those individuals qualified as railroad bridge engineers, railroad bridge equipment that produces forces greater Subpart C—Qualifications and inspectors and railroad bridge than the normal capacity shall be Designations of Responsible Persons supervisors. Each individual subject to any restrictions or conditions designation shall include the basis for that may be prescribed by a railroad § 237.51 Railroad bridge engineers. the designation in effect and shall be bridge engineer. (a) A railroad bridge engineer shall be recorded. a person who is determined by the track § 237.73 Protection of bridges from over- owner to be competent to perform the Subpart D—Capacity of Bridges weight and over-dimension loads. following functions as they apply to the § 237.71 Determination of bridge load (a) Each track owner shall issue particular engineering work to be capacities. instructions to the personnel who are performed: responsible for the configuration and (1) Determine the forces and stresses (a) Each track owner shall determine the load capacity of each of its railroad operation of trains over its bridges to in railroad bridges and bridge prevent the operation of cars, components; bridges. The load capacity need not be locomotives and other equipment that (2) Prescribe safe loading conditions the ultimate or maximum load capacity, for railroad bridges; but must be a safe load capacity. would exceed the capacity or (3) Prescribe inspection and (b) The load capacity of each bridge dimensions of its bridges. maintenance procedures for railroad shall be documented in the track (b) The instructions regarding weight bridges; and owner’s bridge management program, shall be expressed in terms of maximum (4) Design repairs and modifications together with the method by which the equipment weights, and either to railroad bridges. capacity was determined. minimum equipment lengths or axle (c) The determination of load capacity (b) The educational qualifications of a spacing. railroad bridge engineer shall include shall be made by a railroad bridge either: engineer using appropriate engineering (c) The instructions regarding (1) A degree in engineering granted by methods and standards that are dimensions shall be expressed in terms a school of engineering with at least one particularly applicable to railroad of feet and inches of cross section and program accredited by ABET, Inc. or its bridges. equipment length, in conformance with successor organization as a professional (d) Bridge load capacity may be common railroad industry practice for engineering curriculum, or a degree determined from existing design and reporting dimensions of exceptional from a program accredited as a modification records of a bridge, equipment in interchange in which professional engineering curriculum by provided that the bridge substantially height above top-of-rail is shown for a foreign organization recognized by conforms to its recorded configuration. each cross section measurement, ABET, Inc. or its successor; or Otherwise, the load capacity of a bridge followed by the width of the car of the (2) Current registration as a shall be determined by measurement shipment at that height. and calculation of the properties of its professional engineer. (d) The instructions may apply to (c) Nothing in this part affects the individual components, or other individual structures, or to a defined States’ authority to regulate the methods as determined by a railroad professional practice of engineering. bridge engineer. line segment or group(s) of line (e) If a track owner has a group of segments where the published § 237.53 Railroad bridge inspectors. bridges for which the load capacity has capacities and dimensions are within A railroad bridge inspector shall be a not already been determined, the owner the limits of all structures on the subject person who is determined by the track shall schedule the evaluation of those line segments.

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Subpart E—Bridge Inspection before they present a hazard to safe train necessary for the correct interpretation operation. of the report; and § 237.101 Scheduling of bridge inspections. § 237.105 Special inspections. (7) When an inspection does not encompass the entire bridge, the (a) Each bridge management program (a) Each bridge management program portions of the bridge which were shall include a provision for scheduling shall prescribe a procedure for inspected shall be identified in the an inspection for each bridge in railroad protection of train operations and for report. service at least once in each calendar inspection of any bridge that might have year, with not more than 540 days been damaged by a natural or accidental (d) An initial report of each bridge between any successive inspections. event, including but not limited to a inspection shall be placed in the (b) A bridge shall be inspected more flood, fire, earthquake, derailment or location designated in the bridge frequently than provided for in the vehicular or vessel impact. management program within 30 bridge management program when a (b) Each bridge management program calendar days of the completion of the railroad bridge engineer determines that shall provide for the detection of scour inspection unless the complete such inspection frequency is necessary or deterioration of bridge components inspection report is filed first. The considering conditions noted on prior that are submerged, or that are subject initial report shall include the inspections, the type and configuration to water flow. information required by paragraphs of the bridge, and the weight and § 237.107 Conduct of bridge inspections. (c)(1) through (c)(5) of this section. frequency of traffic carried on the (e) A complete report of each bridge bridge. Bridge inspections shall be conducted under the direct supervision of a inspection, including as a minimum the (c) Each bridge management program designated railroad bridge inspector, information required in paragraphs shall define requirements for the special who shall be responsible for the (c)(1) through (c)(6) of this section, shall inspection of a bridge to be performed accuracy of the results and the be placed in the location designated in whenever the bridge is involved in an conformity of the inspection to the the bridge management program within event which might have compromised bridge management program. 120 calendar days of the completion of the integrity of the bridge, including but the inspection. not limited to a flood, fire, earthquake, § 237.109 Bridge inspection records. derailment or vehicular or vessel (f) Each bridge inspection program (a) Each track owner to which this shall specify the retention period and impact. part applies shall keep a record of each (d) Any railroad bridge that has not location for bridge inspection records. inspection required to be performed on The retention period shall be no less been in railroad service and has not those bridges under this part. than two years following the completion been inspected in accordance with this (b) Each record of an inspection under of the inspection. Records of underwater section within the previous 540 days the bridge management program inspections shall be retained until the shall be inspected and the inspection prescribed in this part shall be prepared completion and review of the next report reviewed by a railroad bridge from notes taken on the day(s) the engineer prior to the resumption of inspection is made, supplemented with underwater inspection of the bridge. railroad service. sketches and photographs as needed. (g) If a bridge inspector, supervisor, or engineer discovers a deficient condition § 237.103 Bridge inspection procedures. Such record will be dated with the date(s) the physical inspection takes on a bridge that affects the immediate (a) Each bridge management program place and the date the record is created, safety of train operations, that person shall specify the procedure to be used and it will be signed or otherwise shall report the condition as promptly for inspection of individual bridges or certified by the person making the as possible to the person who controls classes and types of bridges. inspection. the operation of trains on the bridge in (b) The bridge inspection procedures (c) Each bridge management program order to protect the safety of train shall be as specified by a railroad bridge shall specify that every bridge operations. engineer who is designated as inspection report shall include, as a responsible for the conduct and review minimum, the following information: § 237.111 Review of bridge inspection of the inspections. The inspection (1) A precise identification of the reports. procedures shall incorporate the bridge inspected; Bridge inspection reports shall be methods, means of access, and level of (2) The date on which the physical reviewed by railroad bridge supervisors detail to be recorded for the various inspection was completed; and railroad bridge engineers to: components of that bridge or class of (3) The identification and written or bridges. electronic signature of the inspector; (a) Determine whether inspections (c) The bridge inspection procedures (4) The type of inspection performed, have been performed in accordance shall ensure that the level of detail and in conformance with the definitions of with the prescribed schedule and the inspection procedures are inspection types in the bridge specified procedures; appropriate to: the configuration of the management program; (b) Evaluate whether any items on the bridge; conditions found during (5) An indication on the report as to report represent a present or potential previous inspections; the nature of the whether any item noted thereon hazard to safety; railroad traffic moved over the bridge requires expedited or critical review by (c) Prescribe any modifications to the (including equipment weights, train a railroad bridge engineer, and any inspection procedures or frequency for frequency and length, levels of restrictions placed at the time of the that particular bridge; passenger and hazardous materials inspection; traffic); and vulnerability of the bridge (6) The condition of components (d) Schedule any repairs or to damage. inspected, which may be in a condition modifications to the bridge required to (d) The bridge inspection procedures reporting format prescribed in the maintain its structural integrity; and shall be designed to detect, report and bridge management program, together (e) Determine the need for further protect deterioration and deficiencies with any narrative descriptions higher-level review.

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Subpart F—Repair and Modification of the bridges noted on the reports to Appendix A to Part 237—Supplemental Bridges determine whether the reports Statement of Agency Policy on the accurately describe the condition of the Safety of Railroad Bridges § 237.131 Design. bridge. Each repair or modification which A Statement of Agency Policy on the Safety materially modifies the capacity of a § 237.155 Documents and records. of Railroad Bridges was originally published bridge or the stresses in any primary Each track owner required to by FRA in 2000 as Appendix C of the Federal load-carrying component of a bridge implement a bridge management Track Safety Standards, 49 CFR Part 213. shall be designed by a railroad bridge program and keep records under this With the promulgation of 49 CFR Part 237, Bridge Safety Standards, many of the non- engineer. The design shall specify the part shall make those program regulatory provisions in that Policy manner in which railroad traffic or other documents and records available for Statement have been incorporated into the live loads may be permitted on the inspection and reproduction by the bridge safety standards in this part. bridge while it is being modified or Federal Railroad Administration. However, FRA has determined that other repaired. Designs and procedures for (a) Electronic recordkeeping; general. non-regulatory items are still useful as repair or modification of bridges of a For purposes of compliance with the information and guidance for track owners. common configuration, such as timber recordkeeping requirements of this part, Those provisions of the Policy Statement are trestles, or instructions for in-kind a track owner may create and maintain therefore retained and placed in this any of the records required by this part Appendix in lieu of their former location in replacement of bridge components, may the Track Safety Standards. be issued as a common standard. Where through electronic transmission, storage, the common standard addresses and retrieval provided that all of the General procedures and methods that could following conditions are met: 1. The structural integrity of bridges that materially modify the capacity of a (1) The system used to generate the carry railroad tracks is important to the safety bridge or the stresses in any primary electronic record meets all requirements of railroad employees and to the public. The load-carrying component of a bridge, the of this subpart; responsibility for the safety of railroad (2) The electronically generated bridges is specified in § 237.3, standard shall be designed and issued ‘‘Responsibility for compliance.’’ by a qualified railroad bridge engineer. record contains the information required by this part; 2. The capacity of a bridge to safely support its traffic can be determined only by § 237.133 Supervision of repairs and (3) The track owner monitors its intelligent application of engineering modifications. electronic records database through principles and the law of physics. Track Each repair or modification pursuant sufficient number of monitoring owners should use those principles to assess to this part shall be performed under the indicators to ensure a high degree of the integrity of railroad bridges. immediate supervision of a railroad accuracy of these records; 3. The long term ability of a structure to bridge supervisor as defined in § 237.55 (4) The track owner shall train its perform its function is an economic issue of this part who is designated and employees who use the system on the beyond the intent of this policy. In assessing authorized by the track owner to proper use of the electronic a bridge’s structural condition, FRA focuses on the present safety of the structure, rather supervise the particular work to be recordkeeping system; and (5) The track owner maintains an than its appearance or long term usefulness. performed. The railroad bridge 4. FRA inspectors conduct regular supervisor shall ensure that railroad information technology security evaluations of railroad bridge inspection and traffic or other live loads permitted on program adequate to ensure the integrity management practices. The objective of these the bridge under repair or modification of the system, including the prevention evaluations is to document the practices of are in conformity with the specifications of unauthorized access to the program the evaluated railroad, to disclose any in the design. logic or individual records. program weaknesses that could affect the (b) System security. The integrity of safety of the public or railroad employees, Subpart G—Documentation, Records, the bridge inspection records must be and to assure compliance with the terms of and Audits of Bridge Management protected by a security system that this regulation. If the evaluation discloses problems, FRA seeks a cooperative Programs incorporates a user identity and resolution. If safety is jeopardized by a track password, or a comparable method, to § 237.151 Audits; general. owner’s failure to resolve a bridge problem, establish appropriate levels of program FRA will use appropriate measures, Each program adopted to comply with and record data access meeting all of the including assessing civil penalties and this part shall include provisions for following standards: issuance of emergency orders, to protect the auditing the effectiveness of the several (1) No two individuals have the same safety of railroad employees and the public. provisions of that program, including electronic identity; 5. This policy statement addresses the the validity of bridge inspection reports (2) A record cannot be deleted or integrity of bridges that carry railroad tracks. and bridge inventory data, and the altered by any individual after the It does not address the integrity of other correct application of movement record is certified by the employee who types of structures on railroad property (i.e., tunnels, highway bridges over railroads, or restrictions to railroad equipment of created the record; other structures on or over the right-of-way). exceptional weight or configuration. (3) Any amendment to a record is 6. The guidelines published in this either— statement are advisory. They do not have the § 237.153 Audits of inspections. (i) Electronically stored apart from the force of regulations or orders, which FRA (a) Each bridge management program record that it amends; or may enforce using civil penalties or other shall incorporate provisions for an (ii) Electronically attached to the means. The guidelines supplement the internal audit to determine whether the record as information without changing requirements of part 237 and are retained for inspection provisions of the program are the original record; information and guidance. being followed, and whether the (4) Each amendment to a record Guidelines program itself is effectively providing uniquely identifies the person making 1. Responsibility for safety of railroad for the continued safety of the subject the amendment; and bridges. bridges. (5) The electronic system provides for (a) The responsibility for the safety of (b) The inspection audit shall include the maintenance of inspection records railroad bridges is specified in § 237.3. an evaluation of a representative as originally submitted without (b) The track owner should maintain sampling of bridge inspection reports at corruption or loss of data. current information regarding loads that may

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be operated over the bridge, either from its (b) Organizations acquiring railroad from which to predict attenuation factors. own engineering evaluations or as provided property should obtain original or usable That uncertainty should be considered when by a competent engineer representing the copies of all bridge records and drawings, designating the area in which precautions track owner. Information on permissible and protect or maintain knowledge of the should be taken following the first notice of loads may be communicated by the track location of the original records. an earthquake. In fact, earthquakes in such owner either in terms of specific car and 5. Specifications for design and rating of regions might propagate their effects over locomotive configurations and weights, or as railroad bridges. much wider areas than earthquakes of the values representing a standard railroad (a) The recommended specifications for the same magnitude occurring in regions with bridge rating reference system. The most design and rating of bridges are those found frequent seismic activity. common standard bridge rating reference in the Manual for Railway Engineering 9. Special inspections of railroad bridges. system incorporated in the Manual for published by the American Railway Requirements for special inspections of Railway Engineering of the American Engineering and Maintenance-of-Way railroad bridges are found in § 237.105. Railway Engineering and Maintenance-of- Association. These specifications incorporate 10. Railroad bridge inspection records. Way Association is the dimensional and recognized principles of structural design (a) The requirements for recording and proportional load configuration devised by and analysis to provide for the safe and reporting bridge inspections are found in Theodore Cooper. Other reference systems economic utilization of railroad bridges § 237.109. may be used where convenient, provided during their expected useful lives. These (b) Information from bridge inspection their effects can be defined in terms of shear, specifications are continually reviewed and reports should be incorporated into a bridge bending and pier reactions as necessary for revised by committees of competent management program to ensure that a comprehensive evaluation and statement of engineers. Other specifications for design and exceptions on the reports are corrected or the capacity of a bridge. rating, however, have been successfully used accounted for. A series of inspection reports (c) The owner of the track on a bridge by some railroads and may continue to be prepared over time should be maintained so should advise other railroads operating on suitable. as to provide a valuable record of trends and that track of the maximum loads permitted (b) A bridge can be rated for capacity rates of degradation of bridge components. on the bridge stated in terms of car and according to current specifications regardless The reports should be structured to promote locomotive configurations and weights. No of the specification to which it was originally comprehensive inspections and effective railroad should operate a load which exceeds designed. communication between an inspector and an those limits without specific authority from, 6. Periodic inspections of railroad bridges. engineer who performs an analysis of a and in accordance with restrictions placed (a) Periodic bridge inspections by bridge. by, the track owner. competent inspectors are necessary to (c) An inspection report should be 2. Capacity of railroad bridges. determine whether a structure conforms to its comprehensible to a competent person (a) The safe capacity of bridges should be design or rating condition and, if not, the without interpretation by the reporting determined pursuant to § 237.71. degree of nonconformity. See § 237.101. inspector. (b) Proper analysis of a bridge requires Section 237.101(a) calls for every railroad 11. Railroad bridge inspectors and knowledge of the actual dimensions, bridge to be inspected at least once in each engineers. materials and properties of the structural calendar year. Deterioration or damage may (a) Bridge inspections should be performed members of the bridge, their condition, and occur during the course of a year regardless by technicians whose training and the stresses imposed in those members by the of the level of traffic that passes over a experience enable them to detect and record service loads. bridge. Inspections at more frequent intervals indications of distress on a bridge. Inspectors (c) The factors which were used for the may be required by the nature or condition should provide accurate measurements and design of a bridge can generally be used to of a structure or intensive traffic levels. other information about the condition of the determine and rate the load capacity of a 7. Underwater inspections of railroad bridge in enough detail so that an engineer bridge provided: bridges. can make a proper evaluation of the safety of (i) The condition of the bridge has not (a) Inspections of bridges should include the bridge. Qualifications of personnel are changed significantly; and measuring and recording the condition of addressed in subpart C to part 237. (ii) The stresses resulting from the service substructure support at locations subject to (b) Accurate information about the loads can be correlated to the stresses for erosion from moving water. condition of a bridge should be evaluated by which the bridge was designed or rated. (b) Stream beds often are not visible to the an engineer who is competent to determine 3. Railroad bridge loads. inspector. Indirect measurements by the capacity of the bridge. The inspector and (a) Control of loads is governed by sounding, probing, or any other appropriate the evaluator often are not the same § 237.73. means are necessary in these cases. A series individual; therefore, the quality of the (b) Authority for exceptions. Equipment of records of these readings will provide the bridge evaluation depends on the quality of exceeding the nominal weight restriction on best information in the event unexpected the communication between them. Review of a bridge should be operated only under changes suddenly occur. Where such indirect inspection reports is addressed in § 237.111. conditions determined by a competent measurements do not provide the necessary 12. Scheduling inspections. railroad bridge engineer who has properly assurance of foundation integrity, diving (a) A bridge management program should analyzed the stresses resulting from the inspections should be performed as include a means to ensure that each bridge proposed loads and has determined that the prescribed by a competent engineer. under the program is inspected at the proposed operation can be conducted safely 8. Seismic considerations. frequency prescribed for that bridge by a without damaging the bridge. (a) Owners of bridges should be aware of competent engineer. Scheduling of bridge (c) Operating conditions. Operating the risks posed by earthquakes in the areas inspections is addressed in § 237.101. conditions for exceptional loads may include in which their bridges are located. (b) Bridge inspections should be scheduled speed restrictions, restriction of traffic from Precautions should be taken to protect the from an accurate bridge inventory list that adjacent multiple tracks, and weight safety of trains and the public following an includes the due date of the next inspection. limitations on adjacent cars in the same train. earthquake. 13. Special considerations for railroad 4. Railroad bridge records. (b) Contingency plans for seismic events bridges. (a) The organization responsible for the should be prepared in advance, taking into Railroad bridges differ from other types of safety of a bridge should keep design, account the potential for seismic activity in bridges in the types of loads they carry, in construction, maintenance and repair records an area. their modes of failure and indications of readily accessible to permit the (c) The predicted attenuation of ground distress, and in their construction details and determination of safe loads. Having design or motion varies considerably within the United components. Proper inspection and analysis rating drawings and calculations that States. Local ground motion attenuation of railroad bridges require familiarity with conform to the actual structure greatly values and the magnitude of an earthquake the loads, details and indications of distress simplifies the process of making accurate both influence the extent of the area affected that are unique to this class of structure. determinations of safe bridge loads. This by an earthquake. Regions with low Particular care should be taken that provision is governed by § 237.33. frequency of seismic events produce less data modifications to railroad bridges, including

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retrofits for protection against the effects of (2) The location of the bridge by nearest (ii) Training on bridge inspection earthquakes, are suitable for the structure to town or station, and geographic coordinates; procedures; and which they are to be applied. Modifications (3) The name of the geographic features (iii) Training on Railroad Workplace should not adversely affect the serviceability crossed by the bridge; Safety; and of neither the bridge nor its accessibility for (4) The number of tracks on the bridge; (2) Type and frequency of inspection; periodic or special inspection. (5) The number of spans in the bridge; including: 14. Railroad implementation of bridge (6) The lengths of the spans; (i) Periodic (at least annually); safety programs. (7) Types of construction of: (ii) Underwater; FRA recommends that each track owner or (i) Substructure; (iii) Special; other entity which is responsible for the (ii) Superstructure; and (iv) Seismic; and integrity of bridges which support its track (iii) Deck; (v) Cursory inspections of overhead bridges should comply with the intent of this (8) Overall length of the bridge; that are not the responsibility of the railroad; regulation by adopting and implementing an (9) Dates of: (3) Inspection schedule for each bridge; effective and comprehensive program to (i) Construction; (4) Documentation of inspections; ensure the safety of its bridges. The bridge (ii) Major renovation; and including: safety program should incorporate the (i) Date; following essential elements, applied (iii) Strengthening; and (10) Identification of entities responsible (ii) Name of inspector; according to the configuration of the railroad (iii) Reporting Format; and and its bridges. The basis of the program for maintenance of the bridge or its different components. (iv) Coherence of information; should be in one comprehensive and (5) Inspection Report Review Process; (c) Known capacity of its bridges as coherent document which is available to all (6) Record retention; and determined by rating by competent railroad railroad personnel and other persons who are (7) Tracking of critical deficiencies to bridge engineer or by design documents; responsible for the application of any portion resolution; and (d) Procedures for the control of movement of the program. The program should include: (h) Provide for the protection of train of high, wide or heavy loads exceeding the (a) Clearly defined roles and operations following an inspection, noting a responsibilities of all persons who are nominal capacity of bridges; critical deficiency, repair, modification or designated or authorized to make (e) Instructions for the maintenance of adverse event and should include: determinations regarding the integrity of the permanent records of design, construction, (1) A listing of qualifications of personnel track owner’s bridges. The designations may modification, and repair; permitted to authorize train operations be made by position or by individual; (f) Railroad-specific procedures and following an adverse event; and (b) Provisions for a complete inventory of standards for design and rating of bridges; (2) Detailed internal program audit bridges that carry the owner’s track, to (g) Detailed bridge inspection policy, procedures to ensure compliance with the include the following information on each including: provisions of the program. bridge: (1) Inspector qualifications; including: (1) A unique identifier, such as milepost (i) Bridge experience or appropriate Appendix B to Part 237—Schedule of location and a subdivision code; educational training; Civil Penalties

APPENDIX B TO PART 237—SCHEDULE OF CIVIL PENALTIES 1

Section 2 Violation Willful violation

Subpart B—Railroad Bridge Safety Assurance

237.31 Adoption of bridge management program ...... $9,500 $17,000 237.33 Content of bridge management program: (a) Inventory of railroad bridges ...... 2,500 5,000 (b) Record of safe load capacity ...... 5,500 10,000 (c) Provision to obtain and maintain: (i) Design documents ...... 5,500 10,000 (ii) Documentation of repairs and modifications ...... 2,500 5,000 (iii) Inspection reports ...... 2,500 5,000 (d) Bridge inspection program content ...... 2,500 5,000

Subpart C—Qualification and Designation of Responsible Persons

237.51 Railroad bridge engineers: (a) Competency ...... 5,500 10,000 (b) Educational qualification ...... 2,500 5,000 237.53 Railroad bridge inspectors ...... 5,500 10,000 237.55 Railroad bridge supervisors ...... 5,500 10,000 237.57 Designation of individuals ...... 2,500 5,000

Subpart D—Capacity of Bridges

237.71 Determination of bridge load capacities: (a) Safe load capacity ...... 5,500 10,000 (b) Load capacity documented ...... 5,500 10,000 (c) Load capacity determined by a railroad bridge engineer ...... 5,500 10,000 (d) Method of load capacity determination ...... 2,500 5,000 (e) Prioritization of load capacity determination ...... 2,500 5,000 (f) New load capacity determined due to change in condition ...... 2,500 5,000 (g) Load capacity stated in terms of weight and length of equipment ...... 2,500 5,000 (h) Restriction on operations by railroad bridge engineer ...... 5,500 10,000 237.73 Protection of bridges from over-weight and over-dimension equipment: (a) Instructions issued ...... 5,500 10,000 (b) Weight instructions ...... 2,500 5,000

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APPENDIX B TO PART 237—SCHEDULE OF CIVIL PENALTIES 1—Continued

Section 2 Violation Willful violation

(c) Dimensional instructions ...... 2,500 5,000 (d) Incorrect instructions issued ...... 2,500 5,000

Subpart E—Bridge Inspection

237.101 Scheduling of bridge inspections: (a) Scheduling: (i) Failure to inspect ...... 9,500 17,000 (ii) Inspection within calendar year ...... 2,500 5,000 (iii) Inspection frequency exceeding 540 days ...... 2,500 5,000 (b) Increased inspection frequency ...... 5,500 10,000 (c) Special inspections ...... 2,500 5,000 (d) Resumption of railroad operations prior to inspection & review ...... 9,500 17,000 237.103 Bridge inspection procedures ...... 2,500 5,000 237.105 Special inspections: (a) Procedures to protect train operations and requiring special inspections ...... 2,500 5,000 (b) Provision for the detection of scour or underwater deterioration ...... 2,500 5,000 237.107 Conduct of bridge inspections ...... 5,500 10,000 237.109 Bridge inspection records: (a) Record of inspection ...... 2,500 5,000 (b) Inspection record: (i) Certification and date ...... 2,500 5,000 (ii) Falsification ...... 17,000 (c) Inspection record information ...... 2,500 5,000 (d) Initial report within 30 days ...... 2,500 5,000 (e) Final inspection report within 120 calendar days ...... 2,500 5,000 (f) Retention ...... 2,500 5,000 (g) Prompt reporting of dangerous conditions ...... 5,500 10,000 237.111 Review of bridge inspection reports. (a) Review by railroad bridge engineers and supervisors ...... 2,500 5,000 (b) Appropriate action concerning present or potential safety hazards ...... 5,500 10,000 (c) Modification of inspection frequency or procedures ...... 2,500 5,000 (d) Scheduling remedial action ...... 2,500 5,000 (e) Higher-level review ...... 2,500 5,000

Subpart F—Repair and Modification of Bridges

237.131 Design ...... 5,500 10,000 237.133 Supervision of repairs and modifications ...... 5,500 10,000

Subpart G—Documentation, Records and Audits of Bridge Management Programs

237.151 Audits; general ...... 2,500 5,000 237.153 Audits of inspections ...... 2,500 5,000 237.155 Documents and records: (a) Electronic recordkeeping, general ...... 2,500 5,000 (b) System security ...... 2,500 5,000 1 A penalty may be assessed against an individual only for a willful violation. The Administrator reserves the right to assess a penalty of up to $100,000 for any violation where circumstances warrant. See 49 CFR part 209, appendix A. 2 The penalty schedule uses section numbers from 49 CFR part 237. If more than one item is listed as a type of violation of a given section, each item is also designated by a ‘‘penalty code,’’ which is used to facilitate assessment of civil penalties, and which may or may not correspond to any subsection designation(s). For convenience, penalty citations will cite the CFR section and the penalty code, if any. FRA reserves the right, should litigation become necessary, to substitute in its complaint the CFR citation in place of the combined CFR and penalty code citation, should they differ.

Issued in Washington, DC, on July 7, 2010. Joseph C. Szabo, Administrator, Federal Railroad Administration. [FR Doc. 2010–16929 Filed 7–14–10; 8:45 am] BILLING CODE 4910–06–P

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Part III

Environmental Protection Agency 40 CFR Part 52 Approval and Promulgation of Implementation Plans; Texas; Revisions to the New Source Review (NSR) State Implementation Plan (SIP); Flexible Permits; Final Rule

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ENVIRONMENTAL PROTECTION Region 6 reception area at 1445 Ross II. What is the background? AGENCY Avenue, Suite 700, Dallas, Texas. A. Summary of Our Proposed Action The State submittals, which are part B. Summary of the Submittals Addressed 40 CFR Part 52 of the EPA record, are also available for in This Final Action public inspection at the State Air C. Other Relevant Actions on the Texas Permitting SIP Revision Submittals [EPA–R06–OAR–2005–TX–0032; FRL–9174– Agency listed below during official 1] III. Response to Comments business hours by appointment: A. General Comments Approval and Promulgation of Texas Commission on Environmental B. Whether the Flexible Permits Program Is Implementation Plans; Texas; Quality, Office of Air Quality, 12124 Clearly a Minor, Not a Major, NSR SIP Revisions to the New Source Review Park 35 Circle, Austin, Texas 78753. Revision (NSR) State Implementation Plan (SIP); FOR FURTHER INFORMATION CONTACT: Mr. C. Whether the Flexible Permits Program Meets the Requirements for a Substitute Flexible Permits Stanley M. Spruiell, Air Permits Section (6PD–R), Environmental Protection Major NSR SIP Revision AGENCY: Environmental Protection Agency, Region 6, 1445 Ross Avenue, 1. General Comment on Whether the Agency (EPA). Program is a Substitute Major NSR SIP Suite 700, Dallas, Texas 75202–2733, Revision ACTION: Final rule. telephone (214) 665–7212; fax number 2. Requirements for Major NSR 214–665–7263; e-mail address Applicability Determinations SUMMARY: EPA is taking final action to [email protected]. 3. Circumvention of Major NSR disapprove revisions to the SIP SUPPLEMENTARY INFORMATION: 4. Use of Allowable Emissions in Major submitted by the State of Texas that NSR Throughout this document, the relate to the State’s Flexible Permits 5. Retention of Major NSR Permit Terms following terms have the meanings Program (the Texas Flexible Permits and Conditions described below: 6. Protection of the NAAQS Attainment Program or the Program). EPA is • ‘‘we,’’ ‘‘us,’’ and ‘‘our’’ refer to EPA. disapproving the Texas Flexible Permits Under Major NSR • ‘‘Act’’ and ‘‘CAA’’ mean the Federal D. Whether the Flexible Permits Program Program because it does not meet the Clean Air Act. Meets the Requirements for a Minor NSR Minor NSR SIP requirements nor does it • ‘‘40 CFR’’ means Title 40 of the SIP Revision meet the NSR SIP requirements for a Code of Federal Regulations—Protection 1. Applicability for a Minor NSR Program substitute Major NSR SIP revision. We of the Environment. 2. Establishment of the Emission Cap are taking this action under section 110, • ‘‘SIP’’ means State Implementation Under Minor NSR part C, and part D, of Title I of the Plan established under section 110 of 3. Enforceability of a Minor NSR Program Federal Clean Air Act (the Act or CAA). the Act. 4. Revocation of Major NSR Permits Under a Minor NSR Program DATES: • ‘‘NSR’’ means new source review, a This rule is effective on August 5. Protection of the NAAQS Under a Minor 16, 2010. phrase intended to encompass the NSR Program ADDRESSES: EPA has established a statutory and regulatory programs that E. Definition of Account docket for this action under Docket ID regulate the construction and F. Public Participation No. EPA–R06–OAR–2005–TX–0032. All modification of stationary sources as IV. What are the grounds for this disapproval documents in the docket are listed on provided under CAA Title I, section action of the Texas Flexible Permits State the www.regulations.gov Web site. 110(a)(2)(C) and parts C and D, and 40 Program? CFR 51.160 through 51.166. A. The Texas Flexible Permits Program Is Although listed in the index, some • Unclear Whether it is for a Major or information is not publicly available, ‘‘Minor NSR’’ means NSR established under section 110 of the Act Minor NSR SIP Revision e.g., confidential business information B. The Texas Flexible Permits Program Is or other information whose disclosure is and 40 CFR 51.160. • ‘‘NNSR’’ means nonattainment NSR Not Approvable as a Substitute Major restricted by statute. Certain other NSR SIP Revision established under Title I, section 110 material, such as copyrighted material, C. The Texas Flexible Permits Program Is and part D of the Act, and 40 CFR is not placed on the Internet and will be Not Approvable as a Minor NSR SIP 51.165. Revision publicly available only in hard copy • ‘‘PSD’’ means prevention of form. Publicly available docket D. The Texas Flexible Permits Program significant deterioration of air quality Does Not Meet the NSR Public materials are available either established under Title I, section 110 Participation Requirements electronically through and part C of the Act, and 40 CFR E. Definition of ‘‘Account’’ www.regulations.gov or in hard copy at 51.166. V. Final Action the Air Permits Section (6PD–R), • ‘‘Major NSR’’ means any new or VI. Statutory and Executive Order Reviews Environmental Protection Agency, 1445 modified source that is subject to NNSR I. What action is EPA taking? Ross Avenue, Suite 700, Dallas, Texas and/or PSD. 75202–2733. The file will be made • ‘‘Program’’ means the SIP revision EPA is taking final action to available by appointment for public submittals from the TCEQ concerning disapprove the Texas Flexible Permits inspection in the Region 6 Freedom of the Texas Flexible Permits State State Program, as submitted by Texas on Information Act Review Room between Program. November 29, 1994, as revised by the hours of 8:30 a.m. and 4:30 p.m. • ‘‘TSD’’ means the Technical Support severable portions of the March 13, weekdays except for legal holidays. Document for this action. 1996, SIP revision submittal, and Contact the person listed in the FOR • ‘‘NAAQS’’ means any national severable portions of the July 22, 1998 FURTHER INFORMATION CONTACT ambient air quality standard established SIP revision submittal that repealed and paragraph below to make an under 40 CFR part 50. replaced portions of, as well as revised, appointment. If possible, please make • ‘‘MRR’’ means monitoring, the 1994 submittal and repealed and the appointment at least two working reporting, and recordkeeping replaced all of the 1996 submittal; and days in advance of your visit. There will requirements. as revised by severable portions of the be a 15 cent per page fee for making October 25, 1999; September 11, 2000; photocopies of documents. On the day Table of Contents April 12, 2001; September 4, 2002; of the visit, please check in at the EPA I. What action is EPA taking? October 4, 2002; and September 25,

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2003; SIP revision submittals. These required for this type of Minor NSR not meeting the requirements for a submittals include revisions to Title 30 program, as selected by Texas, to ensure substitute Major NSR SIP revision. EPA of the Texas Administrative Code (30 accountability and provide a means to understands that the TCEQ intended for TAC) at 30 TAC Chapter 116—Control determine compliance. The submitted the submitted Program to be a Minor of Air Pollution by Permits for New Program is generic concerning the types NSR program but we are required to Construction or Modification. This of monitoring that is required rather review it as a substitute Major NSR SIP includes the following regulations than identifying the employment of revision because the State should have under Chapter 116: 30 TAC specific monitoring approaches, included express language stating that, 116.110(a)(3), 30 TAC Subchapter G– providing the technical specifications as it did in the two other Minor NSR SIP Flexible Permits, the definitions in 30 for each of the specific allowable alternative permit options (Standard TAC 116.13—Flexible Permit monitoring systems, and requiring Permits and Permits by Rule), that the Definitions, and the definition in 30 replicable procedures for the approval submitted Program is clearly limited to TAC 116.10(11)(F) of ‘‘modification of of any alternative monitoring system. It Minor NSR and prohibits circumvention existing facility.’’ These State also lacks the replicable procedures that of Major NSR. Our grounds for regulations and definitions do not meet are necessary to ensure that (1) adequate disapproval as a substitute Major NSR the requirements of the Act and EPA’s monitoring is required that would SIP revision include the following: NSR regulations. EPA has concluded accurately determine emissions under • It is not clearly limited to Minor that none of these identified elements the Flexible Permit cap, (2) the Program NSR thereby potentially exempting new for the submitted Flexible Permits is based upon sound science and meets major stationary sources to construct Program is severable from each other. generally acceptable scientific and major modifications to occur EPA proposed an action for the above procedures for data quality and without a Major NSR permit; SIP revision submittals on September manipulation; and (3) the information • It has no regulatory provisions 23, 2009 (74 FR 48480). We accepted generated by such system meets clearly prohibiting the use of this comments from the public on this minimum legal requirements for Program from circumventing the Major proposal from September 23, 2009, until admissibility in a judicial proceeding to NSR SIP requirements, thereby allowing November 23, 2009. A summary of the enforce the Flexible Permit; sources to use a Flexible Permit to avoid comments received and our evaluation • It lacks replicable, specific, the requirement to obtain thereof is discussed in section III below. established implementation procedures preconstruction permit authorizations In the proposal and in the Technical for establishing the emissions cap in a for projects that would otherwise Support Document (TSD), we described Minor NSR Flexible Permit; require a Major NSR preconstruction our basis for the actions identified • It fails to ensure that the terms and permit; above. The reader should refer to the conditions of Major NSR SIP permits are • It does not include a demonstration proposal, the TSD, section IV of this retained. Major stationary sources and from the TCEQ, as required by 40 CFR preamble, and the Response to major modifications can use this 51.165(a)(2)(ii) and 51.166(a)(7)(iv), Comments in section III of this preamble submitted Program to fundamentally showing how the use of ‘‘modification’’ for additional information relating to change the way they comply with is at least as stringent as the definition our final action. specific terms and conditions of ‘‘modification’’ in the EPA Major NSR EPA is disapproving the submitted established in their Major NSR SIP SIP program and meets the Act; Texas Flexible Permits State Program as permits. Holders of Major NSR SIP • It does not include a demonstration not meeting the requirements for a permits are not prohibited from using from the TCEQ, as required by 40 CFR Minor NSR SIP revision. Our grounds the submitted Program’s allowables- 51.165(a)(2)(ii) and 51.166(a)(7)(iv), for disapproval as a Minor NSR SIP based emissions cap. The Act prohibits showing the submitted Program is at revision include the following: the use of an allowables-based cap for least as stringent as the EPA Major NSR • The submitted Program has no Major NSR SIP permittees; SIP program; express regulatory prohibition clearly • It fails to meet the statutory and • It does not include the requirement limiting its use to Minor NSR and has regulatory requirements for a Minor to make Major NSR applicability no regulatory provision clearly NSR SIP revision and is not consistent determinations based on actual prohibiting the use of this submitted with EPA policy and guidance on Minor emissions and on emissions increases Program from circumventing the Major NSR SIP revisions; and and decreases (netting) that occur NSR SIP requirements, thereby • Based upon, among other things, within a major stationary source; potentially exempting new major the lack of any objective, replicable • To the extent that major stationary stationary sources and major methodology for establishing the sources and major modifications are modifications from the EPA Major NSR emission cap, the too broad director exempted from Major NSR, it fails to SIP requirements; discretion provision regarding whether meet the statutory and regulatory • It is not an enforceable NSR or not to include MRR conditions in a requirements for a Major NSR SIP permitting program. The submitted Flexible Permit, the lack of sufficient revision and is not consistent with EPA Program lacks requirements necessary MRR requirements for this type of policy and guidance on Major NSR SIP for enforcement and assurance of permit program, and the lack of revisions; compliance. There are no specific up- enforceability, EPA lacks sufficient • Because it fails to include, among front methodologies in the Program to information to determine that the other things, the required demonstration be able to determine compliance. It fails requested revision to add the new from the State showing how the to meet the enforceability requirements permit option to the Texas Minor NSR customized Major NSR SIP revision is in as a program or by a holder of a Flexible SIP will not interfere with any fact as stringent as EPA’s Major NSR Permit, and it cannot assure compliance applicable requirement concerning revised program, any objective, with the Program or of the affected attainment and reasonable further replicable methodology for calculating source; progress (RFP), or any other requirement the emissions cap, provides too broad • It lacks the necessary more of the Act. director discretion regarding whether or specialized monitoring, recordkeeping, We are disapproving the submitted not to include monitoring, and reporting (MRR) requirements Texas Flexible Permits State Program as recordkeeping, and reporting (MRR)

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conditions in a Flexible Permit, lacks disapprove the submitted Texas Flexible existing facility’’ under Texas’s General sufficient MRR requirements for this Permits State Program does not trigger a Definitions in Chapter 116, Control of type of permit program, and is not sanctions or Federal Implementation Air Pollution by Permits for New enforceable, EPA lacks sufficient Plan clock. See CAA section l79(a). Construction or Modification. EPA finds that these submitted provisions and information to make a finding that the II. What is the background? submitted Program will ensure definitions are not severable from each protection of the national ambient air A. Summary of Our Proposed Action other. quality standards (NAAQS), and On September 23, 2009, EPA B. Summary of the Submittals noninterference with the Texas SIP proposed to disapprove revisions to the Addressed in This Final Action control strategies and RFP. SIP submitted by the State of Texas that The provisions in these submittals relate to the Flexible Permits Program. Tables 1 and 2 below summarize the relating to the Texas Flexible Permits These affected provisions include changes that are in the SIP revision State Program that include the Chapter regulatory provisions at 30 TAC submittals. A summary of EPA’s 116 regulatory provisions and the 116.110(a)(3) and 30 TAC Subchapter evaluation of each section and the basis nonseverab1e definitions in the Flexible G—Flexible Permits, definitions in 30 for this final action is discussed in Permits Definitions and the General TAC 116.13, Flexible Permits sections III through V of this preamble. Definitions were not submitted to meet Definitions, and a nonseverable portion The TSD (which is in the docket) a mandatory requirement of the Act. of the definition at subparagraph includes a detailed evaluation of the Therefore, this final action to 116.10(11)(F) of ‘‘modification of submittals.

TABLE 1—SUMMARY OF EACH SIP SUBMITTAL THAT IS AFFECTED BY THIS ACTION

Date sub- Date of State Title of SIP submittal mitted to EPA adoption Regulations affected

Flexible Permits ...... 11/29/1994 11/16/1994 • Revision to 30 TAC 116.110. • Adoption of New 30 TAC 116.13 and New Subchapter G, 30 TAC 116.710, 116.711, 116.714, 116.715, 116.716, 116.717, 116.718, 116.720, 116.721, 116.722, 115.730, 116.740, 116.750, and 116.760. Qualified Facilities and Modifica- 3/13/1996 2/14/1996 • Revision of 30 TAC 116.10 to add new definition of ‘‘modification of tions to Existing Facilities. existing facility’’ at (F). NSR Rule Revisions; section 112(g) 7/22/1998 6/17/1998 • Repeal and new 30 TAC 116.10(9)(F), 116.13 and 116.110(a)(3) Rule Review for Chapter 116. adopted. • Revisions to Subchapter G, 30 TAC 116.710, 116.711, 116.714, 116.715, 116.721, 116.730, and 116.750. Public Participation (HB 801) ...... 10/25/1999 9/2/1999 • Revision to Subchapter G, 30 TAC 116.740. Air Permits (SB–766)—Phase II ...... 9/11/2000 8/9/2000 • Revisions to Subchapter G, 30 TAC 116.710, 116.715, 116.721, 116.722, and 116.750. Emissions Banking and Trading ...... 4/12/2001 3/7/2001 • Revisions to Subchapter G, 30 TAC 116.711 and 116.715. House Bill 3040: Shipyard Facilities 9/4/2002 8/21/2002 • Revision to 30 TAC 116.10, redesignating 30 TAC 116.10(9)(F) to and NSR Maintenance Emissions. 116.10(11)(F). • Revisions to Subchapter G, 30 TAC 116.711 and 116.715. Air Fees ...... 10/4/2002 9/25/2002 • Revisions to Subchapter G, 30 TAC 116.750. Offset Certification, New Source 9/25/2003 8/20/2003 • Revision to Subchapter G, 30 TAC 116.715. Review Permitting Processes and Extensions for Construction.

TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION

Date sub- Date adopted Section Title mitted by State Comments

Chapter 116—Control of Air Pollution by Permits for New Construction or Modification Subchapter A—Definitions

Section 116.10(11)(F) ...... General Definitions ...... 3/13/1996 2/14/1996 • Revised to add new definition of ‘‘modification of existing facility’’ at (F). 7/22/1998 6/17/1998 • Repealed and Adopted new 30 TAC 116.10(9)(F). 9/4/2002 8/21/2002 • Redesignated 30 TAC 116.10(9)(F) to 30 TAC 116.10(11)(F). Section 116.13 ...... Flexible Permit Definitions ... 11/29/1994 11/16/1994 • Initial Adoption. 7/22/1998 6/17/1998 • Repealed and Adopted new 30 TAC 116.13.

• Subchapter B—New Source Review Permits • Division 1—Permit Application

Section 116.110 ...... Applicability ...... 11/29/1994 11/16/1994 • Revised (a) to add reference to Flexible Per- mits. 7/22/1998 6/17/1998 • Repealed and adopted a new 30 TAC 116.110.

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TABLE 2—SUMMARY OF EACH REGULATION THAT IS AFFECTED BY THIS ACTION—Continued

Date sub- Date adopted Section Title mitted by State Comments

• Included reference to Flexible Permits in new 30 TAC 116.110(a)(3).

• Subchapter G—Flexible Permits

Section 116.710 ...... Applicability ...... 11/29/1994 11/16/1994 • Initial adoption. 7/22/1998 6/17/1998 • Revised subsection (a). • Removed subsection (b) and • Redesignated existing subsections (c)–(e) to subsections (b)–(d). • Revised subsections (b)–(d) as redesignated. 9/11/2000 8/9/2000 • Revised subsection (b). Section 116.711 ...... Flexible Permit Application .. 11/29/1994 11/16/1994 • Initial adoption. 7/22/1998 6/17/1998 • Revised introductory paragraph and para- graphs (1)–(5); • Added new paragraphs (6) and (11): • Redesignated existing paragraphs (6)–(9) to paragraphs (7)–(10) and existing paragraphs (10)–(11) to paragraphs (12)–(13); and • Revised paragraphs (8)–(10) as redesig- nated. 4/12/2001 3/7/2001 • Added new paragraph (12); and • Redesignated existing paragraphs (12)–(13) to paragraphs (13)–(14). 9/4/2002 8/21/2002 • Designated existing as subsection (a); • Added new subsection (b); and • Revised paragraphs (a)(8)–(11) as redesig- nated. Section 116.714 ...... Application Review Sched- 11/29/1994 11/16/1994 • Initial adoption. ule. 7/22/1998 6/17/1998 • Revised introductory paragraph. Section 116.715 ...... General and Special Condi- 11/29/1994 11/16/1994 • Initial adoption. tions. 7/22/1998 6/17/1998 • Revised subsection (a), and paragraphs (c)(3)–(6), and (9)–(10). 9/11/2000 8/9/2000 • Revised subsection (a). 4/12/2001 3/7/2001 • Revised paragraph (c)(3). 9/4/2002 8/21/2002 • Revised paragraph (c)(9). 9/25/2003 8/20/2003 • Revised paragraphs (c)(1) and (c)(9). Section 116.716 ...... Emission Caps and Indi- 11/29/1994 11/16/1994 • Initial adoption. vidual Limitations. Section 116.717 ...... Implementation Schedule for 11/29/1994 11/16/1994 • Initial adoption. Addition Controls. Section 116.718 ...... Significant Emission In- 11/29/1994 11/16/1994 • Initial adoption. crease. Section 116.720 ...... Limitation on Physical and 11/29/1994 11/16/1994 • Initial adoption. Operational Changes. Section 116.721 ...... Amendments and Alterations 11/29/1994 11/16/1994 • Initial adoption. 7/22/1998 6/17/1998 • Revised paragraphs (b)(2) and (d)(1)–(2). 9/11/2000 8/9/2000 • Revised subsection (d) and paragraph (d)(1). Section 116.722 ...... Distance Limitations ...... 11/29/1994 11/16/1994 • Initial adoption. 9/11/2000 8/9/2000 • Revised introductory paragraph. Section 116.730 ...... Compliance History ...... 11/29/1994 11/16/1994 • Initial adoption. 7/22/1998 6/17/1998 • Revised introductory paragraph. Section 116.740 ...... Public Notice and Comment 11/29/1994 11/16/1994 • Initial adoption. 7/22/1998 6/17/1998 • Designated existing text as subsection (a); and • Added new subsection (b). 10/25/1999 9/2/1999 • Revised subsections (a)–(b). Section 116.750 ...... Flexible Permit Fee ...... 11/29/1994 11/16/1994 • Initial adoption. 7/22/1998 6/17/1998 • Revised subsections (b)–(d). 9/11/2000 8/9/2000 • Revised subsection (d). 10/4/2002 9/25/2002 • Revised subsections (b)–(c). Section 116.760 ...... Flexible Permit Renewal ...... 11/29/1994 11/16/1994 • Initial adoption.

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C. Other Relevant Actions on the Texas Coalition, Robertson County: Our Land, rely on wind power, solar energy, and Permitting SIP Revision Submittals Our Lives, Texas Protecting Our Land, natural gas as clean alternatives to coal. The Settlement Agreement in BCCA Water and Environment, Citizens for a Other comments expressed general Appeal Group v. EPA, Case No. 3:08– Clean Environment, Multi-County concerns related to: Impacts on global cv–01491–N (N.D. Tex), as amended, Coalition and Citizens Opposing Power warming, lack of commitment by TCEQ currently provides that EPA will take Plants for Clean Air. to protect air quality, the need for clean energy efficient growth, impacts upon final action on the State’s Public A. General Comments human health, endangerment of Participation SIP revision submittal by Comment 1: The following October 29, 2010. EPA intends to take wildlife, impacts on creation of future commenters support EPA’s decisions to jobs in Texas, plus numerous other final action on the submitted NSR SIP disapprove the Flexible Permits State similar concerns. by August 31, 2010, as provided in the Program: HCPHES; several members of Response: To the extent that the Consent Decree entered on January 21, the Texas House of Representatives; the SCMS letters comment on the proposed 2010 in BCCA Appeal Group v. EPA, Sierra Club; the City of Houston, and the disapproval of the Flexible Permits Case No. 3:08–cv–01491–N (N.D. Tex). Clinic. Program, they support EPA’s action to EPA published its final action on the Response: Generally, these comments disapprove the Flexible Permits Texas Qualified Facilities Program and support EPA’s analysis of Texas’s submission. The remaining comments its associated General Definitions on Flexible Permits Program as discussed are outside the scope of our proposed April 14, 2010 (See 75 FR 19467) as in detail at 74 FR 48480, at 48485– action relating to the Flexible Permits provided in the Consent Decree. 48494, and further support EPA’s action Program. Additionally, EPA acknowledges that to disapprove the Flexible Permits Comment 3: The Clinic comments TCEQ is developing a proposed Program submission. that EPA should issue an immediate SIP rulemaking package to address EPA’s Comment 2: The SCMS sent call for Texas’ failure to enforce the concerns with the current Flexible numerous similar letters via e-mail that current SIP and should require those Permits rules. We will, of course, relate to this action. These comments facilities operating under a Flexible consider any rule changes if and when include 1,789 identical letters (sent via Permit to apply for a SIP-approved they are submitted to EPA for review. e-mail), which support EPA’s proposed permit. However, the rules before us today are ruling that major portions of the TCEQ Response: This final rulemaking only those of the current Flexible Permits air permitting program do not adhere to addresses the approvability of the Texas Program, and we have concluded that the CAA and should be thrown out. Flexible Permits Program as a SIP the current Program is not approvable While agreeing that the proposed revision submittal. Therefore, comments for the reasons set out in this notice. disapprovals are a good first step, the related to other EPA action are outside commenters state that EPA should take III. Response to Comments the scope of our proposed action bold actions such as halting any new air relating to the Flexible Permits Program. In response to our September 23, pollution permits being issued by TCEQ Comment 4: The ERCC comments that 2009, proposal, we received comments utilizing TCEQ’s current illegal policy; to avoid negative economic from the following: Baker Botts, L.L.P., creating a moratorium on the operations consequences EPA should exercise on behalf of BCCA Appeal Group of any new coal fired power plants; enforcement discretion statewide for (BCCA); Baker Botts, L.L.P., on behalf of reviewing all permits issued since TCEQ sources that obtained government Texas Industrial Project (TIP); Bracewell adopted its illegal policies and requiring authorization in good faith and as & Guiliani, L.L.P., on behalf of the that these entities resubmit their required by TCEQ, the primary Electric Reliability Coordinating applications in accordance with the permitting authority. EPA should not Council (ERCC); Gulf Coast Lignite Federal CAA; and putting stronger rules require any injunctive relief and should Coalition (GCLC); Office of the Mayor— in place in order to reduce global- consider penalty only cases. City of Houston, Texas (City of warming emissions and to make sure Response: EPA enforcement of the Houston); Harris County Public Health new laws and rules do not allow CAA in Texas is outside the scope of and Environmental Services (HCPHES); existing coal plants to continue our proposed action relating to the Sierra Club—Houston Regional Group polluting with global warming Flexible Permits Program. (Sierra Club); Sierra Club Membership emissions. Comment 5: TIP, BCCA, TAB, and Services (including 2,062 individual The commenters further state that TxOGA comment that the Federal NSR comment letters) (SCMS); Texas Texas: (1) Has more proposed coal and SIP regulations recognize the Chemical Council (TCC); Texas petroleum coke fired power plants than importance of providing operational Commission on Environmental Quality any other State in the Nation; (2) Is flexibility. In 1990, Congress added (TCEQ); Members of the Texas House of number one in carbon emissions; and Title V to the CAA and it specifies that Representatives; Texas Association of (3) Is on the list for the largest increase State Title V programs must include Business (TAB); Texas Oil and Gas in emissions over the past five years. provisions to allow changes within a Association (TxOGA); and University of Strong rules are needed to make sure the permitted facility without requiring a Texas at Austin School of Law— coal industry is held responsible and permit revision if the changes are not Environmental Clinic on behalf of that no permits are issued under TCEQ’s modifications under any provision of Environmental Integrity Project (the illegal permitting process. Strong Title I of the Act and do not exceed the Clinic), Environmental Defense Fund, regulations are vital to cleaning up the emissions allowable under the permit Galveston-Houston Association for energy industry and putting Texas on a (whether expressed therein as a rate of Smog Prevention, Public Citizen, path to clean energy technology that emissions or in terms of total Citizens for Environmental Justice, boosts economic growth, creates jobs in emissions). See section 502(b)(10) of the Sierra Club Lone Star Chapter, Texas, and protects the air quality, Act. In order to provide operational Community-In-Power and Development health, and communities. flexibility, EPA adopted 40 CFR Association, KIDS for Clean Air, Clean In addition, SCMS sent 273 similar 70.4(b)(12) which requires that States Air Institute of Texas, Sustainable letters (sent via e-mail) that contained establish Title V programs that allow Energy and Economic Development additional comments that Texas should three specific avenues to establish

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operational flexibility, including of emissions caps in permits in MRR. Paragraph (c)(6) of submitted 30 establishment of federally-enforceable promulgating its NSR Reform in 1996 TAC 116.715 generally requires emission caps in their Title V programs. and 2002. These advantages include the maintenance of data sufficient to See 40 CFR 70.4(b)(12)(iii). EPA ability to make changes an emissions demonstrate continuous compliance emphasized the importance of enabling cap that do not require a permit for each with emission caps and individual plant sites to maintain operational change so long as the plant’s emissions emission limits contained in the flexibility in the preamble of to 40 CFR do not exceed the cap rather than face Flexible Permit. That is all. To contrast, part 70. See 57 FR 32250, at 32267 (July piecemeal applicability decisions for the submitted Flexible Permit Program 21, 1992). each and every contemplated change. lacks the specific requirements of Response: EPA acknowledges that the EPA further noted environmental another cap-base program, the Federal Title V Federal program requirements benefits that could result from PALs PAL SIP rule. The Federal PAL SIP rule allow a State to provide for operational because sources participating in a cap- requires that the program require each flexibility using the establishment of based program strive to create enough PAL permit to contain enforceable federally enforceable emissions caps. headroom for future expansion by requirements for the monitoring system EPA, however, must review the voluntarily controlling emissions. that accurately determines plantwide submitted Program as a SIP revision • EPA’s Proposed Indian Country emissions of the PAL pollutant in terms submittal under Title I of the Act, not Rule. In the 2006 proposed rule for of mass per unit of time. The PAL SIP Title V. We are not disapproving the Indian Country, EPA recognized the rule further provides that the submitted Program because it provides importance of flexibility in air monitoring system must be based upon for the establishment of emissions caps. permitting programs. EPA intended this sound science and meet generally As discussed in the proposal and this rule to be a representative template of acceptable scientific procedures for data final action, EPA is disapproving the State NSR programs that serve to quality and manipulation; and the submitted Program for inclusion in the provide operational flexibility while information generated by such system Texas NSR SIP because it is not leveling the regulatory playing field. • must meet minimum legal requirements enforceable, does not include any EPA’s Flexible Air Permit Rule. In for admissibility in a judicial replicable methodology for calculating October 2009, EPA promulgated the proceeding to enforce the PAL permit. the emissions caps, provides too broad Federal Flexible Air Permit rule, which The SIP requirements for an approvable director discretion regarding the incorporated changes to the Title V PAL monitoring system are the monitoring, recordkeeping, and rules that were intended to clarify and employment of one or more of the reporting (MRR) requirements, and lacks reaffirm opportunities for accessing following approaches: Mass balance sufficient MRR requirements. The operational flexibility under existing calculations for activities using coatings submitted Program fails to meet section regulations. EPA recognized that State or solvents, continuous emission permitting authorities have discretion to 110 and parts C and D of the Act and monitoring system, predictive emission pre-approve minor changes and re- the requirements of 40 CFR part 51. As monitoring system, continuous affirms pre-existing authority for State stated elsewhere in the proposal and parameter monitoring system, and throughout this final action, we have to craft flexible air permits. Response: EPA acknowledges that emission factors, if approved by the identified areas in which the submitted reviewing authority. The PAL SIP rule Program does not meet these statutory each of these cap-based permitting programs has resulted in, or has the provides the technical specifications for requirements. See 74 FR 48480, at each of the allowable monitoring 48490, 48491–48492, and 48492–48493; potential to result in, increased systems and provides replicable and sections III.D.3 and IV.C, for further operational flexibility and may enable procedures for the approval of any information. the owner or operator to make certain Comment 6: BCCA, TIP, TAB, and changes without the need to apply for alternative monitoring system. See 40 TxOGA comment on several Federal and receive a permit for each individual CFR 51.165(f)(12) and 51.166(w)(12). Flexibility Permitting rules in which change whenever the change does not The submitted Flexible Permit Program, EPA promotes permit flexibility. These result in emissions that exceed the cap. in contrast, is generic concerning the include the following: However, of the four identified types of monitoring that is required • Flexible Permit Pilot Study. EPA programs, one was a pilot study and one rather than identifying the employment focused on the importance of has not been finalized. The State did not of specific monitoring approaches, operational flexibility in a decade-long submit the Flexible Permits Program for providing the technical specifications Flexible Permit pilot study that consideration by EPA as a PALs NSR for each of the specific allowable included flexible emission cap permits SIP revision. Moreover, the submitted monitoring systems, and requiring in six states and found that flexible Flexible Permits Program does not meet replicable procedures for the approval permits worked well and could be used the minimum requirements contained in of any alternative monitoring system. It to further both environmental protection the PALs NSR SIP regulations, which also lacks the replicable procedures that and administrative flexibility. Both include procedures for establishing are necessary to ensure that (1) adequate States and EPA recognized the need to replicable emission caps, protecting the monitoring is required that would respond rapidly to market signals and NAAQS and control strategies, and MRR accurately determine emissions under demand in today’s increasingly global requirements sufficient to ensure the Flexible Permit cap, (2) the Program markets while delivering products compliance with the terms and is based upon sound science and meets faster, at lower cost, and of equal or conditions of the permit that establishes generally acceptable scientific better quality than their competitors. the emissions cap. As we discussed in procedures for data quality and EPA recognized that the flexible permits the proposal and now through this final manipulation; and (3) the information could reduce the administrative action, the submitted Flexible Program generated by such system meets ‘‘friction’’ of time, costs, delay, does not meet the requirements for the minimum legal requirements for uncertainty, and risk associated with establishment of replicable emissions admissibility in a judicial proceeding to certain types of operational changes. caps and sufficient MRR requirements. enforce the Flexible Permit. • Plantwide Applicability Limits The submitted Program has no specific, The Federal Flexible Air Permit Rule, (PALs). EPA recognized the advantages only general, requirements pertaining to although it is not a NSR SIP program but

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a Title V program that provides for an Even if the commenters’ premises are director discretion concerning whether alternative NSR SIP approach, is a cap to be accepted, they fail to substantiate or not to include a MRR condition in a program but it too requires replicable their claim that the Texas Flexible Flexible Permit, lacks sufficient MRR methodologies and sufficient MRR Permit Program has had a significant requirements, and there is not sufficient requirements. The submitted Program impact on improving air quality in information to enable EPA to make a does not contain a replicable Texas by producing data showing that finding that the submitted Program will methodology for establishing the any such gains are directly attributable protect the NAAQS and control emissions cap and sufficient MRR to the submitted Program, and are not strategies. See section III.A (response to requirements. See 74 FR 48480, at attributable to the SIP-approved control comment 6) for further information. 48490, 48491–48492, and 48492–48493; strategies (both State and Federal and sections III.D.3 and IV.C, for further programs) or other Federal and State B. Whether the Flexible Permits Program information. Finally, see section III.D.3 programs. They provide no explanation Is Clearly a Minor, not a Major, NSR SIP (response to comment 4) concerning or basis for how their numbers were Revision MRR for the proposed Indian Country derived. Moreover, since the submitted Comment 1: TCEQ comments that Minor NSR rule. Program is not enforceable, claims of though it has always considered the Comment 7: GCLC, TIP, BCCA, and emission reductions are not assured on Flexible Permit Program to be a Minor TCC comment that EPA ignores the fact a continuous basis. NSR program, this fact is not that the Texas Flexible Permit Program EPA is not required to initiate the SIP specifically stated in the rule. TCEQ, has had a significant impact on consistency process within EPA unless nevertheless, asserts that its improving air quality in Texas. TCEQ the pending SIP revision appears to implementation of the Program includes commented that significant emission meet all the requirements of the Act and a review process that always determines reductions have been achieved by the EPA’s regulations but raises a novel the applicability of Federal Major NSR, submitted Program through the large issue. EPA is disapproving the as well as any other Federal and State number of participating grandfathered submitted Program because it fails to requirements. The TCEQ states that it facilities, which resulted in improved meet the Act and EPA’s regulations. understands EPA’s concerns regarding, air quality based upon the monitoring Because the submitted Program fails to among other things, applicability, data. meet the requirements for a SIP clarity, enforceability, replicable BCCA, TAB, TxOGA, and ERCC revision, the SIP consistency process is procedures, recordkeeping, and comment that the legal standard for not relevant. compliance assurance. evaluating a SIP revision for approval is Furthermore, since the commenters Response: We acknowledge TCEQ’s whether the submitted revision thought EPA was acting inconsistently, description that it intends to implement mitigates any efforts to attain they should have identified SIPs that are the submitted Program in such a manner compliance with a NAAQS. EPA’s inconsistent with our actions and that the submitted Flexible Permit failure to assess the single most provided technical, factual information, Program does not supersede the duty to important factor in the submitted not bare assertions. comply with the Texas Major NSR SIP. Comment 8: BCCA and ERCC Program, the promotion of continued air In contrast to the submitted Program, comment that the concepts embedded in quality improvement, is inconsistent however, in its Minor NSR SIP for the Program have been part of the Title with case law and the Act and is a Permits by Rule and Standard Permits, V, NSR, and PAL programs for many deviation from the SIP consistency TCEQ included additional regulatory years and were upheld as consistent process and national policy. EPA should language that explicitly prohibits the with the Clean Air Act by the U.S. perform a detailed analysis of approved use of the Permits by Rule alternative Supreme Court in Chevron v. NRDC, SIP programs through the United States permit program and the Standard and initiate the SIP consistency process 467 S.C. 837 (June 25,1984). Texas’ Permits alternative permit program from within EPA to ensure fairness to Texas Program is actually more stringent than being used for major stationary sources industries. EPA’s interpretation of the NSR program Response: We are disapproving the upheld by the Supreme Court. and major modifications and explicitly Response: The U.S. Supreme Court prohibits circumvention of the Major submitted Program because it is not 1 enforceable, it lacks an objective, found, in the cited case, that the NSR requirements. Specifically, the replicable methodology for pertinent legislative history was silent Standard Permits and Permits by Rule establishment of the emissions caps, it on the precise issue of the bubble NSR SIP rules explicitly require a Major provides broad director discretion concept as it related to what constituted NSR applicability determination at 30 concerning whether or not to include a a major stationary source and found that TAC 116.610(b) and 30 TAC 106.4(a)(3). MRR condition in a Flexible Permit, EPA should have wide discretion in In each, the State specifically expressed lacks sufficient MRR requirements, is implementing the policies of the 1977 its intention to require a Major NSR ambiguous regarding circumvention of amendments. Id at 862. This opinion is applicability determination. The Major NSR, and there is not sufficient not relevant to EPA’s grounds for Flexible Permits Program is also an information to enable EPA to make a disapproving the submitted Program. alternative permit program. If the State finding that the submitted Program will Not only is it not relevant but none of wishes for it to be considered as solely protect the NAAQS and control the concepts cited by the commenters a Minor NSR SIP revision submittal, the strategies. EPA is required to review a was before the Court in Chevron. EPA’s TCEQ should have included express SIP revision submission for its disapproval is not based on a per se language stating that it explicitly compliance with the Act and EPA finding that a preconstruction program 1 Although the Texas Minor NSR SIP rules for regulations. CAA 110(k)(3); See also based on emissions caps is unacceptable Permits by Rule and Standard Permits remain BCCA Appeal Group v. EPA, 355 F 3d. or more or less stringent than the SIP acceptable for a Minor NSR SIP revision, EPA is 817, 822 (5th Cir. 2003); Natural requirements. We are disapproving the conducting a review of each individual Permit by Resources Defense Council, Inc. v. submitted Program because it is not Rule and/or Standard Permit. EPA is conducting this review to ensure that the TCEQ is Browner, 57 F.3d 1122, 1123 (D.C Cir. enforceable, it lacks a replicable implementing the SIP appropriately and that each 1995). Also see section III.A (response to methodology for establishment of the such individual Minor NSR SIP permit protects the comment 6) for further information. emissions caps, it provides broad NAAQS and control strategies and is enforceable.

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prohibits the use of the Flexible Permit C. Whether the Flexible Permits Program it is clear that the Major NSR Program from being used for major Meets the Requirements for a Substitute applicability determination stationary sources and major Major NSR SIP Revision requirements are required before one can use the Program, and that the modifications and explicitly prohibits 1. General Comment on Whether the requirements of the appropriate Major circumvention of the Major NSR Program Is a Substitute Major NSR SIP NSR permitting program are met when requirements, as it did in the two other Revision Minor NSR alternative permit options. triggered. Nonetheless, EPA must Comment: TCEQ comments that it did This submitted Program lacks such review the content of the Program as not view the Flexible Permit Program as submitted for inclusion into the Texas language. While the inclusion of such a substitute Major NSR SIP revision specific language is not ordinarily a SIP. The submitted Program’s when it adopted it nor does it wish for regulations do not contain any emission minimum NSR SIP program element, we it to be considered as a SIP revision limitations, applicability statement, or conclude that the inconsistent treatment submittal for a substitute Major NSR SIP regulatory provision restricting the between the similar types of NSR revision. It has always viewed the construction or change to Minor NSR as programs creates the potential for an Program as a Minor NSR program. In its was included in the SIP rules for unacceptable ambiguity about a permit implementation of the Program, TCEQ Standard Permits and Permits by Rule. holder’s obligations to continue to comments that it requires a Federal See section III.B (response to comment comply with the Major NSR applicability demonstration but 1) for additional information. requirements. acknowledges that the submitted Comment 2: TAB, TxOGA, TIP, and EPA reviews a SIP revision Program’s rules are not clear on this BCCA comment that there are submission for its compliance with the point. TCEQ states that it will confirm safeguards in the Texas Flexible Permit through upcoming rulemaking and SIP Act and EPA regulations. CAA rules at 30 TAC 116.711(1), (8), (9), revision that the Program is not a 110(k)(3). See also BCCA Appeal Group 116.718, and 116.720 that constrain substitute Major NSR SIP revision. regulated community from making v. EPA, 355 F 3d. 817, 822 (5th Cir. Response: EPA appreciates TCEQ’s major changes without complying with 2003); Natural Resources Defense statement that it does not view its Major NSR requirements. Council, Inc. v. Browner, 57 F.3d 1122, Flexible Permit Program as a substitute Response: The regulations cited by 1123 (D.C. Cir. 1995). This includes an Major NSR SIP revision submittal. the commenters do not explicitly analysis of the submitted regulations for However, EPA must review the content require sources to comply with the their legal interpretation. The Program’s of the Program as submitted for Major NSR rules. 30 TAC 116.711(1) rules are ambiguous and therefore inclusion into the Texas SIP. The provides for protection of public health unapprovable. See 74 FR 48480, at submitted Program is ambiguous when and welfare and does not address 48485–48487 for further information. compared to the regulatory structure of applicability of Major NSR. 30 TAC Comment 2: TCC notes that 30 TAC existing similar Texas Minor NSR SIP 116.711(8) and (9) generally require 116.711 identifies the use of Flexible programs, as it contains no express compliance with all applicable Permits as only a Minor NSR option and provision that clearly limits the Program requirements for nonattainment and concludes that TCEQ’s rules therefore to Minor NSR and no explicit provision PSD review within that Chapter of the that prohibits circumvention of the rules. Despite commenters contentions do not intend for the Flexible Permits Major NSR SIP requirements. See 74 FR there are no express terms or Program to be an equivalent to a Major 48480, at 48488 and section III.B requirements within the cited rules that NSR program. (response to comment 1) of this notice compel a Major NSR applicability Response: We disagree that 30 TAC for further information. determination. The cited regulations do 116.711 identifies the use of Flexible not contain any emission limitations, 2. Requirements for Major NSR Permits as only a Minor NSR permitting applicability statement, or regulatory Applicability Determinations option. Contrary to commenter’s provision restricting the construction or assertion, this rule merely replicates Comment 1: Although TCEQ change to Minor NSR or clearly certain general permitting requirements comments that the Flexible Permit prohibiting circumvention of Major that are also common to Subchapter B, Program requires that the applicability NSR, as was included in the SIP rules that also apply to all Texas Major and of Major NSR requirements be evaluated for Standard Permits and Permits by Minor NSR SIP permits. There are no prior to considering whether the new Rule. The absence of such provisions in requirements or terms in 30 TAC construction or modification can be the submitted Flexible Permit rules authorized under a Flexible Permit, 116.711 that expressly identify use of creates an unacceptable ambiguity. 30 TCEQ also comments that it Flexible Permits as only a Minor NSR TAC 116.718 and 116.720 do not understands EPA’s concerns with issues address Major NSR. See section III.B option. As noted above in section III.B regarding Major NSR applicability vis a (response to comment 1) for additional (response to comment 1), the TCEQ vis the submitted Program, based upon information. should have included express the application of today’s legal Comment 3: ERCC comments that the additional regulatory language requirements. TCEQ undertakes to concepts embedded in the Flexible prohibiting the use of the submitted consider rulemaking to ensure Major Permit Program have been a part of the Program for Major NSR and explicitly NSR applicability requirements are NSR program for many years and are prohibiting circumvention of the Major included in Flexible Permit reviews, well-settled law. The fact that the NSR requirements, as it did in the two and that the requirements of the emission rates used in the calculation of other Minor NSR SIP alternative permit appropriate Major NSR permitting the cap(s) are reflected in a ‘‘bubble’’ options. program are met when triggered. permit is of no consequence and is Response: EPA appreciates TCEQ’s consistent with applicable statutory and understanding that the Program lacks regulatory requirements under the Clean clarity on the issue of the applicability Air Act. of Major NSR requirements and that the The submitted Program explicitly State plans to revise its rules to ensure requires any new source or major

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modification that is applying for a upon an agency to continue to severable from the Flexible Permits Flexible Permit to go through Major implement a program consistently with Program. NSR review and if necessary, have the the Federal requirements even though 4. Use of Allowable Emissions in Major Flexible Permit altered. not constrained to do so by its rules, NSR Response: EPA disagrees with these makes EPA, the agency, industry, and comments. First, the submitted Program the public vulnerable to the agency’s Comment: TCC, TAB, and TxOGA has not been a part of the Texas NSR SIP unfettered discretion to change how it comment that when TCEQ is evaluating ‘‘for many years.’’ Therefore, it is not implements its program. emissions increases on a project level, ‘‘well-settled law.’’ Furthermore, any In this instance, there is no express the Program requires the use of actual source operating under a Flexible provision in the submitted Subchapter baseline emissions to determine Permit risks potential Federal G similar to the Minor NSR SIP whether a project will result in an enforcement action. Second, it is being provisions for Minor NSR SIP Permits increase that triggers Major NSR disapproved today because of not by Rule and Standard Permits that applicability. TCC further states that the meeting the Federal NSR SIP prohibit circumvention of the Major application of BACT to facilities subject requirements, not because it embeds the NSR requirements. Both the SIP- to the emission cap results in an concepts of a cap program. The codified rules for Permits by Rule and allowable that is lower than the pre- commenter’s comments are also at odds the SIP-codified rules for Standard change actual emissions. with TCEQ’s comments. TCEQ Permits contain clear regulatory Response: As noted above in the comments that its Program is intended provisions prohibiting the use of these preceding response, EPA must evaluate to be a Minor NSR SIP program only Minor NSR permits from circumventing the submitted Program based upon the and not intended to address Major NSR Major NSR. There are no regulatory content of the regulations and SIP requirements. In contrast, the provisions prohibiting circumvention of associated record that have been commenter describes the submitted Major NSR in the submitted Chapter submitted and are currently before EPA Program as covering major 116, Subchapter G, for Flexible Permits. for appropriate approval or disapproval modifications and having a Flexible See 74 FR 48480, at 48488 and section action. The commenters are not clear Permit (not a Major NSR SIP permit) III.B (response to comment 1) for further whether they are referring to PSD BACT altered to reflect the Major NSR review. information. The BACT analysis that or the Texas Minor NSR SIP BACT. This TCEQ disputes this concept in its TCEQ references for establishing the cap lack of specificity by industry comments. See our response to TCEQ’s upon a plain reading of the rules and contributes to EPA’s concerns about comments section III.C.3 (response to the associated Texas Registers means whether the submitted Program is comment 1). the Texas Minor NSR SIP BACT clearly limited to Minor NSR. We 3. Circumvention of Major NSR requirement, not the PSD Major NSR recognize that the application of either Comment 1: TCEQ comments that it SIP BACT requirement. The failure to type of BACT to facilities subject to the understands EPA concerns regarding the distinguish in the Program’s rules that it emission cap could result in allowable ‘‘the lack of specificity’’ in its rules but is Minor NSR SIP BACT that is used to emissions that are lower than the pre- maintains that the Program does not create the cap contributes to the change actual emissions at the initial circumvent Federal Rules. TCEQ confusion of the reach of the Program. issuance of a Flexible Permit. However, maintains that its implementation of the Comment 2: TCC and ERCC comment the commenter provided no information submitted rules includes Federal that the Flexible Permit Program does to show a comparison of actual emission applicability review that includes not circumvent Major NSR review. The to potential to emit for changes that determination of actual rates, project Program is explicit in that any new occur after the Flexible Permit is issued emission increases, and net emission major stationary source or major to evaluate that the net emission increases. It also includes BACT modification must go through Major increase is based upon changes from analysis to establish the cap, NAAQS NSR and the Flexible Permit must be baseline actual to either projected actual and increment analysis if PSD is altered. See 30 TAC 116.805. Moreover, emissions or potential to emit. In such triggered; and LAER and offsets if the Flexible Permits employ two case, the baseline actual emissions Nonattainment Review is triggered. emissions cap, an initial cap and a final resulting from such proposed change TCEQ states that its implementation cap, which combine to ensure that the must be established as provided under also includes a Federal Major NSR Major NSR permitting requirements are applicable Federal requirements. See 40 Review which is conducted parallel not circumvented. CFR 51.165(a)(2)(ii) and (a)(1)(vi)(A)(2) with the Minor NSR Review and TCEQ Response: EPA disagrees with and 51.166(a)(7)(iv)(c)–(d) and does not allow applicant to use Flexible commenters. Unlike the Texas Minor (b)(3)(i)(b). Accordingly, there are no Permits to circumvent Major NSR. NSR SIP rules for Permits by Rule and provisions in the Program that require TCEQ plans to confirm EPA’s concerns Standard Permits, the submitted the use of actual baseline emissions to in future rulemaking. Program’s regulations do not contain determine whether a project will result Response: EPA appreciates TCEQ’s any express regulatory provision that in an increase that triggers Major NSR understanding of its concerns regarding prohibits circumvention of the Major applicability. See 74 FR 48480, at the ‘‘lack of specificity.’’ While it is NSR requirements. This lack of such 48489–48490, for further information. commendable that TCEQ may express provisions distinguishes the 5. Retention of Major NSR Permit Terms implement the Program in a manner Flexible Permit Program and contributes and Conditions consistent with the Federal Major NSR to its nonapprovability. See 74 FR requirements, we cannot approve the 48480, at 48488, and section III.B Comment: TAB, ERCC, and TxOGA Program as submitted. See CAA (response to comment 1) of this notice. comment that the submitted Program 110(k)(3). See also BCCA Appeal Group Furthermore, the referenced 30 TAC requires that conditions of an existing v. EPA, 355 F 3d. 817, 822 (5th Cir. 116.805 does not add an explicit PSD or Nonattainment permit be carried 2003); Natural Resources Defense requirement to the submitted Program. forward into a Flexible Permit. The Council, Inc. v. Browner, 57 F.3d 1122, Rather, it applies to a separate class of submitted Program does not ‘‘void’’ the 1123 (D.C. Cir. 1995). Moreover, relying Existing Facility Flexible Permits that is pre-existing Major NSR SIP permits.

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Response: The submitted Program requirements for enforceability as D. Whether the Flexible Permits does not explicitly provide that the specifying that SIP revision submittals Program Meets the Requirements for a holder of a Flexible Permit still be must ‘‘specify clear, unambiguous, and Minor NSR SIP Revision required to continue to comply with all measurable requirements.’’ See 57 FR at 1. Applicability for a Minor NSR of the terms and conditions in the pre- 13567. There must be legal means in a Program existing Major NSR SIP permits. Federal SIP revision for ensuring compliance NSR SIP regulations do not provide for when conditions of an existing PSD or Comment 1: The Clinic comments a blanket elimination of emission limits Nonattainment permit are carried that the Flexible Permit rules do not at individual units. The submitted forward in a Flexible Permit. The include adequate provisions for Program does not assure the retention of submitted Program does not contain ensuring that changes that should the pre-existing Major NSR SIP permits’ sufficient enforceable means. This trigger Major NSR are subject to terms and conditions. submitted Program is an intricate technology and air quality analysis EPA’s long-held position is that program, thus to be approved as a Major requirements. permits issued under federally approved (as well as a Minor) NSR SIP revision, Response: EPA agrees with this PSD, NNSR, and Minor NSR SIP it requires detailed MRR requirements comment. See section III.B (responses to programs must remain in effect because in order to ensure, among other things, comments 1 and 2), section III.C.1 they are the legal mechanism through that a project triggering the Major NSR (response to comment), and section which the underlying NSR requirements SIP requirements is covered under III.C.2 (responses to comments 1, 2, and (from the Act, Federal regulations, and Major NSR or there are adequate means 3), and section III.C.3 (responses to federally approved SIP regulations) for ensuring compliance of each affected comments 1 and 2) for further become applicable, and remain entity. information. Comment 2: TCC comments that the applicable, to individual sources. NSR Without clear, objective, requirements Flexible Permit authorization method programs enable the relevant permitting in the submitted Program for retaining used at a source does not exempt any authority to impose source-specific NSR and distinguishing the Flexible Permits terms and conditions in legally facilities located at a source from Major terms and conditions from the Texas NSR permitting requirements. If a enforceable permits, and provide states, Major NSR SIP permits terms and EPA, and citizens with the authority to source has a Flexible Permit that does conditions, the submitted Program lacks not contain all the facilities located at enforce these permits. SIP-approved clear, unambiguous, and measurable permits impose continual operational that source and a project within the requirements necessary for approval as Flexible Permit triggers netting, all requirements and restrictions upon a a SIP revision. The submitted Program source’s air pollution activities and, facilities (under the cap and outside the does not ensure the retention of the pre- cap) at the source are evaluated to accordingly, may not expire so long as existing Major NSR SIP permits’ terms 2 determine whether a net significant the source operates. and conditions. The lack of enforceability and emissions increase at the source has adequacy of the MRR requirements in 6. Protection of the NAAQS Attainment occurred. If a resulting net emissions the submitted Program contributes to Under Major NSR increase is significant, Major NSR is triggered. EPA’s concern that not all of the Comment: The Clinic comments that Response: We disagree with this conditions of a PSD or NNSR SIP permit the Program represents a relaxation of comment. See section III.D.1 (response existing before the issuance of a Flexible the current SIP and is inadequate to to comment 1, above) for further Permit were carried forward into the assure protection of the NAAQS, Flexible Permit fully and completely. information. increments, and control strategies. Comment 3: TIP, BCCA, and TCC See section III.A (response to comment Response: Without the required 6) for further information. The comment that TCEQ rules provide two demonstration from the State showing separate ‘‘modification’’ definitions. The submitted Program does not meet the how the customized Major NSR SIP requirements of section 110(a)(2)(A)–(C) first is at 30 TAC 116.12(18) for Major revision is in fact as stringent as EPA’s NSR applicability. The second is at 30 of the Act, which requires that SIP Major NSR revised program and revision submittals be enforceable. TAC 116.10(11) for Minor NSR sources without, among other things, an and does not limit its scope to federally Section 116.711(2) of the submitted objective, replicable methodology for Program provides that emissions will be regulated pollutants. EPA applies the establishing the emission cap, the too term ‘‘modification’’ differently in the measured ‘‘as determined by the broad director discretion provision for executive director.’’ This broad Minor NSR context and the Major NSR whether or not to include MRR context. Therefore, it also is within discretion lacks accountability, conditions in a Flexible Permit, the lack replicability and fails to provide for a Texas’s discretion to define the term of sufficient MRR requirements for this differently for purposes of Minor NSR. full evaluation of the enforceability of type of permit program, and the lack of permits issued under the Program. We Citing the EAB in In re Tennessee Valley enforceability of the submitted Program, Authority, 9 EAD 357,461 (EAB Sept. are concerned with the broad director EPA lacks sufficient information to discretion whether to include MRR 15, 2000) commenters maintain that make a finding that the submitted Texas has the discretion to define the requirements in a Flexible Permit and Program, as a substitute for a Major NSR the lack of adequacy of the MRR term differently for purposes of Minor SIP program, will ensure protection of NSR. requirements in the submitted the NAAQS, and noninterference with Program.3 EPA has interpreted the Act’s Response: EPA acknowledges that the Texas SIP control strategies and that TCEQ defines the term RFP, as required by section 110(l) of the 2 See EPA Letter from John Seitz, Director, Office ‘‘modification’’ differently for Major NSR of Air Quality Planning and Standards, to Robert Act. See section III.A (response to and for Minor NSR. However, the Hodanbosi and Charles Lagges, STAPPA/ALAPCO, comment 6) for further information. submitted Program does not specifically dated May 20, 1999. state which definition of modification it 3 EPA’s letter of March 12, 2008, on pages 12 to requirements up-front in a NSR program without 13 of the Enclosure provides some examples of, and requiring every director discretion decision to be uses the one for Major NSR or the one concepts on how to establish replicable adopted and submitted to EPA for approval as a for Minor NSR. This contributes to recordkeeping, reporting, tracking, and monitoring source-specific SIP revision. making the submitted Program not clear

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on its face that the Major NSR submitted Program, ensuring that it determine independently how the applicability requirements must be includes legally sufficient objective and source or the State will calculate an evaluated and met when triggered and replicable criteria for establishment of emission cap; determine the coverage of that the State is required under its the cap in each Flexible Permit and a Flexible Permit; establish individual submitted Program to apply the Major information submitted by the State to emissions limitations for each site, a NSR applicability concepts during the demonstrate that the program meets the facility on the site, a group of units on technical review of a Flexible Permit. requirements of the Act. Review based the site; or for one pollutant but not Therefore based upon the ambiguities in on the submittal, rather than improper another. Without a clearly defined the Program’s rules, we disagree that the implementation, is necessary to ensure replicable process for determining what Flexible Permit Program is exclusively a that as structured the submitted the process is, and how the emission Minor NSR program. EPA is required to Program does not interfere with NAAQS cap is adjusted for the addition of new review a SIP revision submission for its attainment, the Texas SIP control facilities, the public and EPA cannot compliance with the Act and EPA strategies, and RFP, and is enforceable independently calculate an emission regulations. This includes an analysis of pursuant to section 110(a) (2)(A)–(C) of cap and reach the same conclusions as the submitted regulations for their legal the Act. The September 23, 1987, the State. Therefore, the submitted interpretation. The Program’s rules are Memorandum from J. Craig Potter, Program is unapprovable. This ambiguous and therefore do not Assistant Administrator for Air and conclusion was reached based on our adequately prohibit use under Major Radiation, and Thomas L. Adams Jr., review of the submitted Program NSR. See section III.B (response to Assistant Administrator for Enforcement pursuant to the CAA. comment 1) for further information. and Compliance Monitoring, entitled 3. Enforceability of a Minor NSR ‘‘Review of State Implementation Plans 2. Establishment of the Emission Cap Program and Revisions for Enforceability and Under Minor NSR Legal Sufficiency’’ provides EPA’s Comment 1: TCEQ comments that Comment: TIP and BCCA comment guidance for interpreting this provision although the submitted rules do not that the submitted Program’s rules do in the Act. A copy of this document is specify special conditions that ensure contain an established and replicable in the docket at document ID EPA–R06– recordkeeping, reporting, and testing to method for determining an emissions OAR–2005–TX–0032–0022.4 See also assure compliance with the Flexible cap. TAB and TxOGA comment that the ‘‘General Preamble for the Permit, the State issues Flexible Permits EPA provides no example of any Implementation of Title I of the Clean containing special conditions requiring unsuccessful attempt to replicate an Air Act Amendments of 1990,’’ (GP) 57 periodic stack testing, continuous emission cap using the current TCEQ FR 13498 at page 13556 (April 10, emissions monitoring, and other rules. TAB and TxOGA comment that 1992). parametric monitoring requirements, the submitted Program requires that The submitted Program establishes a along with recordkeeping requirements each Flexible Permit establish a cap by cap in a Flexible Permit that is a to ensure compliance with the Flexible simple summation of BACT emission summation of BACT requirements (or a Permit cap and BACT. Because of the rates. Each Flexible Permit involves the more stringent requirement if wide variety of industrial source types, summing of BACT emission rates. While applicable). The submitted rules are not TCEQ has carefully drafted its rules to BACT determinations may vary between clear as to how the State does the ensure it has the ability to adequately specific types of sources, the use of summation. Even the State fails in its implement specific and detailed MRR Federal and State BACT guidance comment letter to clarify whether the requirements. TCEQ will address EPA results in a replicable procedure for cap includes the summation of not only concerns in a forthcoming rulemaking establishing caps. In addition, the the minor stationary sources and minor and SIP revision. authorization under a Flexible Permit modifications but also the major Response: Although TCEQ plans in a has no effect on sources or pollutants stationary sources’ and major future rulemaking action to add specific not covered in the Flexible Permit for a modifications’ emissions limitations. conditions as part of the Program to particular site. Both sources and This failure to clarify the methodology address MRR requirements, the emissions that are not incorporated into for the establishment of the cap submitted Program lacks these a Flexible Permit are subject to whatever contributes to the ambiguity of the requirements. See section III.A (response to comment 6) for further rules or authorizations are in effect or submitted Program. Specific, objective, information. EPA must evaluate the should be applied to those emissions. and replicable criteria are to be set forth Program based upon the content of the An applicant for a Flexible Permit is for determining the emissions cap. required to meet BACT standards as The commenter states that if a source regulations and associated record that applicable to all facilities individually or emissions are not covered under a have been submitted and are currently contributing to an emission cap. In Flexible Permit, then they are subject to before EPA for appropriate approval or addition to an emission cap, a Flexible whatever rules or authorizations are in disapproval action. Any SIP revision Permit may also impose individual effect or should be applied to those must have adequate recordkeeping, reporting, testing, and monitoring emission limits where necessary to emissions. EPA is however concerned requirements to assure there can be ensure satisfaction of off site screening that it is not clear which facilities are compliance with the submitted plan and levels of hazardous air pollutants or covered by a Flexible Permit. The ensure that the plan is enforceable, as NAAQS for criteria pollutants, or to submitted Program does not clearly well as ensure that each affected entity prevent violation of any Federal delineate which emissions are covered can be easily identified and that there permitting requirement. by a Flexible Permit. EPA proposed are means to determine its compliance. Response: The proper scope of review disapproval because the submittal lacks See New York I, 413 F.3d at 33–36. for this SIP revision submittal does not specific, established, replicable There is further discussion in the include a review of the State’s procedures providing available means to individually issued Flexible Permits to General Preamble about EPA’s determine whether there are replicable 4 You can access this document directly at: http:// interpretation of the Act’s requirements caps in each permit. Instead, EPA’s www.regulations.gov/search/Regs/home.html# for enforceability and that submitted review is focused on the structure of the documentDetail?R=0900006480a2bccd. rules must ‘‘specify clear, unambiguous,

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and measurable requirements.’’ See the The submitted Program lacks Permit continue to be met. Paragraph GP 57 FR 13498 at page 13567. provisions explicitly addressing the (c)(6) of submitted 30 TAC 116.715 Comment 2: The City of Houston type of MRR requirements that are generally requires maintenance of data states that it has long opposed the use necessary to ensure that all of the sufficient to demonstrate continuous of Flexible Permits. Quoting its movement of emissions between the compliance with emission caps and comments on TCEQ’s proposed renewal emission points, units, facilities, plants, individual emission limits contained in of the Flexible Permit issued to a etc., still meet the cap for the pollutant, the Flexible Permit but lacks the ‘‘ refinery in Houston, it states that [t]he still meet the individual emissions necessary specificity and replicability permit terms violate Federal law and are limitations, and still meet any other needed to ensure the enforceability of not federally enforceable. This refinery applicable State or Federal requirement. the submitted Program and the (and others) could have sought other In addition, there are no limits on the protection of the NAAQS and control SIP-approved permitting.’’ The City of types of sources that can be included in Houston also noted that the structure of the cap. It is also difficult to quantify strategies. See section III.A (response to the Flexible Permit Program fails to emissions from some units, such as comment 6) for further information. assure compliance with the Major NSR tanks, fugitive emissions from leaking Comment 4: TIP, BCCA, TAB, and requirements and that these Flexible valves, or wastewater emissions points TxOGA note that TCEQ also may Permits are essentially unenforceable. that can be included in a Flexible impose additional recordkeeping The City of Houston strongly supports Permit under this Program. requirements appropriate for a specific the EPA’s decision to seek the changes Without specialized MRR source covered by a Flexible Permit. necessary in the Flexible Permit requirements, it is difficult for EPA or The submitted Program’s rules Program to make it federally the public to determine which units are contemplate that additional enforceable, consistent with the CAA covered by a Flexible Permit, which recordkeeping requirements may be and ensure that emissions are controlled modifications to non-covered units are tailored to the type of source covered by and reduced from the State’s largest covered by a Flexible Permit, whether a a Flexible Permit. TIP comments that sources of pollutants. covered unit is subject to the emission the submitted Flexible Permits rules are Response: EPA agrees with these cap or an individual emission comments. Texas has opted for a limitation, whether a unit is subject to as stringent as EPA’s proposed Indian program that allows the permit holder to both the cap and a limitation, or Country Minor NSR rules. This select which new facilities and/or new whether a cap or a limitation applies commenter claims that with respect to modifications to include under the and at what time. emission events and maintenance, umbrella of a Flexible Permit. The Comment 3: TIP, BCCA, TAB, and startup, and shutdown emissions (SSM), submitted Program fails to provide clear TxOGA comment that the submitted the submitted rules go far beyond criteria for determining what type of Program contains comprehensive and Federal benchmarks because they MRR requirements are needed and stringent provisions for monitoring, require compliance with 30 TAC furthermore leaves the choice to the recordkeeping, and reporting. These are 101.201 and 101.211. Section 101.201 director, including whether to include more than adequate to ensure includes record-keeping requirements to any MRR requirements in a Flexible compliance on the part of permit report all reportable and non-reportable Permit. See section III.A (response to holders, enforceability by TCEQ, and emissions events within two weeks, comment 6) for further information. protection of public health. See 30 TAC which in the view of this commenter is Without the appropriate specialized 116.715(c). They require the regulated more stringent than the ‘‘prompt’’ MRR requirements, it is generally community to monitor and submit reporting requirement of the proposed impractical to determine for instance, information sufficient to safeguard Indian Country counterpart. Again which emission points are covered, environmental quality. citing Section 101.201, commenter which modifications of existing non- Response: EPA disagrees with claims the record retention covered emission points are covered, commenters. The commenters failed to etc. Texas also chose to allow both a cap point to any such specific provisions. requirements of the submitted Program and an individual emission limitation to The submitted Program lacks adequate for records of reportable and non- apply to selected units, or just the cap, program requirements for the tracking of reportable emissions events are similar or just the individual emission existing SIP permits’ major and minor to their proposed Indian Country limitation. Without the appropriate NSR terms, limits and conditions, and counterparts. MRR requirements, it is generally whether such requirements are Response: EPA disagrees with this impractical to determine if a covered incorporated into a Flexible Permit or comment. Commenters’ reliance upon unit is subject to the cap or an they remain outside the coverage of the the Texas rules for malfunction individual emission limitation, if a unit Flexible Permit. Minor and Major NSR emissions and maintenance, startup, is subject to both the cap and a permits, as well as Minor NSR SIP and shutdown emissions is misplaced. limitation, or whether a cap or a Permits by Rule and Standard Permits, Section 101.201 concerns Emissions limitation applies at what time. Further, can be incorporated into a Flexible Event Reporting and Recordkeeping Permit without any program there can be existing units on the site Requirements; and Section 101.211 not covered under the Flexible Permit requirement in place that ensures the concerns Scheduled Maintenance, cap that may be modified, and use the SIP permits’ terms and conditions are Startup, Shutdown Reporting and provisions of the Flexible Permit included in the Flexible Permit. EPA Recordkeeping Requirements. These Program for the modification. Without finds that there are not sufficient replicable implementation procedures provisions requiring the holder of a two referenced sections concern for establishing the emission cap and Flexible Permit to maintain emission events that are a subset of the sufficient MRR requirements, EPA recordkeeping sufficient to ensure that universe of air emissions. Emission cannot find that the submitted Program all terms and conditions of existing events are unauthorized emissions by is enforceable, as required by section permits (including representations in nature. See 30 TAC 101.1(28). 110(a)(2)(A) and (C) of the Act. See 74 the applications for such permits) that Malfunction related emissions are those FR 48480, at 48492. are incorporated into the Flexible unauthorized emissions that result from

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a sudden and unavoidable breakdown of serve as a model or comparison for impractical to determine information process or control equipment.5 development of State Minor NSR such as which emission points are EPA agrees that the submitted programs. See 71 FR 48695, at 48700 covered, and which modifications of Program’s rules contemplate that (August 21, 2006). EPA regulations existing non-covered emission points additional recordkeeping requirements require that it review a Minor NSR SIP are covered. See section III.D.3 may be required (at the discretion of the revision to determine if a plan includes (response to comment 2) for further director). Yet as EPA noted in the ‘‘legally enforceable procedures’’ that information. Without replicable proposal, the submitted Program is an enable the permitting agency to implementation procedures for intricate program and therefore, for determine whether a minor source will establishing the emission cap and approvability as a Major or Minor NSR cause or contribute to violations of sufficient and MRR requirements, EPA SIP revision, there is a greater need for applicable portions of the control lacks sufficient information to make a detailed MRR requirements to ensure, strategy, 40 CFR 51.160(a)(1), or finding that the submitted Program, as among other things, there are adequate ‘‘interference with a national ambient air a Minor NSR SIP program, will ensure means for ensuring compliance by each quality standard,’’ 40 CFR 51.160(a)(2), protection of the NAAQS, and holder of a Flexible Permit. Without and to prevent the source from doing so, noninterference with the Texas SIP detailed MRR requirements, the 40 CFR 51.160(b). control strategies and RFP. program is unenforceable. The MRR We believe the reporting requirements Further, commenters’ reliance upon requirements are needed additionally to we proposed for the Indian Country the Texas rules for malfunction ensure that the issuance of the Flexible Minor NSR rules will ensure protection emissions and maintenance, startup, Permits does not cause or contribute to of the NAAQS and control strategy. and shutdown emissions is misplaced. a NAAQS violation, violate the Texas Moreover, the standard of review in this Section 101.201 concerns Emissions control strategy, or violate any other instance is not a comparison between Event Reporting and Recordkeeping CAA requirement. See 74 FR 48480, at the MRR provisions in the submitted Requirements; and Section 101.211 48490. The submitted Program lacks Program and any MRR provisions in the concerns Scheduled Maintenance, provisions explicitly addressing the proposed Indian Country Minor NSR Startup, Shutdown Reporting and type of MRR requirements that are rules but a determination whether the Recordkeeping Requirements. These necessary to ensure that all of the submitted Program has sufficient legally two referenced sections concern movement of emissions between the enforceable procedures that enable the emission events that are a subset of the emission points, units, facilities, plants, permitting agency to determine whether universe of air emissions. Emission etc., still meet the cap for the pollutant, a minor source will cause or contribute events are unauthorized emissions by still meet the individual emissions to violations of applicable portions of nature. See 30 TAC 101.1(28). limitations, and still meet any other the control strategy. As stated above, the Malfunction related emissions are those applicable State or Federal requirement. submitted Program lacks provisions unauthorized emissions that result from In addition, there are no limits on the explicitly addressing the type of MRR a sudden and unavoidable breakdown of types of sources that can be included in requirements that are necessary to process or control equipment.6 EPA’s the cap. It is also difficult to quantify ensure that all of the movement of concern with the structure of the emissions from some units, such as emissions between the emission points, Program and its lack of specific MRR tanks, fugitive emissions from leaking units, facilities, plants, etc., still meet requirements is not with how valves, or wastewater emissions points the cap for the pollutant, still meet the malfunction and SSM emissions are that can be included in a Flexible individual emissions limitations, and treated concerning MRR but with the Permit under this Program. The still meet any other applicable State or emissions that are normally emitted and underpinnings of the submitted Program Federal requirement. how one can determine if the emitted are so complex as to necessitate more Comment 5: TIP, BCCA, TAB, and emissions are meeting the Flexible detailed MRR requirements to ensure TxOGA also point out that there is a Permit’s emission limitations. See that the emission cap and/or individual wide array of additional Texas rules section III.A (response to comment 6) emissions limitations in the issued specifying monitoring, recordkeeping, for further information. Flexible Permits are enforceable. and reporting requirements. For As EPA noted in the proposal, the Without the appropriate specialized instance, the Texas Flexible Permit rules submitted Program is an intricate MRR requirements, it is generally also require compliance with section program and therefore, for approvability impractical to determine for instance, 101.201, related to reporting and as a Major or Minor NSR SIP revision, which emission points are covered, recordkeeping of malfunction there is a greater need for detailed MRR which modifications of existing non- emissions, and section 101.211, related requirements whether to ensure, among covered emission points are covered, to reporting of maintenance, startup, other things, that a project triggering the etc. See section III.D.3 (response to and shutdown emissions. Commenters Major NSR SIP requirements is covered comment 2) for further information. claim that there are many detailed under Major NSR or there are adequate Commenter’s comparison of the monitoring, recordkeeping and means for ensuring compliance by each submitted Program to EPA’s proposed reporting requirements that Flexible holder of a Flexible Permit. These are Indian Country Minor NSR rules is Permit holders are subject to and there needed additionally to ensure that the misplaced in the context of this action. are indeed very explicit requirements issuance of the Flexible Permits does As an initial point, we clearly stated in that adequately document the not cause or contribute to a NAAQS the proposed rule that we did not intend operations of sources covered by violation, violate the Texas control for this regulation of national scope to Flexible Permits. strategy, or violate any other CAA Response: EPA disagrees with this 5 See Footnote 1 of the Attachment to the Memo comment. The submitted Program does 6 See Footnote 1 of the Attachment to the Memo entitled ‘‘State Implementation Plans: Policy not have provisions explicitly entitled ‘‘State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, specifying the monitoring requirements Regarding Excess Emissions During Malfunctions, Startup, and Shutdown’’ (September 1999 Policy) Startup, and Shutdown’’ (September 1999 Policy) from Steve Herman and Robert Perciasepe. You can for this Program. from Steve Herman and Robert Perciasepe. You can access this document at: http://epa.gov/ttn/oarpg/ Without the appropriate specialized access this document at: http://epa.gov/ttn/oarpg/ t5/memoranda/exemmpol092099.pdf. MRR requirements, it is generally t5/memoranda/exemmpol092099.pdf.

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requirement. See 74 FR 48480, at 48490, that absence of certain recordkeeping including air quality impacts, etc. and section III.D.3 (response to and reporting made it difficult to derive Appropriate testing, recordkeeping, comment 4) for further information. information from Flexible Permits. TCC reporting, and monitoring provisions are Comment 6: TAB and TxOGA notes that there is significant difference necessary to establish how compliance comment that the submitted Flexible in the types of sources that apply for a will be determined and be sufficient to Permit rules provide for the Flexible Permit; therefore, it is difficult ensure that the NAAQS and PSD enumeration of special conditions for TCEQ to implement rulemaking for increments are protected. See 74 FR including requirements for monitoring, every type of recordkeeping, monitoring 48480, at 48492. Furthermore, any testing, recordkeeping, and reporting and tracking requirements that may permitting rule will apply to a variety of (MRR). Commenter also asserts that EPA apply. Attempting to incorporate these sources (unless it is a permit adopted does not include any analysis that might variable components into one specifically for a source category and lead one to understand what additional comprehensive rule could severely limit limited to that affected source category). specificity or detail is necessary, or how TCEQ’s ability to implement adequately The submitted Program allows a or why the many detailed requirements these requirements. BCCA comments Flexible Permit holder to selectively in TCEQ’s rules (specifically 30 TAC that the Flexible Permit rules include new facilities and/or new 101.10, 115.116, 117.801 and 111.111) contemplate that additional modifications under the umbrella of a are inadequate. recordkeeping requirements many be Flexible Permit. Without the Response: EPA disagrees with this tailored to the type of source covered by appropriate specialized MRR comment that the Agency has not a Flexible Permit making them as least requirements, it is generally impractical provided a reasonable basis for it as stringent as their Federal to determine information such as which findings. Appropriate MRR provisions counterparts. BCCA highlights a emission points are covered, and which are necessary to establish how comparison to the proposed Indian modifications of existing non-covered compliance will be determined and be Country Minor NSR rules to make this emission points are covered. See section sufficient to ensure that the NAAQS and point. III.D.3 (response to comment 2) for control strategies are protected. There is further information. Submitted Response: The proper scope of review further discussion in the General 116.711(7) is an illustration of our for this SIP revision submittal does not Preamble about EPA’s interpretation of concerns. It states that initial include a review of the State’s the Act’s requirements for enforceability compliance testing with ongoing and that submitted rules must ‘‘specify individually issued Flexible Permits to compliance by engineering calculations clear, unambiguous, and measurable determine whether there are adequate ‘‘may be required.’’ This means that requirements.’’ See 57 FR at 13567. The recordkeeping and reporting under the Program, compliance testing Program’s rules do not contain specific requirements in each permit. These may, or may not, be required and enumerated requirements for MRR. It is Flexible Permits never should have been provides no guidance for when not legally sufficient even if the State is issued since the submitted Program is monitoring will be required. See section issuing individual Flexible Permits with not part of the Texas NSR SIP. EPA’s III.A (response to comment 6) for further special conditions requiring MRR. In review is instead focused on the information. order for the Program to be approvable structure of the submitted Program, The submitted Flexible Permit as a SIP revision, the Program itself ensuring that it includes legally Program does not compare favorably must contain specific objective, sufficient recordkeeping and reporting with the MRR requirements that are replicable MRR requirements that requirements. This is necessary to proposed in the proposed Indian ensure compliance with all terms and ensure that not only does the submitted Country Minor NSR rules. The proposed conditions of each Flexible Permit Program not interfere with NAAQS Indian Country Minor NSR Rules would issued by the TCEQ. There are no attainment, the Texas SIP control require the permit to include monitoring provisions providing clear criteria for strategies, and RFP, but the proposed sufficient to assure compliance with any determining what type of MRR revision is enforceable pursuant to control technology requirements requirements are needed. The Program section 110(a))(2)(A)–(C) of the Act. The contained in the permit. Monitoring is too complex to leave the choice of September 23, 1987, Memorandum from approaches may include continuous MRR requirements up to the individual J. Craig Potter, Assistant Administrator emission monitoring systems, predictive issuance of a Flexible Permit, and up to for Air and Radiation, and Thomas L. emission monitoring systems, the discretion of the Executive Director Adams Jr., Assistant Administrator for continuous parameter monitoring of the TCEQ. EPA finds such director Enforcement and Compliance systems, periodic manual logging of discretion provisions are not acceptable Monitoring, entitled ‘‘Review of State monitor readings, equipment for inclusion in SIPs, unless each Implementation Plans and Revisions for inspections, mass balances, periodic director decision is required under the Enforceability and Legal Sufficiency’’ performance tests, and/or emission plan to be submitted to EPA for provides EPA’s guidance for factors, as appropriate for the minor approval as a single-source SIP revision. interpreting this provision in the Act. source. None of these monitoring This Program does not contain specific, See also the General Preamble at page approaches is addressed in the objective, and replicable criteria for 13566. Submitted rules that are clear as submitted Program. The proposed determining whether the Executive to who must comply, and explicit in Indian County Minor NSR Rules also Director’s choice of MRR requirements their applicability to regulated sources would require the permit to include will be effective in terms of are appropriate means for achieving the recordkeeping sufficient to assure enforceability, compliance assurance, statutory enforcement requirement. compliance with enforceable emission and ambient impacts. See 74 FR 48480, Specific, objective, and replicable limitations in the permit and require at 48490, and section III.A (response to criteria are to be set forth for retention of the records for five years comment 6) for further information. determining whether this new type of from the date of the record. The Comment 7: TAB and TxOGA NSR permit will be truly equivalent to submitted Program lacks this specificity comment that EPA does not provide any the other minor NSR SIP permits in for the recordkeeping requirements. The example of a permit or permits the terms of being consistent with the levels proposed Indian County Minor NSR review of which led to that conclusion specified in the control strategies, Rules also would require annual

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monitoring reports showing whether the TCEQ inspection. See submitted 30 TAC therefore, for approvability as a NSR SIP permittee has complied with the permit 116.715(c)(6). These requirements are revision, there is a greater need for emission limitations and prompt reports clearly insufficient to demonstrate detailed MRR requirements whether to of deviations from permit requirements, compliance with emission caps ensure that a project triggering the Major including those attributable to upset applicable to dozens of dissimilar NSR SIP requirements is covered under conditions, probable cause of such emission units. For a program as Major NSR or to ensure that there are deviations, and any corrective or complex as the Texas Program, stringent adequate means for ensuring preventative measures taken. See 71 FR monitoring must not be left up to the compliance of each affected entity 48695, at 48715–48716 and 48738 discretion of the Executive Director. under both Major and Minor NSR. See (August 21, 2006). Thus even assuming Instead, stringent monitoring and section III.D.3 (response to comment 2) such a comparison represented the reporting requirements must be required for further information. proper scope of review, the MRR by regulation for all units covered under Finally, the commenter stated that provisions of the submitted Program do a Flexible Permit. Because the Texas because the Texas Flexible Permit not compare favorably to those in the Flexible Permit is more complex than Program is more complex than either proposed Indian Country Minor NSR either the PAL or the Green Groups the Federal PAL SIP rule or the Federal Program. The MRR provisions of the proposal, it should include monitoring Green Groups proposal, it should Texas Flexible Permit Program do not at least as stringent as required by those include monitoring at least as stringent contain this level of MRR or otherwise rules. as required by those rules. EPA is not sufficient MRR provisions given the Response: EPA generally agrees with requiring that the Program include the features of the Program. these comments. The submitted specific MRR as required or proposed Comment 8: The Clinic comments Program does not meet the requirements for another program. As stated above, to that there are no provisions for ensuring of section 110(a)(2)(A)–(C) of the Act, be approvable as a SIP revision, the that emission reductions are real, which require that SIP revision Program must contain specific, permanent, and enforceable. submittals be enforceable.7 There are no replicable MRR requirements that Response: Specific, objective, and specific up-front methodologies in the ensure compliance with all terms and replicable criteria are required to be set submitted Program to be able to conditions of each Flexible Permit forth for determining whether this new determine compliance. There are no issued by the TCEQ. See section III.C.6 type of NSR permit program will be sufficient MRR provisions in the (response to comment 2) for additional truly equivalent to the other Minor NSR submitted Program. Accordingly, the information. SIP permit programs in terms of being Program lacks requirements necessary Comment 10: The Clinic comments consistent with the levels specified in for enforcement and assurance of that the Program does not assure that the control strategies, including air compliance. There are no specific up- permit terms of pre-existing NSR quality impacts, etc. Appropriate MRR front methodologies in the Program to permits remain as part of the Flexible provisions are necessary to establish be able to determine compliance. It fails Permit and therefore enforceable. The how compliance will be determined and to meet the enforceability requirements Clinic provided information on a be sufficient to ensure that the NAAQS as a program or for an affected source, refinery that had a PSD permit and and Texas control strategies are and it cannot assure compliance with subsequently received a Flexible Permit protected. Without replicable the Program or by the holder of a from TCEQ. The PSD permit included procedures for establishing the Flexible Permit. See 74 FR 48480, at emission limits for two fluid catalytic emissions caps, the lack of 48490, section III.A (response to cracking units (FCCUs). When the enforceability, the director discretion comment 6) for further information. Flexible Permit was issued, these regarding whether or not to require MRR Instead, MRR requirements emission limits in the PSD permit were and the lack of sufficient MRR appropriate for such a complex Program not included as separate from the limits requirements, EPA cannot be assured must be required by regulation for all in the Flexible Permit; instead, the that the submitted Program does indeed units covered under a Flexible Permit. Flexible Permit included the FCCUs produce permanent emission Whether or not to require MRR among the units subject to the emission reductions. See section III.A (response requirements in a Flexible Permit caps. When the refinery subsequently to comment 6) for further information. should not be left to director discretion. reported emission events, it reported Comment 9: The Clinic comments This complex and intricate Program, for only the Flexible Permit and its that the Flexible Permit rules fail to enforceability purposes, requires associated caps as the applicable limits, assure that permits include enforceable sufficient MRR requirements for each rather than the limits from the pre- limits, as required by the Clean Air Act. Flexible Permit. In the proposal, we existing Major NSR SIP permits. There is no required monitoring or Response: The submitted Program stated that we are concerned with the reporting to assure compliance with the lacks adequate program requirements adequacy of the MRR requirements in terms and conditions. Likewise, the for whether or not the terms and the submitted Program.8 This submitted Flexible Permit rules fail to require conditions of pre-existing Major and Program is an intricate program and adequate monitoring and reporting for Minor SIP permits are incorporated into those emission limits and requirements a Flexible Permit or they remain outside 7 Section 116.711(2) of the submitted Program that are included in the Flexible Permit. provides that emissions will be measured ‘‘as the coverage of the Flexible Permit. The rules require measurement of determined by the executive director.’’ This broad While the comments on implementation emissions ‘‘as determined by the discretion lacks accountability, replicability and of the submitted Program as related to executive director.’’ See submitted 30 fails to provide for a full evaluation of the a particular source are not relevant to enforceability of permits issued under the Program. TAC 116.711(2). They also require that 8 EPA’s letter of March 12, 2008, on pages 12 to this action, they do highlight EPA’s unspecified ‘‘information and data 13 of the Enclosure provides some examples of, and concerns about why the submitted sufficient to demonstrate continuous concepts on how to establish replicable Program is not approvable. The compliance with the emission caps and recordkeeping, reporting, tracking, and monitoring submitted Flexible Permit Program also requirements up-front in a NSR program without individual emission limitations requiring every director discretion decision to be lacks sufficient recordkeeping contained in the flexible permit’’ be kept adopted and submitted to EPA for approval as a provisions to ensure that all terms and at the plant site and made available for source-specific SIP revision. conditions of pre-existing Major and

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Minor NSR SIP permits (including protected. See 74 FR 40480, at 40493, methodology for establishing the representations in the applications for section III.D.3 (responses to comment 1, emissions caps, the lack of such permits) that are incorporated into 2, 4, 5, 7, and 10, above), and section enforceability, the director discretion the Flexible Permit continue to be met. III.A (response to comment 6) for further concerning whether or not to require These underlying Major and Minor NSR information. MRR conditions in a Flexible Permit, SIP permits remain legally enforceable and the lack of sufficient MRR but the lack of specificity in the 4. Revocation of Major NSR Permits requirements in the submitted Program, submitted Program impacts practical Under a Minor NSR Program EPA lacks sufficient information to enforceability. See 74 FR 48493, and Comment: The Clinic comments that make a finding that the submitted section III.A (response to comment 6) Flexible Permits are used to eliminate or Program, as a Minor NSR SIP program, and section III.D.3 (response to amend existing Nonattainment NSR and will ensure protection of the NAAQS, comment 11, below) for further PSD permit terms without following SIP and noninterference with the Texas SIP information. required procedures for permit control strategies and RFP. See 74 FR Comment 11: A member of the Sierra amendments. 48480, at 48490–48492, and section Club cites to references from the Response: We are disapproving the III.A (response to comment 6) for further proposal that relate to the lack of submitted Program because it is information. appropriate MRR requirements in the ambiguous and could be interpreted to E. Definition of Account Program. An individual commenter allow holders of a Flexible Permit to states that as an air quality investigator make de facto amendments of existing Comment 1: TCEQ does not agree for the City of Houston Bureau of Air SIP permits, including changes in the with EPA’s understanding of the term Quality Control, investigating terms and conditions (such as ‘‘account’’ as applied by TCEQ. TCEQ documentation of compliance for a throughput, fuel type, hours of maintains that it has included in each Flexible Permit was presented an entire operation) of minor and major NSR of its permitting rules appropriate roomful of binders, containing permits, without a preconstruction definitions to meet State and Federal emissions information for different review by Texas. While we have requirements. TCEQ interprets an sources under one cap. The company recognized that under certain ‘‘account’’ to include multiple ‘‘sources.’’ representative said that this was the circumstances changes to PSD permits Within this rule, it interprets ‘‘sources’’ documentation of the company’s may be appropriate, such changes are as being equivalent to multiple compliance with the Flexible Permit. generally not allowed without a review ‘‘facilities’’ (a facility is a discrete piece Confronted with these practical of the new circumstances by the of equipment or source of air difficulties, the commenter was unable permitting authority. As EPA has contaminants) under Texas Minor to determine the company’s compliance explained, any time a change to a permit Source definitions. A Flexible Permit with its Flexible Permit Cap. limit founded in BACT is being cannot cover more than one major Response: The EPA agrees with these considered, a corresponding stationary source, as the term is used by comments. While the comments on reevaluation (or reopening) of the EPA and TCEQ for Federal NSR implementation of the submitted original BACT determination may be purposes. Program are not relevant to this action, necessary. See, ‘‘Request for Response: We appreciate TCEQ’s ‘‘ ’’ they do highlight EPA’s concerns about Determination on Best Available Control explanation of the terms account, ‘‘ ’’ ‘‘ ’’ why the submitted Program is not Technology (BACT) Issues—Ogden facility and source as it intends them approvable. The submitted Program Martin Tulsa Municipal Waste to apply in the submitted Program. We are pleased to learn that the State does lacks provisions explicitly addressing Incinerator Facility,’’ from Gary not intend to allow a Flexible Permit to the type of monitoring requirements that McCutchen, Chief of OAQPS NSR cover multiple major stationary sources are necessary to ensure that all of the Section (Nov. 19, 1987). See 74 FR and that companies complying with a movement of emissions between the 40480, at 48493 and a copy of the Flexible Permit understand the emission points, units, facilities, plants, document is in the docket at document continued obligation to comply with the etc., still meet the cap for the pollutant, ID EPA–R06–OAR–2005–TX–0032– SIP-approved Major NSR program at all still meet the individual emissions 0025.9 limitations, and still meet any other major stationary sources and major applicable State or Federal requirement. 5. Protection of the NAAQS Under a modifications. Nonetheless, we believe In addition, there are no limits on the Minor NSR Program that the definitions are not sufficiently types of sources that can be included in Comment: The Clinic comments that limiting to preclude issuance of a the cap. It is also difficult to quantify the submitted Flexible Permits Program Flexible Permit to multiple major emissions from some units, such as is inadequate to assure protection of the stationary sources. This is because the terms ‘‘source’’ and ‘‘account’’ rely on the tanks, fugitive emissions from leaking NAAQS, increments, and control term ‘‘site’’ which does not contain the valves, or wastewater emissions points strategy. that can be included in a Flexible Response: Approval of the submitted SIC code limitation contained in the Federal definitions. Without this Permit under this Program. This Program as a Minor NSR SIP revision limitation, the broad terms can comment also highlights the lack of requires that it include legally encompass more than one major adequate program requirements for the enforceable procedures that enable the stationary source. For example, a tracking of existing SIP permits’ major State to determine whether construction petroleum refiner (SIC code 2911) may and minor NSR terms, limits and or modification by a holder of a Flexible be collocated with a Plastic Materials conditions, and whether such Permit would violate a control strategy and Resins manufacturer (SIC code requirements are incorporated into a or interfere with attainment or 2821) and be under common control Flexible Permit or they remain outside maintenance of the NAAQS. See 40 CFR and ownership, and neither source is a the coverage of the Flexible Permit. This 51.160(a)–(b). Without a replicable further highlights the lack of MRR support facility to the other. But, under sufficient to establish how compliance 9 You can access this document directly at: the Major NSR program, these two will be determined and to ensure that http://www.regulations.gov/search/Regs/ facilities would be considered separate NAAQS and Texas control strategies are home.html#documentDetail?R=0900006480a2bd1d. major stationary sources by virtue of a

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difference in each facility’s SIC program that supports the commenter’s requirements as provided under 40 CFR irrespective of the fact that they are position. 51.166(q). Texas public participation located at the same ‘‘site.’’ Notably this Furthermore, the reliance on the Title rules for Flexible Permits in 30 TAC is not the case for the Title V and V program as providing additional Chapter 39 require 30-days public Section 112 programs. A single Title V limitation for limiting an account to a notice and comment on initial issuance permit can be issued to the ‘‘site.’’ TCEQ major stationary source does not address of Flexible Permits and amendments to asserts that an account includes this matter. The Title V program is an a Flexible Permit if the action involves multiple sources and that the term operating permit program that construction of a new facility or meets ‘‘source’’ is limited to a discrete piece of incorporates the applicable certain criteria, including modifications equipment or source of air requirements of the CAA (including the resulting in allowable emissions contaminants. There is nothing in the requirements of the approved SIP) into increases of 250 tons per year of carbon submitted Program’s rules and the operating permit. See 40 CFR 70.2— monoxide and nitrogen oxides or 25 definitions that limit the term ‘‘account’’ definition of ‘‘applicable requirement’’ tons per year of other pollutants. See 30 to one ‘‘major stationary source’’ much and 70.6(a)(1). The Title V Program TAC 39.403(b). This restriction is less to a discrete piece of equipment. generally does not create applicable inconsistent with Federal requirements This submitted Program establishes an requirements independently of the for both Major and Minor NSR. The emissions cap over a group of one or applicable requirements in the approved commenters further object to the use of more emissions points located at an SIP and other requirements of the CAA. alterations and permits by rule to ‘‘account’’ site. 30 TAC 101.1(1). The Public Citizen v. EPA, 343 F.3d 449, 453 change Flexible Permit terms and Texas SIP defines an ‘‘account’’ to (5th Cir. 2003) (‘‘Title V permits do not conditions; such changes should be include an entire company site, which impose additional requirements on made through permit amendment with could include more than one plant and sources but, to facilitate compliance, at least 30-days public notice and certainly more than one major stationary consolidate all applicable requirements comment. source. See the approved SIP rule 30 in a single document. See 42 U.S.C. Response: In the proposal, EPA TAC 101.1(1), second sentence. On its 7661a(a); see also Virginia v. Browner, proposed to disapprove 30 TAC 116.740 plain face, the term ‘‘account’’ cannot be 80 F.3d 869, 873 (4th Cir.1996) (Title V because this submitted rule relates to interpreted to be limited to a single permit ‘‘is a source-specific bible for the public participation requirements of major stationary source. [CAA] compliance’’), cert. denied, 519 the submitted Flexible Permit Program, Comment 2: BCCA, TCC, TIP and U.S. 1090, 117 S.Ct. 764, 136 L.Ed.2d and is not severable from the Program. TAB, and TxOGA comment that the 711 (1997).’’); Sierra Club v. Georgia Because we are disapproving the definition of ‘‘account’’ is tied to the Power Co., 443 F.3d 1346, 1348 (11th Flexible Permit Program, we are definition of ‘‘site’’ at 30 TAC 101.1(1) Cir. 2006) (Title V ‘‘generally does not likewise disapproving the inseverable and (87). These commenters view this as impose new substantive air quality provisions in 30 TAC 116.740, Public limiting an account to a specific plant control requirements.’’) Notice, for the Program. See 74 FR site. Commenters also point to the Title In summary, for the reasons stated 40480, at 48491 and 48493. V rules as providing additional above, the definition of ‘‘account’’ is not The comments relating to the limitation. Citing 30 TAC 116.710(a)(1) limited to a single major stationary provisions in 30 TAC Chapter 39, the and (4), the commenters point out that source and may include multiple major use of permit alterations and Permits by only one Flexible Permit may be issued stationary sources, or in other Rule in lieu of permit amendment with at an account site and a Flexible Permit circumstances, may include a subset of at least 30-days public notice and may not cover sources at more than one a major stationary source. comment are outside the scope of this account site. In summary, commenters action. F. Public Participation conclude that if these rules are read Comment 3: GCLC provided together they provide sufficient Comment 1: TCC comments that any comments on Texas’s submitted public safeguards against a major stationary future changes in the public participation program that it is robust source netting a significant emissions participation aspects of the Flexible and fully compliant with Federal increase against a decrease occurring Permit program should apply requirements and in fact exceeds outside a site using a Flexible Permit. prospectively and have no effect on the Federal requirements. GCLC comments TAB comments if a Flexible Permit existing permits. that even parties not residing in the could be obtained for more than one Response: EPA cannot comment on State may comment on an air permit site, the only reasonable construction of what actions it will take regarding any application and TCEQ is obligated to the rule would be ‘‘* * * a facility, future changes in the public respond whereas under Federal group of facilities, account or accounts participation aspects of the Flexible requirements only affected persons are ***’’ but the rule is not so constructed Permit Program and therefore defers allowed to comment and trigger a because it does not extend a Flexible responding because those changes are response obligation. GCLC asserts that Permit to more than one site. outside the scope of the present the ‘‘public meeting’’ component of the Response: EPA disagrees with the rulemaking. We wish to note, however, State program is equivalent to the comment. Concerning the comment that existing Flexible Permits were not ‘‘public hearing’’ component of the an account is limited to a site and that issued under the Texas NSR SIP, and Federal program. GCLC comments that the submitted Flexible Permit Program any future Flexible Permits also will not the trial-type contested hearing process limits only one Flexible Permit at an be issued under the Texas NSR SIP. in the Texas program goes well beyond account does not address our concern Comment 2: The Clinic comments the Federal requirements which permit that an account may include more than that the CAA and its implementing only interested parties to participate one major stationary source. See the regulations include minimal during the notice and comment period. section III.D.1 (response to comment 1) requirements for public participation in Response: We recognize that our and 74 FR 48480, at 48489 for further permitting. This includes, for Major and proposal included a brief discussion of information. The commenter’s reliance Minor NSR permits and modifications, how the submitted Flexible Permit on the Title V rules does not identify a the requirements under 40 CFR 51.161 Program requires compliance with specific provision in the Texas Title V and for PSD permits, additional provisions in Chapter 39 of the Texas

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Administrative Code. On November 26, A. The Texas Flexible Permits Program commenters opposing our proposed 2008, EPA proposed limited approval/ is Unclear Whether It is for a Major or action fail to provide an explanation of limited disapproval of the Texas Minor NSR SIP Revision why the TCEQ did not write the submittals relating to public Several commenters claim that the submitted Flexible Permit rules with the participation for air permits of new and submitted Program is clear that every same provisions as the Texas Minor modified facilities (73 FR 72001). In our project for which a Flexible Permit is NSR Permits by Rule and Standard November 26, 2008, proposal of the issued must also comply with Major Permit SIP rules. A clear intention to Texas Public Participation rules, we NSR requirements, and therefore was limit the submitted Program to minor proposed no action on 30 TAC 116.740 not intended to be a Major NSR SIP sources and minor modifications would and stated that we would address that revision. Other commenters disagree have resulted in a similar structure to the Texas Minor NSR Permits by Rule section in a separate action. See 73 FR and say the rules are not clear on their face that the Program requires and Standard Permit SIP rules. The 72001, at 72015. In our proposal of the State, however, did not include such Texas Flexible Permits Program, we compliance with the Major NSR requirements. The latter commenters provision in the submitted Flexible proposed to disapprove 30 TAC 116.740 Permits Program. See 74 FR 48480, at because this submitted rule relates to agree with EPA’s analysis of the submitted Program in the proposal and 48487, and section III.B (response to the public participation requirements of comment 1) for further information. the submitted Flexible Permit Program, comment that we correctly stated that and is not severable from the Program. we were required to review the B. The Texas Flexible Permits Program Because we are disapproving the submittal as a substitute for a Major is Not Approvable as a Substitute Major NSR program because the submittal is NSR SIP Revision Flexible Permit Program, we are not clearly limited to minor sources and likewise disapproving the inseverable Because of the State’s disavowal of minor modifications. TCEQ states that provisions in 30 TAC 116.740, Public any intent to have this SIP revision the Flexible Permit Program was not submittal treated as a substitute for a Notice, for the Program. See 74 FR intended to be a substitute for the Major 40480, at 48491 and 48493. Major NSR SIP program, it did not NSR permitting requirements but that it submit a demonstration as required by IV. What are the Grounds for This understands EPA’s concerns with 40 CFR 51.165(a)(2)(ii) and Disapproval Action of the Texas ambiguity regarding the applicability of 51.166(a)(7)(iv) to show that its Program Flexible Permits State Program? the submitted Program, that this is not was as stringent as the EPA Major NSR specifically stated in the submitted SIP program requirements. It also did EPA is disapproving revisions to the Program’s regulations. Furthermore, the not explain how the submitted Program SIP submitted by the State of Texas that TCEQ commits to revise its rules to is consistent with the Act’s relate to the Flexible Permits State make it clear that the Program is limited requirements for a Major NSR SIP Program, identified in the above Tables to Minor NSR. revision. As discussed at 74 FR 38480, 1 and 2. Sources are reminded that they The submitted Program is analogous at 48487, and in section III.B (response remain subject to the requirements of to two other Minor NSR programs to comments 1 and 2), section III.C.1 the federally approved Texas SIP and (Standard Permits and Permits by Rule) (responses to comments 1 and 2), and may be subject to enforcement actions in Texas’s SIP because they too provide section III.C.3 (responses to comments 1 for violations of the SIP. See EPA’s a different permit option for facilities. In and 2) of this notice, the State did not particular, these programs exempt Revised Guidance on Enforcement structure the submitted Program in a facilities from obtaining a source- during Pending SIP Revisions, (March 1, similar fashion as the Texas Minor specific (i.e., case-by case) permit. 1991). You can access this document at: Standard Permits and Permits by Rule Unlike the submitted Program, however, NSR SIP programs. This lack of a similar http://www.epa.gov/compliance/ the SIP rules for Standard Permits and resources/policies/civil/caa/stationary/ regulatory structure creates the Permits by Rule include an applicability ambiguities whether the submitted enf-siprev-rpt.pdf. However, this final statement and a regulatory provision Program is truly limited to Minor NSR disapproval action does not affect that expressly limits applicability to and whether it prohibits the Federal enforceability of Major and minor sources and minor modifications. circumvention of the Federal Major NSR Minor NSR SIP permits. The Standard Permits rules explicitly SIP requirements. Without the required The provisions affected by this require a Major NSR applicability demonstration and with the ambiguities, disapproval action include regulatory determination at 30 TAC 116.610(b), EPA is disapproving the Program as not provisions at 30 TAC 116.110(a)(3), and prohibit circumvention of Major meeting the Major NSR SIP 116.710, 116.711, 116.714, 116.715, NSR at 30 TAC 116.610(c). Likewise, the requirements that require the Major NSR 116.716, 116.717, 116.718, 116.720, Permits by Rule provisions explicitly applicability requirements be met and 116.721, 116.722, 116.730, 116.740, require a Major NSR applicability that prevent circumvention of Major 116.750, and 116.760; and definitions at determination at 30 TAC 106.4(a)(3), NSR. See 74 FR 48480, at 48488, section 30 TAC 116.10(11)(F), and 30 TAC and prohibit circumvention of Major III.B (response to comment 1) and 116.13 under 30 TAC Chapter 116, NSR at 30 TAC 106.4(b). In each, the section III.C.1 of this notice for further State specifically expressed its intention Control of Air Pollution by Permits for information. to require a Major NSR applicability Some commenters assert that the New Construction or Modification. EPA determination and prohibit submitted Program meets the netting finds that these submitted provisions circumvention of Major NSR. The criteria for a Major NSR SIP revision. and definitions in the submittals absence of a similar Major NSR Others argue differently. Under the affecting the Texas Flexible Permits applicability determination requirement submitted Program, not all emission State Program are not severable from and a similar regulatory prohibition for points, units, facilities, major stationary each other. Specifically, EPA is making circumvention of the Major NSR SIP sources, minor modifications to an the following findings and taking the permitting requirements in the existing major stationary source, and so following actions as described below: submitted Flexible Permits Program forth, at a site are required to be creates unacceptable ambiguity. The included in the site’s Flexible Permit.

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The submitted Program allows an program requirements for the tracking of not meeting the Major NSR SIP emission cap to be established under a existing SIP permits’ Major NSR terms, requirements. Flexible Permit account to include limits and conditions, and whether such C. The Texas Flexible Permits Program multiple major stationary sources and requirements are incorporated into a Is Not Approvable as a Minor NSR SIP allow a major stationary source to net a Flexible Permit or they remain outside Revision significant emissions increase against a the coverage of the Flexible Permit. The decrease occurring outside the major submitted Program is ambiguous and Several commenters claim the Texas stationary source, from facilities on the can be interpreted to allow holders of a Flexible Permit Program explicitly account’s site, and, in other Flexible Permit to make de facto requires permit holders to comply with circumstances, allowing an evaluation amendments of existing SIP permits, the Federal Major NSR rules. In of emissions of a subset of units at a including changes in the terms and contrast, another commenter says that major stationary source. As a result, the conditions (such as throughput, fuel the submitted Program does not include regulated community may apply these type, hours of operation) of Major NSR adequate provisions for ensuring that regulations inconsistently and in a way permits, without a preconstruction changes that should trigger Major NSR that fails to evaluate emissions changes review by Texas. See section III.C.5 for are subject to technology and air quality at the entire major stationary source further information. analysis requirements. Commenters correctly as required by the Major NSR Therefore, the submitted Program assert that the submitted Program SIP regulations. See section III.E does not require the retention of the prohibits circumvention of Major NSR. (responses to comments 1 and 2) for conditions of Major NSR SIP permits Another commenter notes to the further information. upon the issuance of a Flexible Permit, contrary. We evaluated the submitted Therefore, the submitted Program as is required for a Major NSR SIP Program under CAA section does not meet the CAA’s definition of revision. 110(a)(2)(C), which requires each State to include a Minor NSR program in its ‘‘modification’’ and the Major NSR SIP Pursuant to 40 CFR 51.165(a)(2)(ii) SIP. EPA regulations implementing the requirements and is inconsistent with and 51.166(a)(7)(iv), where a State Act require that a plan include ‘‘legally Alabama Power v. Costle, 636 F.2d 323, submits a revision to its Major NSR SIP enforceable procedures that enable’’ the 401–403 (D.C. Cir. 1980) and Asarco v. that differs from the Federal Major NSR permitting agency to determine whether EPA, 578 F.2d 320 (D.C. Cir.1978). The base program SIP requirements, the a minor source will cause or contribute submitted Program does not meet the State has an affirmative obligation to to violations of applicable portions of Major NSR SIP requirements for netting. explain how the submitted program Second, the Program authorizes existing the control strategy (see 40 CFR satisfies the CAA and to demonstrate 51.160(a)(1)), or ‘‘interference with a allowable emissions, rather than actual why the submitted program is in fact at emissions, to be used as a baseline to national ambient air quality standard,’’ least as stringent as the Major NSR SIP determine applicability. Therefore, this (see 40 CFR 51.160(a)(2)), and to prevent requirements of the Federal base use of allowables is inconsistent with the source from doing so (see 40 CFR program. It is not EPA’s obligation to the requirements of the Act for Major 51.160(b)). There is, however, no surmise how the submitted program NSR and is contrary to New York v. express provision in the submitted might work and if it may under certain EPA, 413 F.3d 3, 38–40 (D.C. Cir. 2005) Flexible Permit Program rules that circumstances be more or less stringent (‘‘New York I’’). See 74 FR 48480, at prohibits its use for Major NSR. There than the Federal Major NSR SIP base 48489–48490, and section III.C.2 is no express regulatory provision in the program. The State did not submit such (response to comment 2) for further submitted Program requiring that it a demonstration because it did not view information. cannot be used to circumvent the Several commenters claim that the the submitted Program as a substitute requirements of Major NSR. There are submitted Program requires the for a Major NSR SIP revision. no regulatory provisions clearly retention of the conditions of an existing Without the required customized prohibiting circumvention of Major PSD or Nonattainment NSR permit and Major NSR demonstration, the lack of a NSR. See 74 FR 48480, at 48486, and that the TCEQ is required under the replicable methodology for the section III.D.1 for further information. submitted Program to carry forward establishment of the emissions cap, the Therefore, EPA is disapproving the such terms and conditions in a Flexible provision allowing director discretion in submitted Program as a Minor NSR SIP Permit. On the other hand, there was a deciding whether or not to include a revision because it is not clearly limited comment that the submitted Program MRR condition in a Flexible Permit, the to Minor NSR and it does not prevent contains no such requirement and that lack of sufficient MRR requirements, circumvention of the Major NSR SIP TCEQ regularly voids existing and the lack of enforceability, EPA lacks requirements. Nonattainment and PSD NSR permits sufficient information to make a finding Several commenters state that the when it issues a Flexible Permit. The that the submitted Flexible Permits submitted Program does contain submitted Flexible Permit Program is Program will prevent interference with comprehensive and stringent provisions not clear and explicit that Flexible NAAQS attainment and RFP or for MRR or assert that there is a wide Permits cannot be used to eliminate or violations of any State control strategy array of additional Texas rules amend existing Nonattainment and PSD that is required by the Texas NSR SIP, specifying MRR requirements. A NSR SIP permit terms and conditions. or any other applicable CAA commenter notes that there is There are not sufficient provisions in requirement. See 74 FR 48480, at 48492, significant difference in the types of the submitted Program requiring the section III.D.3, and section III.A sources that apply for a Flexible Permit; holder of a Flexible Permit to maintain (response to comment 6) for further therefore, requiring one comprehensive recordkeeping sufficient to ensure that information. rule could severely limit TCEQ’s ability all terms and conditions of pre-existing Therefore, the Program does not meet to implement adequately these permits (including representations in the requirements of the Act and EPA requirements. In contrast, another the applications for such permits) that regulations for a substitute Major NSR commenter notes that the submitted are incorporated into the Flexible SIP. Program does not contain adequate MRR Permit continue to be met. The In summary, EPA is disapproving the requirements to assure compliance with submitted Program lacks adequate submitted Flexible Permits Program as the emission limits in Flexible Permits.

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On the other hand, TCEQ admits the Without specialized MRR Minor NSR. See 74 FR 48480, at 48490, submitted Program does not specify requirements in the submitted Program, section III.A (response to comment 6), special conditions that ensure it is difficult for EPA or the public to and section III.D.3 (response to recordkeeping, reporting, testing, and determine which units are covered by a comment 2) for further information. reporting to assure compliance with the Flexible Permit, which modifications to Moreover without specialized MRR Flexible Permit. non-covered units are covered by a requirements in the submitted Program, The submitted Program is an intricate Flexible Permit, whether a covered unit it is difficult for EPA or the public to and complex program and therefore, for is subject to the emission cap or an determine which units are covered by a approvability as a Major NSR SIP individual emission limitation, whether Flexible Permit, which modifications to revision, there is a greater need for a unit is subject to both the cap and a non-covered units are covered by a detailed MRR requirements whether to limitation, or whether a cap or a Flexible Permit, whether a covered unit ensure that a project triggering the Major limitation applies and at what time. See is subject to the emission cap or an NSR SIP requirements is covered under 74 FR 48480, at 48492, and section individual emission limitation, whether Major NSR or to ensure that there are III.D.3 for further information. a unit is subject to both the cap and a adequate means for ensuring Accordingly, the submitted Program limitation, or whether a cap or a compliance of each affected source lacks requirements necessary for limitation applies and when it applies. under both Major and Minor NSR. enforcement and assurance of See 74 FR 48480, at 48492, and section These are needed to make the submitted compliance. There are no specific up- III.D.3 of this notice for further Program enforceable and to ensure that front methodologies in the Program to information. Accordingly, the Program the issuance of the Flexible Permits be able to determine compliance. It fails lacks requirements necessary for does not cause or contribute to a to meet the enforceability requirements enforcement and assurance of NAAQS violation, the Texas control as a program or by a holder of a Flexible compliance. There are no specific up- strategy, or violate any other CAA Permit, and it cannot assure compliance front methodologies in the Program to requirement. The submitted Flexible with the Program or of the affected be able to determine compliance. It fails Permit Program is generic concerning source. to meet the enforceability requirements the types of monitoring that is required Several commenters state that the as a program or for a holder of a Flexible rather than identifying the employment submitted Program does contain Permit, and it cannot assure compliance of specific monitoring approaches, comprehensive and stringent provisions with the Program or by the holder of a providing the technical specifications for MRR or assert that there is a wide Flexible Permit. for each of the specific allowable array of additional Texas rules Therefore, the submitted Program is monitoring systems, and requiring specifying MRR requirements. A not enforceable, as required by section replicable procedures for the approval commenter notes that there is 110(a)(2)(A)–(C) of the Act for a Minor of any alternative monitoring system. It significant difference in the types of NSR SIP revision, and it fails to prohibit also lacks the replicable procedures that sources that apply for a Flexible Permit; the issuance of a Flexible Permit that are necessary to ensure that (1) adequate therefore, requiring one comprehensive could interfere with attainment of a monitoring is required that would rule could severely limit TCEQ’s ability NAAQS or violate a control strategy. accurately determine emissions under to implement adequately these Because of its lack of enforceability, the Flexible Permit cap, (2) the Program requirements. In contrast, another EPA lacks sufficient information to is based upon sound science and meets commenter notes that the submitted make a finding that the Flexible Permits generally acceptable scientific Program does not contain adequate MRR Program is adequate to ensure that no procedures for data quality and requirements to assure compliance with construction and changes authorized manipulation; and (3) the information the emission limits in Flexible Permits. under the Program will prevent generated by such system meets First, the commenters point to no interference with attainment and minimum legal requirements for other specific SIP rules that apply to maintenance of the NAAQS or admissibility in a judicial proceeding to Flexible Permits and are detailed MRR violations of any State control strategy enforce the Flexible Permit. requirements. Although the submitted that is required by the Texas NSR SIP. The submitted Program therefore Program requires the same MRR See 74 FR 48480, at 48492, and section lacks provisions explicitly addressing requirements at 30 TAC 116.711(2) and III.D.3 for further information. the type of MRR requirements that are 116.715(c)(4)–(6), as do the SIP rules Several commenters claim that the necessary to ensure that all of the codified in Subchapter B of Chapter submitted Program requires the movement of emissions between the 116, the underpinnings of the submitted retention of the conditions of an existing emission points, units, facilities, plants, Program are so complex that even for a PSD or Nonattainment NSR permit and etc., still meet the cap for the pollutant, Minor NSR SIP program, there should that the TCEQ is required under the still meet the individual emissions be more detailed MRR requirements to submitted Program to carry forward limitations, and still meet any other ensure that the emission cap and/or such terms and conditions in a Flexible applicable State or Federal requirement. individual emissions limitations in the Permit. On the other hand, there was a The commenters’ assertion that there are issued Flexible Permits are enforceable. comment that the submitted Program additional MRR SIP requirements See 74 FR 48480, at 48492, and section contains no such requirement and that applicable to the submitted Program is III.D.3 for further information. Secondly, TCEQ regularly voids existing incorrect; there are no such additional the submitted Flexible Permit Program Nonattainment and PSD NSR permits applicable MRR SIP requirements. is complex and intricate and therefore, when it issues a Flexible Permit. The Moreover, the submitted Program leaves for approvability as a NSR SIP revision, submitted Flexible Permit Program is it to the director’s discretion to require there is a greater need for detailed MRR not clear and explicit that Flexible a MRR condition in a Flexible Permit. requirements whether to ensure that a Permits cannot be used to eliminate or See 74 FR 48480, at 48490, and section project triggering the Major NSR SIP amend existing Nonattainment and PSD III.C.5 (response to comment), III.D.3 requirements is covered under Major NSR SIP permit terms and conditions. (response to comments 4, 5, and 9), and NSR or to ensure that there are adequate The regulatory structure of the section III.A (response to comment 6) means for ensuring compliance of each submitted Program does not ensure that for further information. affected entity under both Major and existing Major NSR SIP permits’ terms

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and conditions are retained. It lacks determining an established emissions Based upon the above, overall, the legally enforceable procedures to ensure cap; others claim differently. The submitted Program fails to include that both the permit application and the submitted Program does not describe in sufficient legally enforceable safeguards State’s permitting processes (i.e., the sufficient detail the calculation to ensure that the NAAQS and control State’s review, supporting technical methodologies and underlying technical strategies are protected. Therefore, EPA information, the public notice and analyses used to determine a cap. It is disapproving the Program for not comment process, the record, and most lacks specific, established, replicable meeting the requirements for a Minor importantly the structuring of each procedures in the submitted regulations NSR SIP revision. Flexible Permit) clearly identify each providing available means to determine D. The Texas Flexible Permits Program covered point of emissions; which independently, and for different Does Not Meet the NSR Public existing Minor NSR permits and their scenarios, how the State will calculate Participation Requirements types (e.g., Minor NSR SIP permit, a Flexible Permit’s cap and/or Minor NSR SIP standard permit, Minor individual emissions limitations for a A commenter stated that any future NSR SIP permit by rule); and which of company’s site, plants on the site, major changes in public participation aspects their permitted terms, limits, conditions stationary sources on the site, a facility of the Flexible Permit Program should and representations in the permit within a major stationary source on the apply prospectively and should have no application, are moved into the Flexible site, facilities on the site, a group of effect on existing permits. Another Permit. The regulatory structure of the units on the site, for one pollutant but commenter stated that the submitted submitted Program also is not clear not another, etc. The process also is not Program lacks the minimum public which existing permits and their types clear for how the emission cap is participation in 40 CFR 51.161 for a and terms, limits, conditions and adjusted for the addition of new NSR SIP submittal and for a PSD SIP representations in the permit facilities. See 74 FR 48480, at 48491 and submittal, the public participation application, are not being moved into section III.D.2 for additional requirements in 40 CFR 51.166(q). the Flexible Permit. Finally, there are information. Another commenter asserts that the submitted public participation program not sufficient provisions in the Therefore, the submitted Program is robust and fully compliant with submitted Program requiring the holder lacks replicable procedures for the Federal requirements and in fact of a Flexible Permit to maintain establishment of the emissions cap, as is exceeds Federal requirements because recordkeeping sufficient to ensure that required for a Minor NSR SIP revision. all terms and conditions of existing of its broader scope and trial-type The submitted Program provides an permits (including representations in contested hearings process. alternative permit option but there is the applications for such permits) that The submitted rule is not severable not sufficient information to determine are incorporated into the Flexible from the Program because it relates to whether this alternative is as stringent Permit continue to be met. The the public participation requirements of as the existing Texas Minor NSR SIP. submitted Program lacks adequate the submitted Program. We are Consequently, the submitted Program program requirements for the tracking of disapproving the Texas Flexible Permits could create a risk of interference with existing SIP permits’ Major and Minor State Program, and we are disapproving NSR terms, limits and conditions, and NAAQS attainment, RFP, or any other the submitted 30 TAC 116.740, because whether or not such requirements are requirement of the Act. Additionally, this submitted rule for public incorporated into a Flexible Permit. the legal test for whether an alternative participation is not severable from the Minor and Major NSR permits, as well Minor NSR permit approach can be submitted Program. See 74 FR 48480, at as Minor NSR SIP Permits by Rule and approved is whether it is consistent 48490 and 48493 and section III.F for Standard Permits, can be incorporated with the need for a plan to include further information. legally enforceable procedures to ensure into a Flexible Permit without any E. Definition of ‘‘Account’’ program requirement in place that that the State will not permit a source ensures the SIP permits’ terms and that will violate the control strategy or TCEQ does not agree with EPA’s conditions are included in the Flexible interfere with NAAQS attainment, as understanding of the term ‘‘account’’ as Permit. The submitted Program also required by 40 CFR 51.160(a)–(b). 74 FR applied by TCEQ. It further states that allows holders of a Flexible Permit to 48480, at 48491. Therefore, we are it has integrated and translated the make de facto amendments of existing disapproving the submitted Flexible many Federal definitions of the ‘‘source’’ SIP permits, including changes in the Permits Program as a Minor NSR SIP in an attempt to maintain consistent terms and conditions (such as revision because it does not meet terminology between State and Federal throughput, fuel type, hours of sections 110(a)(2)(C) and 110(1) of the programs. TCEQ comments that its operation) of Minor and Major NSR Act and 40 CFR 51.160. Without a definition of an ‘‘account’’ references the permits, without a preconstruction replicable methodology for establishing term ‘‘source’’ as defined in Texas law. review by Texas. See section III.C.5 and the emission caps, the provision According to TCEQ, within this rule, it section III.D.3 (response to comment 10) allowing director discretion whether or interprets ‘‘sources’’ as being equivalent for further information. not to include a MRR condition in a to multiple ‘‘facilities’’ (a discrete piece Therefore, the submitted Program Flexible Permit, the lack of sufficient of equipment or source of air does not require the retention of the MRR requirements and the lack of contaminants) under Texas Minor conditions of Major NSR SIP permits enforceability of the submitted Program, Source definitions. TCEQ further upon the issuance of a Flexible Permit, EPA lacks sufficient information to commented that a Flexible Permit as is required for a Minor NSR SIP make a finding that the submitted cannot cover more than one major revision and allows for revision of Program, as a Minor NSR SIP program, stationary source, as the term is used by existing permits without adequate will ensure protection of the NAAQS, EPA and TCEQ for Federal NSR public notice and comment as required and noninterference with the Texas SIP purposes. See comment 1 under section by 40 CFR 51.160–161. control strategies and RFP. See 74 FR III.E. To be approvable, a Flexible Several commenters claim that the 48480, at 48492, and section III.A Permit cannot cover more than one submitted Program does contain an (response to comment 6) for further major stationary source, as the term is established and replicable method for information. used by EPA and TCEQ for Federal NSR

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purposes. Other commenters note that other governmental agencies, or a court, Because this final action does not the definition of ‘‘account’’ is tied to the which facilities are included under the impose an information collection definition of ‘‘site’’ at 30 TAC 101.1(1) permit and cap, and which are included burden, the Paperwork Reduction Act and (87). This, in their view limits an under the permit but subject to does not apply. account to a specific plant site. These individual limitations. See 74 FR 48480, commenters also point to the Title V at 48485 and section III.E for further C. Regulatory Flexibility Act rules as providing additional limitation. information. The Regulatory Flexibility Act (RFA) Citing 30 TAC 116.710(a)(1) and (4), V. Final Action generally requires an agency to conduct these commenters point out that only a regulatory flexibility analysis of any EPA is disapproving the Texas one Flexible Permit may be issued at an rule subject to notice and comment Flexible Permits State Program account site and a Flexible Permit may rulemaking requirements unless the submitted in a series of SIP revisions, not cover sources at more than one agency certifies that the rule will not identified in the Tables in section II of account site. In summary, these have a significant economic impact on this preamble. These affected provisions commenters conclude that if these rules a substantial number of small entities. are addressed in Texas’ November 29, are read together they provide sufficient Small entities include small businesses, 1994 SIP revision submittal, as revised safeguards against a major stationary small not-for-profit enterprises, and by severable portions in the March 13, source netting a significant emissions small governmental jurisdictions. For 1996, SIP revision submittal, and increase against a decrease occurring purposes of assessing the impacts of severable portions of the July 22, 1998 outside a site using a Flexible Permit. today’s rule on small entities, small Another commenter comments if a SIP revision submittal that repealed and entity is defined as: (1) A small business Flexible Permit could be obtained for replaced portions of, as well as revised, as defined by the Small Business more than one site, the only reasonable the 1994 submittal and repealed and Administration’s (SBA) regulations at 13 construction of the rule would be replaced all of the 1996 submittal; and CFR 121.201; (2) a small governmental ‘‘* * * a facility, group of facilities, as revised by severable portions in the jurisdiction that is a government of a account or account * * *’’ but the rule October 25, 1999, September 11, 2000, city, county, town, school district or is not so constructed because it does not April 12, 2001, September 4, 2002, special district with a population of less extend a Flexible Permit to more than October 4, 2002, and September 25, than 50,000; and (3) a small one site. After considering these 2003, SIP revision submittals. organization that is any not-for-profit comments EPA observes that that an EPA is disapproving the submitted enterprise which is independently account could include an entire Texas Flexible Permits State Program as company site, which could include a Minor NSR SIP revision because it owned and operated and is not multiple major stationary sources, the does not meet the Act and EPA’s dominant in its field. This rule will not submitted SIP revisions may allow a regulations and is not consistent with have a significant impact on a major stationary source to net a applicable statutory and regulatory substantial number of small entities significant emissions increase against a requirements as interpreted in EPA because SIP approvals and disapprovals decrease occurring outside the guidance and policy. We also are under section 110 and part D of the stationary source from facilities on the disapproving the submitted Texas Clean Air Act do not create any new account site that are covered under a Flexible Permits State Program as a requirements but simply approve or Flexible Permit. An account may also substitute Major NSR SIP revision, disapprove requirements that the States allow an emission increase to be because it does not meet the Act and are already imposing. determined based on an evaluation of a EPA’s regulations and is not consistent Furthermore, as explained in this subset of facilities within a major with applicable statutory and regulatory action, the submissions do not meet the stationary source. See section III.E requirements as interpreted in EPA requirements of the Act and EPA cannot (response to comment 1) above and 74 guidance and policy. approve the submissions. The final FR 48480, at 48489 for further VI. Statutory and Executive Order disapproval will not affect any existing information. The commenter’s reliance Reviews State requirements applicable to small on the Title V rules does not identify a entities in the State of Texas. Federal specific provision in the Texas Title V A. Executive Order 12866, Regulatory disapproval of a State submittal does program that supports the commenter’s Planning and Review not affect its State enforceability. After position. This final action has been determined considering the economic impacts of In summary, for the reasons stated not to be a ‘‘significant regulatory today’s rulemaking on small entities, above, the definition of ‘‘account’’ is not action’’ subject to review by the Office and because the Federal SIP disapproval clearly limited to a single major of Management and Budget under does not create any new requirements or stationary source and may include Executive Order 12866 (58 FR 51735, impact a substantial number of small multiple major stationary sources, or in October 4, 1993). entities, I certify that this action will not other circumstances, may include a have a significant economic impact on subset of a major stationary source. The B. Paperwork Reduction Act a substantial number of small entities. submitted Program is not approvable This action does not impose an Moreover, due to the nature of the because it does not include legally information collection burden under the Federal-State relationship under the enforceable procedures for ensuring that provisions of the Paperwork Reduction Clean Air Act, preparation of flexibility both the permit application and the Act, 44 U.S.C. 3501 et seq., because this analysis would constitute Federal State’s permitting processes (i.e., the SIP disapproval under section 110 and inquiry into the economic State’s review, supporting technical subchapter I, part D of the Clean Air Act reasonableness of State action. The information, the public notice and will not in-and-of itself create any new Clean Air Act forbids EPA to base its comment process, the record, and most information collection burdens but actions concerning SIPs on such importantly the structuring of each simply disapproves certain State grounds. Union Electric Co., v. U.S. Flexible Permit in such a manner as to requirements for inclusion into the SIP. EPA, 427 U.S. 246, 255–66 (1976); 42 be clear) will clearly inform the public, Burden is defined at 5 CFR 1320.3(b). 7410(a)(2).

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D. Unfunded Mandates Reform Act not have tribal implications, as specified 12(d) of NTTAA because application of This action contains no Federal in Executive Order 13175. It will not those requirements would be mandates under the provisions of Title have substantial direct effects on tribal inconsistent with the Clean Air Act. II of the Unfunded Mandates Reform governments, on the relationship Today’s action does not require the Act of 1995 (UMRA), 2 U.S.C. 1531– between the Federal government and public to perform activities conducive Indian tribes, or on the distribution of to the use of VCS. 1538 ‘‘for State, local, or tribal power and responsibilities between the governments or the private sector.’’ EPA J. Executive Order 12898: Federal Federal government and Indian tribes. has determined that the disapproval Actions To Address Environmental This action does not involve or impose action does not include a Federal Justice in Minority Populations and any requirements that affect Indian mandate that may result in estimated Low-Income Populations Tribes. Thus, Executive Order 13175 costs of $100 million or more to either does not apply to this action. Executive Order 12898 (59 FR 7629, State, local, or tribal governments in the (February 16, 1994)) establishes Federal aggregate, or to the private sector. This G. Executive Order 13045, Protection of executive policy on environmental Federal action determines that pre- Children From Environmental Health justice. Its main provision directs existing requirements under State or Risks and Safety Risks Federal agencies, to the greatest extent local law should not be approved as part EPA interprets Executive Order 13045 practicable and permitted by law, to of the Federally approved SIP. It (62 FR 19885, April 23, 1997) as make environmental justice part of their imposes no new requirements. applying only to those regulatory mission by identifying and addressing, Accordingly, no additional costs to actions that concern health or safety as appropriate, disproportionately high State, local, or tribal governments, or to risks, such that the analysis required and adverse human health or the private sector, result from this under section 5–501 of the Executive environmental effects of their programs, action. Order has the potential to influence the policies, and activities on minority E. Executive Order 13132, Federalism regulation. This action is not subject to populations and low-income Executive Order 13045 because it is not populations in the United States. Executive Order 13132, entitled an economically significant regulatory EPA lacks the discretionary authority ‘‘Federalism’’ (64 FR 43255, August 10, action based on health or safety risks to address environmental justice in this 1999), requires EPA to develop an subject to Executive Order 13045 (62 FR action. In reviewing SIP submissions, accountable process to ensure 19885, April 23, 1997). This SIP EPA’s role is to approve or disapprove ‘‘meaningful and timely input by State disapproval under section 110 and State choices, based on the criteria of and local officials in the development of subchapter I, part D of the Clean Air Act the Clean Air Act. Accordingly, this regulatory policies that have Federalism will not in-and-of itself create any new action merely disapproves certain State implications.’’ ‘‘Policies that have regulations but simply disapproves requirements for inclusion into the SIP Federalism implications’’ is defined in certain State requirements for inclusion under section 110 and subchapter I, part the Executive Order to include into the SIP. D of the Clean Air Act and will not in- regulations that have ‘‘substantial direct and-of itself create any new effects on the States, on the relationship H. Executive Order 13211, Actions That requirements. Accordingly, it does not between the national government and Significantly Affect Energy Supply, provide EPA with the discretionary the States, or on the distribution of Distribution, or Use authority to address, as appropriate, power and responsibilities among the This rule is not subject to Executive disproportionate human health or various levels of government.’’ Order 13211 (66 FR 28355, May 22, environmental effects, using practicable This action does not have Federalism 2001) because it is not a significant and legally permissible methods, under implications. It will not have substantial regulatory action under Executive Order Executive Order 12898. direct effects on the States, on the 12866. relationship between the national K. Congressional Review Act government and the States, or on the I. National Technology Transfer and The Congressional Review Act, 5 distribution of power and Advancement Act U.S.C. 801 et seq., as added by the Small responsibilities among the various Section 12(d) of the National Business Regulatory Enforcement levels of government, as specified in Technology Transfer and Advancement Fairness Act of 1996, generally provides Executive Order 13132, because it Act of 1995 (‘‘NTTAA’’), Public Law that before a rule may take effect, the merely disapproves certain State 104–113, section 12(d) (15 U.S.C. 272 agency promulgating the rule must requirements for inclusion into the SIP note) directs EPA to use voluntary submit a rule report, which includes a and does not alter the relationship or consensus standards in its regulatory copy of the rule, to each House of the the distribution of power and activities unless to do so would be Congress and to the Comptroller General responsibilities established in the Clean inconsistent with applicable law or of the United States. EPA will submit a Air Act. Thus, Executive Order 13132 otherwise impractical. Voluntary report containing this rule and other does not apply to this action. consensus standards are technical required information to the U.S. Senate, standards (e.g., materials specifications, F. Executive Order 13175, Coordination the U.S. House of Representatives, and test methods, sampling procedures, and With Indian Tribal Governments the Comptroller General of the United business practices) that are developed or States prior to publication of the rule in This action does not have tribal adopted by voluntary consensus the Federal Register. A major rule implications, as specified in Executive standards bodies. NTTAA directs EPA cannot take effect until 60 days after it Order 13175 (59 FR 22951, November 9, to provide Congress, through the Office is published in the Federal Register. 2000), because the SIP EPA is of Management and Budget, This action is not a ‘‘major rule’’ as disapproving would not apply in Indian explanations when the Agency decides defined by 5 U.S.C. 804(2). country located in the State, and EPA not to use available and applicable notes that it will not impose substantial voluntary consensus standards. L. Petitions for Judicial Review direct costs on tribal governments or The EPA believes that this action is Under section 307(b)(1) of the Clean preempt tribal law. This final rule does not subject to requirements of Section Air Act, petitions for judicial review of

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this action must be filed in the United 1996; repealed and readopted June 17, (v) 30 TAC 116.716—Emission Caps States Court of Appeals for the 1998 and submitted July 22, 1998; and Individual Limitations—adopted appropriate circuit by September 13, adopted August 9, 2000 and submitted November 16, 1994 and submitted 2010. Filing a petition for September 11, 2000; and revised August November 29, 1994; reconsideration by the Administrator of 21, 2002 and submitted September 4, (vi) 30 TAC 116.717—Implementation this final rule does not affect the finality 2002; Schedule for Additional Controls— of this rule for the purposes of judicial (ii) 30 TAC 116.13—Flexible Permit adopted November 16, 1994 and review nor does it extend the time Definitions, adopted November 16, 1994 submitted November 29, 1994; within which a petition for judicial and submitted November 29, 1994; (vii) 30 TAC 116.718—Significant review may be filed, and shall not repealed and readopted June 17, 1998 Emission Increase—adopted November postpone the effectiveness of such rule and submitted July 22, 1998; 16, 1994 and submitted November 29, or action. This action may not be (2) The following provision in 30 TAC 1994; challenged later in proceedings to Chapter 116, Subchapter B—New (viii) 30 TAC 116.720—Limitation on enforce its requirements. (See section Source Review Permits, Division 1— Physical and Operational Changes— 307(b)(2).) Permit Application: 30 TAC adopted November 16, 1994 and 116.110(a)(3)—Applicability, adopted List of Subjects in 40 CFR Part 52 submitted November 29, 1994; November 16, 1994 and submitted (ix) 30 TAC 116.721—Amendments Environmental protection, Air November 29, 1994; repealed and and Alterations—adopted November 16, pollution control, Carbon monoxide, readopted June 17, 1998 and submitted 1994 and submitted November 29, 1994; Intergovernmental relations, Lead, July 22, 1998; revised June 17, 1998 and submitted Nitrogen dioxide, Ozone, Particulate (3) The following sections in 40 TAC July 22, 1998; and revision adopted matter, Reporting and recordkeeping Chapter 116, Subchapter G—Flexible August 9, 2000 and submitted requirements, Sulfur oxides, Volatile Permits: September 11, 2000; organic compounds. (i) 30 TAC 116.710—Applicability— adopted November 16, 1994 and (x) 30 TAC 116.722—Distance Dated: June 30, 2010. submitted November 29, 1994; revised Limitations—adopted November 16, Al Armendariz, June 17, 1998 and submitted July 22, 1994 and submitted November 29, 1994; Regional Administrator, Region 6. 1998; and adopted August 9, 2000 and and revision adopted August 9, 2000 ■ 40 CFR part 52 is amended as follows: September 11, 2000; and submitted September 11, 2000; (ii) 30 TAC 116.711—Flexible Permit (xi) 30 TAC 116.730—Compliance PART 52—[AMENDED] Application—adopted November 16, History—adopted November 16, 1994 1994 and submitted November 29, 1994; and submitted November 29, 1994; and ■ 1. The authority citation for part 52 revised June 17, 1998 and submitted continues to read as follows: revised June 17, 1998 and submitted July 22, 1998; revised March 7, 2001 July 22, 1998; Authority: 42 U.S.C. 7410 et seq. and submitted April 12, 2001; and (xii) 30 TAC 116.740—Public Notice revised August 21, 2002 and submitted and Comment—adopted November 16, Subpart SS—Texas September 4, 2002; 1994 and submitted November 29, 1994; ■ 2. Section 52.2273 is amended by (iii) 30 TAC 116.714—Application revised June 17, 1998 and submitted adding a new paragraph (c) to read as Review Schedule—adopted November July 22, 1998; and revision adopted follows: 16, 1994 and submitted November 29, September 2, 1999 and submitted 1994, and revised June 17, 1998 and October 25, 1999; § 52.2273 Approval status. submitted July 22, 1998; (xiii) 30 TAC 116.750—Flexible * * * * * (iv) 30 TAC 116.715—General and Permit Fee—adopted November 16, (c) EPA is disapproving the Texas SIP Special Conditions—adopted November 1994 and submitted November 29, 1994; revision submittals under 30 TAC 16, 1994 and submitted November 29, revised June 17, 1998 and submitted Chapter 116—Control of Air Pollution 1994; revised June 17, 1998 and July 22, 1998; adopted August 9, 2000 by Permits for New Construction or submitted July 22, 1998; adopted and submitted September 11, 2000; and Modification as follows: August 9, 2000 and submitted revision adopted September 25, 2002 (1) The following provisions under 30 September 11, 2000; revised March 7, and submitted October 4, 2002; TAC Chapter 116, Subchapter A— 2001 and submitted April 12, 2001; (xiv) 30 TAC 116.760—Flexible Definitions: revised August 21, 2002 and submitted Permit Renewal—adopted November 16, (i) Portion of the definition of September 4, 2002; and revised August 1994 and submitted November 29, 1994. ‘‘modification of existing facility’’ in 30 20, 2003 and submitted September 25, [FR Doc. 2010–16776 Filed 7–14–10; 8:45 am] TAC 116.10(11)(F), submitted March 13, 2003; BILLING CODE 6560–50–P

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Part IV

Federal Communications Commission 47 CFR Part 1 Implementation of Section 224 of the Act; A National Broadband Plan for Our Future; Proposed Rule

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FEDERAL COMMUNICATIONS see the SUPPLEMENTARY INFORMATION envelopes must be disposed of before COMMISSION section of this document. entering the building. In addition to filing comments with • Commercial overnight mail (other 47 CFR Part 1 the Secretary, a copy of any comments than U.S. Postal Service Express Mail on the Paperwork Reduction Act and Priority Mail) must be sent to 9300 [WC Docket No. 07–245, GN Docket No. 09– East Hampton Drive, Capitol Heights, 51; FCC 10–84] information collection requirements contained herein should be submitted to MD 20743. • Implementation of Section 224 of the the Federal Communications U.S. Postal Service first-class, Act; A National Broadband Plan for Commission via e-mail to [email protected] Express, and Priority mail must be addressed to 445 12th Street, SW., Our Future and to Nicholas A. Fraser, Office of Management and Budget, via e-mail to Washington DC 20554. AGENCY: Federal Communications [email protected] or via People with Disabilities: To request Commission. fax at 202–395–5167. materials in accessible formats for people with disabilities (braille, large ACTION: Proposed rules. FOR FURTHER INFORMATION CONTACT: print, electronic files, audio format), Jonathan Reel, Wireline Competition SUMMARY: In this Further Notice of send an e-mail to [email protected] or call Proposed Rulemaking (FNPRM), the Bureau, Competition Policy Division, the Consumer & Governmental Affairs Commission proposes rules to expedite 202–418–1580. For additional Bureau at 202–418–0530 (voice), 202– access by telecommunications carriers information concerning the Paperwork 418–0432 (tty). and cable operators to utility poles. Reduction Act information collection Filings and comments are also Proposed measures include adoption of requirements contained in this available for public inspection and a specific timeline for poles survey and document, send an e-mail to copying during regular business hours make-ready work, use of outside [email protected] or contact Judith- at the FCC Reference Information contractors, and improving the [email protected]. Center, Portals II, 445 12th Street, SW., availability of data. The FNPRM also SUPPLEMENTARY INFORMATION: Pursuant Room CY–A257, Washington, DC 20554. proposes to improve the pole to sections 1.415 and 1.419 of the They may also be purchased from the attachments enforcement process, and Commission’s rules, 47 CFR 1.415, Commission’s duplicating contractor, proposes ways to make attachment rates 1.419, interested parties may file Best Copy and Printing, Inc., Portals II, as low and uniform as possible comments on or before August 16, 2010 445 12th Street, SW., Room CY–B402, consistent with section 224 of the and reply comments on or before Washington, DC 20554, telephone: (202) Communications Act. These steps September 13, 2010. Comments may be 488–5300, fax: (202) 488–5563, or via e- should lower both the cost of gaining filed using: (1) The Commission’s mail http://www.bcpiweb.com. access to utility poles and pole Electronic Comment Filing System This document contains proposed attachment rates. These actions are (ECFS), (2) the Federal Government’s information collection requirements. intended to remove impediments to the eRulemaking Portal, or (3) by filing The Commission, as part of its deployment of facilities and to increase paper copies. See Electronic Filing of continuing effort to reduce paperwork delivery of broadband services. Documents in Rulemaking Proceedings, burdens, invites the general public and the Office of Management and Budget DATES: 63 FR 24121 (1998). Comments are due on or before (OMB) to comment on the information • Electronic Filers: Comments may be August 16, 2010 and reply comments collection requirements contained in filed electronically using the Internet by are due on or before September 13, this document, as required by the accessing the ECFS: http:// 2010. Written comments on the Paperwork Reduction Act of 1995, fjallfoss.fcc.gov/ecfs2/ or the Federal Paperwork Reduction Act proposed Public Law 104–13. Public and agency eRulemaking Portal: http:// information collection requirements comments are due September 13, 2010. must be submitted by the public, Office www.regulations.gov. Comments should address: (a) • of Management and Budget (OMB), and Paper Filers: Parties who choose to Whether the proposed collection of other interested parties on or before file by paper must file an original and information is necessary for the proper September 13, 2010. four copies of each filing. If more than performance of the functions of the ADDRESSES: You may submit comments, one docket or rulemaking number Commission, including whether the identified by WC Docket No. 07–245; appears in the caption of this information shall have practical utility; GN Docket No. 09–51, by any of the proceeding, filers must submit two (b) the accuracy of the Commission’s following methods: additional copies for each additional burden estimates; (c) ways to enhance • Federal eRulemaking Portal: http:// docket or rulemaking number. the quality, utility, and clarity of the www.regulations.gov. Follow the Filings can be sent by hand or information collected; and (d) ways to instructions for submitting comments. messenger delivery, by commercial minimize the burden of the collection of • Federal Communications overnight courier, or by first-class or information on the respondents, Commission’s Web Site: http:// overnight U.S. Postal Service mail. All including the use of automated fjallfoss.fcc.gov/ecfs2/. Follow the filings must be addressed to the collection techniques or other forms of instructions for submitting comments. Commission’s Secretary, Office of the information technology. In addition, • People with Disabilities: Contact the Secretary, Federal Communications pursuant to the Small Business FCC to request reasonable Commission. Paperwork Relief Act of 2002, Public accommodations (accessible format • All hand-delivered or messenger- Law 107–198, see 44 U.S.C. 3506(c)(4), documents, sign language interpreters, delivered paper filings for the we seek specific comment on how we CART, etc.) by e-mail: [email protected] Commission’s Secretary must be might further reduce the information or phone: 202–418–0530 or TTY: 202– delivered to FCC Headquarters at 445 collection burden for small business 418–0432. 12th St., SW., Room TW–A325, concerns with fewer than 25 employees. For detailed instructions for Washington, DC 20554. All hand OMB Control Number: 3060–XXXX. submitting comments and additional deliveries must be held together with Title: Pole attachment Access information on the rulemaking process, rubber bands or fasteners. Any Requirements.

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Form Number: N/A. attachments by wireless carriers), and 3. A Proposed Five-Stage Timeline for Type of Review: New collection. seeks comment on the timeline and Wired Pole Attachment. The Respondents: Business or other for- exceptions or refinements, as well as the Commission proposes adopting a profit. development of a timeline for the specific five-stage timeline to govern the Number of Respondents and attachment of wireless facilities. The pole attachment process for wired Responses: 2,961 respondents; 20,427 Commission also proposes rules attachments consisting of the following responses. allowing the use of contract workers in five stages: (1) Survey; (2) estimate; (3) Estimated Time per Response: 6–300 certain circumstances, and proposes attacher acceptance; (4) performance; hours. reforming its access dispute-resolution and, if needed, (5) multiparty Frequency of Response: On occasion process consistent with the aims of the coordination. Depending how long the and annual reporting and recordkeeping National Broadband Plan. The applicant reviews the estimate, and requirements and third party disclosure Commission seeks to establish rental whether the existing attachers complete requirement. rates for pole attachments that are as their work in a timely manner, make- Obligation to Respond: Mandatory. low and close to uniform as possible, ready should be complete within a 105 Total Annual Burden: 965,202 hours. consistent with section 224 of the Act, to 149 day window after the utility Total Annual Cost: No cost. and the Commission seeks comment on receives a complete application for Privacy Act Impact Assessment: No proposals to accomplish this goal. access. The Commission does not impacts. propose at this time to apply this A. Expediting Access to Utility Poles Nature and Extent of Confidentiality: timeline to make-ready for wireless No need for confidentiality. 2. A Comprehensive Timeline for equipment or pole replacement. Needs and Uses: Delivery of Section 224 Access. The Commission 4. Stage 1—Survey: 45 Days. As telecommunications, information, and proposes a comprehensive timeline for current rules dictate, a request for access video services depends on the ability of the make-ready process, as continues to trigger a 45 day period for wireline and wireless providers of these recommended in the National the utility to respond. The Commission services to attach their facilities (e.g., Broadband Plan. The Commission proposes that, as the first stage of the cable and fiber) to existing utility begins the process of establishing a timeline, the Commission should retain infrastructure. The Commission Federal timeline that covers each step of existing Commission rule § 1.1403(b). A proposes a comprehensive regulatory the pole attachment process, from ‘‘request for access’’ is a complete scheme to ensure that the terms and application to issuance of the final application that provides the utility conditions of attachment are just and permit. The Commission believes that with the information necessary to begin reasonable under section 224 of the the Federal timeline should be to survey the poles. The current rule Communications Act. These proposals comprehensive and applicable to all gives utilities 45 days to provide a largely formalize existing practices, forms of communications attachments. written explanation of evidence and such as contract negotiations, The Commission proposes that it should information for denying the request for applications to attach, surveys and adopt a timeline covering the process of reasons of lack of capacity, safety, engineering analyses, coordinated certifying wireless equipment for reliability or engineering standards. The repositioning of existing attachments. attachment. The record before the rule is functionally identical to a But the proposals also impose some new Commission includes many examples of requirement for a survey and paperwork requirements, including web delay in make-ready work in states engineering analysis when applied to postings of information, and letters of without make-ready timelines, in wired facilities, and is generally notification among the affected parties. contrast to evidence of more expedited understood by utilities as such. The rule Both existing practices and new deployment in those states that have remains applicable to wireless facilities, proposals are incorporated in the adopted timelines. Section 224 imposes but could apply in a somewhat different paperwork burden estimates. Most of a responsibility on utilities to provide manner. A 45-day survey limit accords these responsibilities fall on the pole- just and reasonable access to any pole, with the time allowed for surveys in owning utility, but some paperwork is duct, conduit, or right-of-way owned or New York, Connecticut, and the required of prospective attaching controlled by it, in addition to Coalition Proposal, as well as the entities. Normal course-of-business preserving their ability to deliver their current rule. practices, including preparation, review, traditional services. The Commission is 5. The Commission proposes that all and payment of invoices, are not skeptical of the ‘zero-sum’ view that requests for attachment be included in included. some commenters seem to take with the timeframe for the survey stage, even Below is a synopsis of the respect to the resources devoted to pole where the request ultimately indicates a Commission’s Further Notice of attachments and regular maintenance. lack of capacity. Any right the owner Proposed Rulemaking in WC Docket No. To the extent utilities or other has to refuse to install a new pole, and 07–245, GN Docket No. 09–51, adopted commenters assert that they are unable other questions about timing, however, May 20, 2010, and released May 20, to satisfy these requirements, do not affect the applicant’s right to 2010. commenters are asked to provide further know whether the owner considers pole detail. Are utilities unable to hire replacement necessary. The Synopsis of Further Notice of Proposed enough workers to perform timely Commission seeks comment on whether Rulemaking surveys and make-ready, and to ramp to clarify what constitutes a sufficient 1. In this FNPRM, the Commission up their operations to meet demand? request to trigger the timeline. Utilities seeks comment on how to improve Inasmuch as they are unable to perform state that application errors cause them access to essential infrastructure, and pole attachments as needed without to miss deadlines, and New York has expedite the build-out of affordable impeding their provision of electric adopted specific rules governing the broadband services as well as service, why is this so? Are these issues application process. The Commission telecommunications and cable services. really a claim of insufficient cost asks whether it should adopt similar The Commission proposes a specific recovery, rather than inability to regulations, or leave the details of the timeline for all wired pole attachment provide make-ready work in a timely application process in the hands of requests (including fiber or other wired fashion? individual parties. The Commission also

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seeks comment on whether timing a reminder that those attachers have 45 needed and, after 60 days, may act should be adjusted when an application days to move, rearrange, or remove any independently of other existing that appears complete includes errors facilities as needed to perform the make- attachers to finish the project. that delay the survey. Should significant ready work and that, if they fail to do 10. Consequently, it is reasonable to errors justify stopping the clock? Should so, the utility or its agents, or the new allow extra time for the utility or its it matter whether the errors reflect lack attacher, using authorized contractors, agent to complete the make-ready with of due care by the applicant, or lack of may move or remove any facilities that a free hand. Given that the utility will information that the utility could have impede performance. Moreover, the have surveyed the poles and provided? Commission proposes that the coordinated rearrangement, and, after 60 6. Stage 2—Estimate: 14 Days. The obligation to complete make-ready work days, may act independently of other Commission proposes that, as the in this timeframe extend not only to the existing attachers, the Commission second stage in the pole access timeline, utility, but also to existing attachers. considers 30 days after the 45th day a a utility must tender an estimate of its Utilities contend that existing attachers reasonable extension of time to charges to perform any make-ready cause delays and have little incentive to undertake any coordination or planning work within 14 days after completing cooperate, especially if the applicant required to finish the project. The the survey. Both the New York timeline will be a competitor, and this constrains Commission seeks comment on this and the Coalition Proposal include a their ability to provide timely pole proposal. In addition to defining a similar deadline, and the Commission access to new attachers. The default timeline, the Commission proposes that such a timeframe is Commission seeks comment with regard recognizes the need to define certain reasonable. Although utilities to this assertion, as well as the incentive exceptions or limitations in appropriate commonly provide an estimate with the and ability of other attachers on a pole circumstances. survey and engineering analysis, an to discriminate against a new attacher. 11. Adjustments to the Timeline for estimate of charges is not clearly The Commission invites comment on the Number of Pole Attachment required under the current 45-day alternative or additional policies that Requests. In addition, the Commission response rule. The Commission could ensure the cooperation needed as recognizes the potential need to address proposes a deadline for estimates that is part of the make-ready process. By utilities’ concerns about possible separate from the survey in order to contrast, the Commission notes that the operational or logistical challenges or permit a utility to separate the Coalition Proposal would not adopt a the need to respond to factors outside engineering analysis from its estimation specific number of days for completion their control. Thus, the Commission of charges, and to permit the attacher of relevant make-ready work, instead seeks comment on any necessary time to examine and consider the proposing to perform such work ‘‘in a adjustments or exclusions from the timeline proposed above. engineering assessment before it reviews manner that does not discriminate in 12. Size of Request. The Commission an invoice. favor of the utility’s own needs or 7. Stage 3—Acceptance: 14 Days. The seeks comment on whether requests for customer work.’’ The Commission seeks Commission proposes that, as the third access to a particularly large number of comment on what metrics and data stage in the timeline, the applicant poles should be excepted from the would be needed to evaluate should have 14 days to accept the timeline, or subject to an alternative compliance with such an approach, and tendered estimate, consistent with New timeline. Requests for access vary how it would be reported or otherwise York’s practice. The Commission widely, and the Commission seeks made available. The Commission also considers it unreasonable to require a comment on how best to incorporate the seeks comment on the balance reflected utility to commit indefinitely to its size or complexity of requests into the in the Coalition Proposal in this regard make-ready proposal and estimate of rules. Utah and Vermont adjust the charges, and believes that imposing this between attachers’ interests in timely, duration of the survey and performance time limit on prospective attachers will predictable pole access and pole deadlines for both the size of the job and provide additional certainty. Limiting owners’ interests in ensuring safety, size of the utility. Utah divides requests review also meets the intention that the reliability, and sound engineering. for attachment into four categories: (1) timeline should be comprehensive, and 9. Stage 5—Multiparty Coordination: Up to 20 poles; (2) 21 to 300 poles, or address each phase of the process. The 30 Days. The Commission proposes that up to .5 percent of the owner’s poles in applicant may accept the estimate the fifth stage of the timeline—if Utah; (3) 300 to 3,000 poles, or 5 percent sooner, and need not wait 14 days needed—will provide time for any of the owner’s poles in Utah, up to 3,000 before accepting or rejecting it. coordination and make-ready work poles; and (4) requests that exceed 3,000 8. Stage 4—Performance: 45 Days. required in the event that some existing poles or 5 percent of the owner’s poles The Commission proposes that, as the attachers fail to move their facilities as in Utah, which are negotiated fourth stage in the timeline, payment by directed by the utility. The Commission individually. At each step, the lower the applicant should trigger a 45-day notes that incumbent LECs typically outcome of the absolute number or period for the completion of make-ready occupy more space on a pole than other percentage test applies. Vermont work, consistent with the approach in communications attachers and, due to staggers the timeline solely according to New York and Connecticut. Given the their location on a pole, often must be the percentage of the owner’s poles experience in New York and the first to move their communications where attachment is requested, which it Connecticut, the Commission finds 45 attachments as part of the make-ready divides at .5 percent, 3 percent, and 5 days to be a reasonable time period for process. And while current Commission percent; any request that exceeds 5% of the actual performance of make-ready rules provide that attachments by a the owner’s poles must be negotiated work. To implement this approach, the cable operator or non-incumbent LEC individually. Similarly, New York Commission proposes that, when it telecommunications carrier may not be requires applicants to give advance receives payment, a utility must notify moved by the utility until 60 days have notice of ‘‘significant’’ attachment immediately all entities whose existing passed, that rule does not govern requests. attachments may be affected by the attachments by incumbent LECs. Thus, 13. Comment is sought on the merits project. The Commission further after 45 days, the utility or its agent may and effectiveness of the states’ timeline proposes that notification must include move incumbent LEC attachments as adjustments or notice requirements as

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modifications to the proposed Federal other attachers to act quickly in concert. a utility and the carrier have reached a timeline described above. Utah and Section 224 requires that the utility give master agreement. Attachment of Vermont’s approach has the virtue of existing attachers a ‘‘reasonable wireless equipment may complicate calibrating the timeline to fit both the opportunity’’ to modify their engineering analyses, but may also size of the request and the size of the attachments. What notice would be avoid the multiparty notice and utility, but implementation depends appropriate in the context of particular coordination issues that characterize upon access to data that may not small jobs? rearrangement of wired facilities. Also, currently be readily available for 16. Stopping the Clock. The wireless carriers using a distributed utilities nationally. Should utilities Commission acknowledges that antenna system (DAS) attach to below a certain size have the option of circumstances beyond a utility’s control relatively few poles compared to cable sorting attachment requests into may require prioritization, or otherwise operators and wireline carriers that categories determined by a percentage of warrant interrupting the timeline. In attach to every pole that their network the utility’s in-State poles, and adjusting New York, ‘‘circumstances beyond the passes. Should a timeline for requests the timeline accordingly? If so, how owner’s control, other than resource for wireless equipment reflect these should the Commission define a large, problems, will excuse meeting the circumstances, and if so how? The medium, and small request, and what timetable. Non-payment of charges will Commission particularly asks utilities timeframe would be appropriate for also stop the clock for meeting that have permitted wireless equipment each level? Should small utilities timetables.’’ In Vermont, the clock stops to be installed on their poles to report negotiate all timelines individually? for extraordinary circumstances or their experience, and to describe their Alternatively, should the timeline apply reasons beyond the pole owner’s typical timeframes for meeting wireless to small utilities for requests up to a control. Comment is sought with regard attachment requests. The goal is to bring certain size, with any larger requests to stopping and restarting the clock. Are regularity and predictability to subject to individual negotiation? guidelines necessary or helpful? What attachment of wireless facilities while 14. Providing access on a rolling type of communication or notice acknowledging that the attachment of basis, or capping the number of between parties is expected? If so, what wireless telecommunications equipment attachments in a given time period, potential disputes would guidelines in or near the electric space may raise might provide an alternative approach resolve, and should guidelines be different safety, reliability, and to modifying the proposed timeline to specific or general? The Commission engineering concerns. accommodate larger jobs. The Coalition would expect the utility to return to the 19. Other Section 224 Timeline Issues. Proposal would limit any individual timeline as soon as circumstances Section 224 provides that, when an request to 250 poles, with pole access permit, which will generally be the owner intends to modify a pole, the requests limited to 600 attachments in same point that the utility resumes owner shall provide both written any one month. Utah considers a normal operation, and to keep all notification to ‘‘any entity that has request to attach to more than 300 poles interested parties reasonably informed. obtained an attachment’’ and a a large request, and counts all requests 17. Wireless Attachment Timeline ‘‘reasonable opportunity to add to or from any particular prospective attacher Issues. The Commission also solicits modify its existing attachment.’’ The within a calendar month as one comment on developing timelines for record suggests that modification may application. Regarding surveys, UTC section 224 access other than wired pole be required during make-ready when, reports that, on average, approximately attachments. First, the Commission for example, a pole that has been 19 percent of all requests take longer seeks comment on whether the wired grandfathered to a prior standard must than 45 days to process and, of that pole attachment timeline is appropriate be brought into compliance with current number, the reason for 30 percent of for wireless equipment. Utilities assert standards when a new attachment is missed deadlines was the size of the that wireless attachment presents added. Similarly, a utility may have project. Comment is sought regarding different safety, reliability, and been unaware of a safety violation until whether, and if so, how, the reasonable engineering concerns because wireless make-ready is performed. Does the size of a request would fit the timeline equipment varies widely; is often placed proposed timeline provide adequate that the Commission proposes. The in or near the electric lines; and requires time for utilities to implement this Commission also asks whether that size a power source. The current rule obligation? The definition of ‘‘pole should be adjusted for small utilities, requiring a response to pole access attachment’’ in section 224(a)(4) and, if so, what thresholds are requests within 45 days applies in full includes attachments to a pole, duct, appropriate. to utilities that receive requests by conduit, or right-of-way. The record 15. Just as some requests might prove wireless carriers, however. Where a compiled in this proceeding almost too large for the timeline to utility has no master agreement with a exclusively addresses issues of accommodate, some attachers might carrier for wireless attachments attachments to poles. Beyond timeline seek faster action on smaller requests. requested, such as pole top attachments, issues for access to poles, comment is Connecticut accelerates the deadline the utility may satisfy the requirement sought on whether to implement this when an applicant requests access to to respond with a written explanation of timeline for access to section 224 ducts, four or fewer attachments. Utah its concerns with regard to capacity, conduits, and rights-of-way owned or distinguishes access requests for 20 safety, reliability, or engineering controlled by a utility. Has delayed poles or less. Should the Commission standards. The Commission seeks access to infrastructure other than poles adopt an alternative timeline for small comment on whether it should require impeded the deployment of broadband requests, and, if so, how many poles that the response be sufficiently detailed or other services? If so, should the should count as a small request and to serve as a basis for negotiating a proposed pole attachment timeline set what deadlines should apply? master agreement, which would dictate forth above be applied to requests for Commenters should consider whether a timely process for future attachments. access to other infrastructure, or are some deadlines may be easier to scale 18. The Commission seeks comment modifications or other considerations back than others, and address the on considerations that would affect a needed? concern that a utility that can act timeline tailored to suit requests for 20. Use of Outside Contractors. quickly alone may not be able to induce attachment of wireless equipment after Attachers frequently seek the ability to

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use independent contractors to deploy approved outside contractors. Under the and engineering standards, although the their facilities when the utility fails to proposed approach, utilities likewise Commission seeks comment on perform survey and make-ready work in would be entitled to rely on their own alternative approaches, as well. a timely manner. The National personnel unless they are unable to 25. Although the Commission Broadband Plan recommends rules that complete work within the timeline. If proposes to allow electric utilities and allow attachers to use independent, the utility decides to deploy its other non-incumbent LEC pole owners utility-approved and certified workforce on other projects or otherwise to pre-approve the contractors they will contractors to perform engineering is unable to meet a deadline, the permit to perform surveys and make- assessments and communications make- prospective attacher would be free to ready, their discretion should not be ready work, as well as independent use contractors that are approved and unbounded, and the Commission surveys. In defining how and when certified by the utility. Comment is proposes the following requirements. attachers may employ contractors in sought on this general approach, First, the Commission proposes to response to that recommendation, the including the relative benefits of require such utilities to post or Commission first delineates between: (a) preserving greater control for utilities as otherwise share with attachers a list of Survey and make-ready work; and (b) compared to potential time- or cost- approved- and certified contractors, the actual attachment of facilities. As a savings that attachers might obtain if including any contractors that the utility general matter, the Commission believes they have appropriate contractors itself uses. Second, the Commission it is appropriate to allow greater utility available and ready to do make-ready proposes to require each such utility to control over the former by permitting work. post or otherwise share with attachers utilities to require the use of pre- 23. With respect to actual attachment the standards it uses to evaluate approved contractors for this work, but of facilities to poles, the Commission contractors for approval and continuing a less restrictive approach, proposes to retain the existing rules. certification and require the originally established in 1996, for the The make-ready process is designed to nondiscriminatory application of those latter. The Commission also address the utilities’ safety, reliability standards. Under the proposal, these distinguishes between electric utilities and engineering concerns prior to a new utilities may design their requirements and incumbent LECs regarding the level attachment. So when that process is as they see fit, by, for example, setting of control that each may exercise over complete and facilities are ready to be training standards, approving training an attacher’s use of independent attached, the utility’s concerns are less manuals, or otherwise clarifying their contractors. pressing, and an attacher’s interest in requirements. 21. Basic Right to Use Contractors. rolling out properly permitted facilities 26. These requirements are minimally The Local Competition Order is proportionately larger. Therefore, for burdensome and are sufficient to established a general principle that the post-make-ready attachment of prevent a utility from artificially attachers may rely upon independent facilities, the Commission retains the limiting the list of approved contractors. contractors; that order did not existing standard of ‘‘same The Commission is unpersuaded by differentiate between two different types qualifications, in terms of training, as contentions from certain utilities that of work: (a) Surveys and make-ready; the utilities’ own workers,’’ and the decisions on outside contractors will and (b) post-make-ready attachment of continues to deny utilities the right to lead to resource diversion of non- lines. As a result, there have been predesignate or co-direct an attacher’s employee ‘‘resources,’’ undercutting ongoing disagreements regarding the chosen contractor. The Commission their ability to deliver traditional ability of attachers to use contractors to seeks comment on this proposal, as well services. Nothing in this proposal affects perform survey and make-ready work as other alternatives. a utility’s control of its employees. The under existing law. As discussed below, 24. Approval and certification of Commission is aware of the need to addressing these issues in greater detail contract workers. With respect to balance the work of infrastructure here the Commission proposes to clarify electric utilities and other non- personnel, but also mindful that section and revise this approach in several incumbent LEC pole owners, the 224 imposes obligations on utilities that respects in the context of surveys and Commission proposes that: To perform may require accommodations and make-ready to reflect utilities’ concerns surveys or make-ready work attachers adjustments. The Commission seeks regarding safety, reliability, and sound may use contractors that a utility has further comment on the staffing issues, engineering. The Commission also finds approved and certified for purposes of especially regarding the utilities’ rights differing approaches warranted for performing such work. This is to the time and attention of contractors. incumbent LEC pole owners as consistent with the approach of the New The Commission invites comment compared to other pole owners. York Commission—cited approvingly concerning whether the proposed 22. In particular, with respect to by some attachers—which entitles requirements are necessary, appropriate, surveys and communications make- applicants for attachment to hire and sufficient for their purpose. ready work, the Commission proposes contractors from a utility-approved list 27. The Commission seeks comment that: Attachers may use contractors to if the utility cannot or will not meet on this proposal, including whether it perform surveys and make-ready work if survey and make-ready deadlines. A strikes the right balance of rights and a utility has failed to perform its number of utilities express concern that burdens of attachers and utilities, and obligations within the timeline, or as the safety and reliability of their poles any implementation issues the otherwise agreed to by the utility. As may be jeopardized by independent Commission should address. For discussed above, the Commission contractors. Crucial judgments about example, if no list is provided, or if one proposes a pole access timeline based in safety, capacity, and engineering are is not available when the application is significant part on the approach taken in made during surveys and make-ready, filed, should the existing ‘‘same New York. Within that regulatory and the Commission finds the utilities’ qualifications’’ standard apply by framework, the New York Commission concerns reasonable. Permitting such default? The Commission also seeks gives utilities the option of using their utilities to decide which contractors it comment on whether any additional own workers to do the requested work, will approve and certify for surveys and criteria are warranted. For example, or to hire outside contractors make-ready addresses the need that should this list contain a minimum themselves, or to allow attachers to hire utilities maintain control over safety number of contractors to ensure ready

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availability of contractors if make-ready The Commission sees no conflict perform ‘‘engineering assessments and work is needed? Should the list between the use of contractors as communications make-ready work.’’ In automatically include any contractors outlined above and the electric utilities’ any event, the word ‘‘proximity’’ is previously used by the utility for its safety and engineering concerns. Nor ambiguous, and could mean either ‘‘up own purposes? Should there be a does the Commission see a conflict with to the electric lines’’ or ‘‘among the presumption that contractors that are the attachers’ desire to use independent electric lines.’’ The former is the more approved and certified by a utility (or contractors. Use of contractors is an reasonable choice and the Commission multiple utilities) other than the pole appropriate tool to facilitate timely believes it is appropriate to remove this owner be acceptable for make-ready deployment of facilities only when it ambiguity from the rules. Thus, the work? does not circumvent or diminish the Commission proposes that, generally, 28. With respect to incumbent LECs, electric utilities’ vital role in attachers and their contractors may be the Commission proposes that: to maintaining the safety, reliability, and limited to the communications space perform surveys or make-ready work sound engineering of the pole and safety space below the electric attachers may use any contractor that infrastructure. space on a pole. However, utilities must has the ‘‘same qualifications, in terms of 31. In the case of incumbent LEC- permit contract personnel with training, as the utilities own workers.’’ owned poles: attachers performing specialized communications-equipment As discussed above, in the Local surveys and make-ready work using training or skills that the utility cannot Competition Order, the Commission contractors shall invite a representative duplicate to work among the power reasoned that ‘‘[a]llowing a utility to of the incumbent LEC to accompany and lines, such as work with wireless dictate that only specific employees or observe the contractor, but the antennae equipment. Because of the contractors be used would impede the incumbent LEC shall not have final heightened safety considerations, any access that Congress sought to bestow decision-making power. In the majority such work shall be performed in concert on telecommunications providers and of cases, electric power companies and with the utility’s workforce and when cable operators * * *.’’ These risks are other non-incumbent LECs are typically the utility deems it safe. heightened in the context of incumbent disinterested parties with only the best LEC utility poles, where the new interest of the infrastructure at heart; Other Options To Expedite Pole Access attacher typically will be a competitor of incumbent LECs may make no such 33. Payment for Make-ready Work. In the incumbent LEC. Thus, the balancing claim. In contrast to the vast majority of addition to adopting a formal pole of safety concerns and protection for electric utilities or similar pole owners, access timeline, the Commission seeks attachers differs from the context of as discussed above, incumbent LECs are to correctly align the incentives to electric utility-owned poles, and leads usually in direct competition with at perform make-ready work on schedule. us to propose an approach that grants least one of the new attacher’s services, Accordingly, the Commission proposes greater flexibility to attachers. and the incumbent LEC may have strong to adopt the Utah rule that applicants 29. Direction and Supervision of incentives to frustrate and delay pay for make-ready work in stages, and Outside Contractors. The Commission attachment. To allow an incumbent LEC may withhold a portion of the payment proposes that, for surveys and make- a veto over contractors would provide until the work is complete. In Utah, ready work, utilities and prospective them with an undue ability to act on applicants trigger initiation of attachers may jointly direct and that incentive. The Commission seeks performance by paying one half the supervise contractors. As with approval comment on whether incumbent LECs estimated cost; pay one quarter of the and certification of contract workers, the have other legal responsibilities or estimated cost midway through Commission proposes a differing obligations under joint use agreements performance; and pay the remainder approach for incumbent LEC pole that could counsel in favor of a different upon completion. What schedule of owners and other pole owners. And in approach. payment is normal in comparable the context of actual attachment of 32. Working Among the Electrical circumstances in other commercial facilities to poles, the Commission does Lines. The Commission further proposes contexts? Alternatively, should the not propose any affirmative right for that all utilities may deny access by Commission adopt a general rule utilities to jointly direct and supervise contractors to work among the electric permitting payment for make-ready contractors. lines, except where the contractor has work in stages, and leave the details of 30. For electric utilities and other special communications-equipment the specific payment schedule to non-incumbent LEC pole owners, the related training or skills that the utility negotiation? Commission proposes that: attachers cannot duplicate. In so doing, the 34. Schedule of Charges. The performing surveys and make-ready Commission clarifies that ‘‘proximity of Commission proposes that utilities shall work using contractors shall invite electric lines’’ extends into the safety make available to attaching entities a representatives of the utility to space between the communications and schedule of common make-ready accompany the contract workers, and electrical wires but, not among the lines charges. The National Broadband Plan should mutually agree regarding the themselves. The Commission concluded recommended that the Commission amount of notice to the utility. The in the Local Competition Order that ‘‘[a] ‘‘[e]stablish a schedule of charges for the Commission further proposes that, utility may require that individuals who most common categories of work (such whenever possible, both parties’ will work in the proximity of electric as engineering assessments and pole engineers should seek to find mutually lines have the same qualifications, in construction)’’ as an additional way to satisfactory solutions to conflicting terms of training, as the utility’s own lower the cost and increase the speed of opinions, but when differences are workers, but the party seeking access the pole attachment process. Such a irreconcilable, the pole owners’ will be able to use any individual schedule could provide transparency to representative may exercise final workers who meet these criteria.’’ attachers seeking to deploy their authority to make all judgments that Safety, reliability, and engineering networks and could fortify the ‘‘just and relate directly to insufficient capacity or concerns are strongest regarding work reasonable’’ access standard for pole safety, reliability, and sound among energized power lines, and the attachments. The Commission seeks engineering, subject to any otherwise- National Broadband Plan calls for the comment generally on the benefits and applicable dispute resolution process. use of independent contractors to any limitations associated with

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requiring utilities to prepare such a sometimes give that user a degree of conduits, and rights-of-way. As the schedule. Further, the Commission asks ‘‘control’’ over access to the pole to the National Broadband Plan points out, whether and how schedules of common point that the user may have a specific there are hundreds of entities that own make-ready charges are used and duty to provide access under section and use this infrastructure, and accurate implemented by utilities today. The 224? information about it is important for the Commission also seeks comment on any 36. The Commission also seeks efficient and timely deployment of comparable State requirements. For comment regarding the managing advanced and competitive example, the Commission notes that the utility’s responsibility to administer the communications networks. Initially, the New York Commission’s rules require pole during the make-ready process. In Commission asks what data would be that make-ready charges be in each pole particular, under section 224, an beneficial to maintain, such as the owner’s operating agreement, be posted existing attacher may not be required to ownership of, location of, and on its Web site, with supporting bear any of the costs of rearranging its attachments on a pole. Should the documentation available to attachers on attachment to make room for a new Commission collect these data itself, or request, and can only be changed attacher. As a practical matter, only the might industry, including third-party annually with notice. The Commission utility has privity with both the entities, be better suited for the task? If also asks if there are other mechanisms requesting entity and the existing the latter, what is the appropriate role currently in use, such as standardized attachers, and it appears reasonable for for the Commission regarding the contract terms, that provide the the utility to manage the transfer of establishment of common standards and necessary information and transparency funds. The Commission is reluctant, oversight? Could or should this to the make-ready process, without however, to entrust this responsibility to information, if collected and maintained additional government mandate. the managing utility without standards by separate entities, be aggregated into Finally, the Commission seeks comment or guidance. Therefore, it proposes to a national database? on whether particular make-ready jobs require the utility to collect from 39. To gain perspective on the scope and charges are the most common, and existing attachers statements of any of this task, the Commission seeks thus would most easily be applied to a costs that are attributable to comment on the number of poles for generalized schedule of charges. rearrangement; to bill the new attacher which data would need to be gathered, for these costs, plus any expenses the how long it would take to inventory 35. Administering Pole Attachments. utility incurs in its role as them, and the cost of such an inventory. The Commission seeks comment on clearinghouse, and to disburse The Commission also asks what existing ways to simplify the relationship compensatory payment to the existing methods utilities currently use, such as between prospective attachers and attachers. The Commission seeks the National Joint Utilities Notification utilities when there is joint ownership. comment on this proposal, and any System (NJUNS) or Alden Systems’ Joint The record suggests that, when a pole is alternatives for managing this process. Use services. How can the Commission jointly owned, a prospective attacher The Commission also asks whether ensure participation by all relevant may sometimes be required to obtain utilities require any further clarification parties, including timely updates of permission to attach from both owners. of their role in managing the pole during information? For example, is it Consolidating administrative authority the make-ready process. For example, reasonable for a utility to require all in one managing utility would simplify should the managing utility schedule attachers to actively use or populate a a prospective attacher’s request for the sequence for attaching entities to system it uses, such as NJUNS, to access, and clarify which utility will move their facilities during make-ready? inventory pole attachments, perhaps as interact with the requesting entity and 37. Attachment Techniques. In the a term of the master agreement? How existing attachers during the make-ready Order, the Commission clarified that the can the Commission ensure that the process. The Commission therefore Act requires a utility to allow cable costs are shared equitably by pole proposes that, when more than one operators and telecommunications owners and other users of the data? The utility owns a pole, the owners must carriers to use the same pole attachment Commission also seeks comment on the determine which of them is the techniques that the utility itself uses or challenges to creating and maintaining managing utility for any jointly-owned allows. Some commenters state, such a database, including security pole. Also, requesting entities need only however, that even if a utility has issues, access for prospective attachers, deal with the managing utility, and not employed such practices in the past, it and the potential burden to small both utilities. The Commission also should be able to prohibit boxing and utilities, as well as on any additional proposes that both utilities should make bracketing for both itself and other benefits such data would have for publicly available the identity of the attachers going forward. If a utility maintaining safe and reliable managing utility for any given pole, and changes its practices over time to infrastructure. the Commission seeks comments on exclude attachment techniques such as 40. The Commission also expects that these proposals. The Commission boxing, to what extent would the the timeline and related rules proposed invites comment on whether the nondiscrimination standard in the above will help expedite pole access, proposed regulations are sufficient to statute automatically address this, or are and proposes that it monitor whether clarify joint owners’ rights and rules necessary? The Commission also those rules, if adopted, achieve the responsibilities with regard to the right seeks comment on how standards intended results. The Commission seeks of access. In addition, the Commission should apply when a pole is jointly comment on the most appropriate seeks comment on joint use agreements, used or owned, and on whether utilities’ method for it to use in this regard. and whether they may inhibit the decisions regarding the use of boxing Would the other possible improvements managing owner from administering the and bracketing should be made publicly to the collection and availability entire pole. If the joint user is an available. discussed above provide a source of incumbent LEC, how should the 38. Improving the Availability of Data. such information? If not, should the Commission address concerns that it The Commission seeks comment on Commission otherwise collect such might not be inclined to devote its how to improve the collection and information, either formally, or through resources to providing access for a availability of information regarding the a periodic Public Notice or Notice of competitor? Do joint use agreements location and availability of poles, ducts, Inquiry? Similarly, is there other

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information that the Commission should participants? Do the Transition Indeed, several complainants have collect to monitor the effectiveness of Administrator procedures established in indicated to Commission staff that, any other pole access, enforcement, or the 800 MHz Report and Order provide although they would be interested in pricing rules it might adopt? a suitable model in developing these mediation, they felt they had no choice forums? The Commission invites but to file a complaint first, because of B. Improving the Enforcement Process comment. § 1.1404(m). Thus, the Commission 41. Revising Pole Attachment Dispute 44. Efficient Informal Dispute believes the rule unnecessarily pushes Resolution Procedures. In response to Resolution Process. In the Pole some parties into formal litigation at a the Pole Attachment Notice, the Attachment Notice, the Commission stage when informal resolution still is Commission received several comments noted that the Commission has possible. Accordingly, the Commission suggesting that the Commission modify encouraged parties to participate in proposes that the 30-day requirement in its procedures for resolving pole staff-supervised, informal dispute § 1.1404(m) be eliminated. attachment complaints. In addition, the resolution processes and that these 46. Remedies. Under section 224 of National Broadband Plan included processes have been successful in the Act, the Commission is charged with recommendations that the Commission resolving pole attachment matters. If a duty to ‘‘regulate the rates, terms, and implement institutional changes, such parties are able informally to agree to a conditions for pole attachments’’ and to as the creation of specialized forums resolution of their problems, they can ‘‘adopt procedures necessary and and processes for attachment disputes, avoid the time and expense attendant to appropriate to hear and resolve and adopt process changes to expedite formal litigation. Some attachment complaints concerning such rates, dispute resolution. disputes may be more quickly or cost- terms, and conditions.’’ The 42. The Commission asks whether it effectively resolved by the companies Commission has broad authority to should modify its existing procedural involved themselves or through other ‘‘enforc[e] any determinations resulting rules governing pole attachment local dispute resolution processes from complaint procedures’’ and to ‘‘take complaints. Should the Commission outside the Commission’s auspices. The such action as it deems appropriate and adopt additional rules or procedures to Commission seeks comment on whether necessary, including issuing cease and address specific issues that arise with the Commission should attempt to desist orders * * *.’’ In furtherance of wireline or wireless attachments? Do encourage this type of local dispute these statutory duties, the Commission any of the Commission’s other resolution with a set of ‘‘best practices,’’ has adopted procedural rules governing procedural rules, such as the rules or in other ways. If the Commission complaints alleging both unreasonable governing formal complaints under were to develop a set of best practices, rates, terms, and conditions for pole section 208 of the Act, or the rules what would the likely impact be on the attachment, and the unlawful denial of governing complaints related to cable process compared with how disputes pole access. service, provide a suitable model in are resolved today? Should the best 47. Section 1.1410 of the pole developing new procedural rules for practices or local processes apply to all attachment rules lists the remedies pole attachment complaints? What other attachment disputes, safety and available in a complaint proceeding issues concerning dispute resolution engineering issues only, or have some where the Commission determines that processes should the Commission other scope? The New York a challenged rate, term, or condition is consider? Commission, for instance, requires some not just and reasonable. In such cases, 43. If the Commission were to resolution at the company level before the Commission may terminate the establish specialized forums to handle a formal complaint can be filed. Should unjust and unreasonable rate, term, or pole attachment disputes, what form the Commission encourage similar condition, or substitute a just and and structure should these forums take? efforts, suggest that parties seek reasonable rate, term, or condition Under what legal authority could the mediation or arbitration before filing a established by the Commission. Commission authorize the formation of complaint, or are there other processes Moreover, § 1.1410(c) also permits a such forums? How would the forums be that parties have found helpful and can monetary award in the form of a formed, managed, and funded? How recommend? Are there other ways that ‘‘refund, or payment,’’ which will should forum participants be selected? the Commission should encourage this ‘‘normally be the difference between the What specific expertise should staff of type of dispute resolution? amount paid under the unjust and/or these forums have? What role should 45. The Pole Attachment Notice unreasonable rate, term, or condition the Commission or Commission staff questioned whether § 1.1404(m) has had and the amount that would have been play with regard to the forums? What the unintended consequence of paid under the rate, term, or condition specific role should such forums play in discouraging informal resolution of established by the Commission from the the resolution of pole attachment disputes. For that reason, the date that the complaint, as acceptable, disputes? Should the forums engage in Commission sought comment on was filed, plus interest.’’ Although the mediation or other alternative dispute whether the rule should be amended or Commission occasionally has departed resolution mechanisms? Should the use eliminated. The Commission received from the notion that the filing of a pole of the forums for dispute resolution be no substantive comment concerning attachment complaint marks the mandatory or voluntary? Should these § 1.1404(m), which provides that beginning of a refund period, it usually specialized forums issue decisions in potential attachers who are denied has used the complaint filing date as the specific cases? How could the decisions access to a pole, duct, or conduit must starting point for determining refunds. of the forums be challenged, and file a complaint ‘‘within 30 days of such 48. The Commission’s rules do not pursuant to what standard? Should such denial.’’ The experience of handling expressly set forth the remedies decisions be appealable to the pole attachment complaints, however, available where the Commission Commission? What kinds of rules or leads us to believe that the rule hinders determines that a utility has wrongfully procedures should govern the work of informal resolution of disputes. denied or delayed access to poles in the specialized forums? How would the Specifically, the existence of the rule violation of section 224(f) of the Act. In forum participants avoid conflicts of deters attachers from pursuing pre- addition, the rules do not provide for an interest when engaging in dispute complaint mediation and has prompted award of compensatory damages in resolution processes with industry the premature filing of complaints. cases where either an unlawful denial or

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delay of access is established, or a rate, technique on poles may increase the Energy, and Wheeling Power report term, or condition is found to be unjust charges an attacher must pay third unauthorized attachment rates of 6.18 or unreasonable. The Commission parties to attach its facilities to poles. percent, 4.79 percent, and 2 percent, proposes that § 1.1410 of the Just compensation in such a case would respectively. Commission’s pole attachment not involve a refund by the pole owner, 53. Attachers maintain that utilities’ complaint rules be amended to but might require it to reimburse the allegations of unauthorized attachments enumerate the remedies available to an attacher for costs the attacher would not are ‘‘overblown.’’ Time Warner Cable, for attacher that proves a utility has have incurred but for the owner’s instance, contends that such assertions unlawfully delayed or denied access to unreasonable ban on boxing. often are based on poor recordkeeping its poles. The Commission proposes that 51. Finally, as noted above, (including incorrect system maps), the rule specify that one remedy § 1.1410(c) also permits a monetary changes in pole ownership (e.g., a utility available for an unlawful denial or delay award in the form of a ‘‘refund, or considers a once-authorized attachment of access is a Commission order payment,’’ measured ‘‘from the date that on a pole to be unauthorized after directing that access be granted within the complaint, as acceptable, was filed, ownership is transferred to the utility), a specified time frame, and/or under plus interest.’’ The Commission adopted use of novel and inappropriate specific rates, terms, and conditions. § 1.1410(c) in 1978 to ‘‘avoid abuse and definitions of attachment that deviate Because the Commission already has encourage early filing when rates are from the parties’ past practices and authority to issue such orders, and has considered objectionable by the CATV industry standards, and utilities’ done so in the past, this rule change operator.’’ But the experience in offering of financial incentives to their would simply codify existing precedent. handling pole attachment complaints contractors to find unauthorized 49. The Commission further proposes leads us to believe that § 1.1410(c) fails attachments. Other attachers are of a amending § 1.1410 to specify that to make injured attachers whole. similar mind. compensatory damages may be awarded Generally speaking, a plaintiff is 54. Based on the current record, the where an unlawful denial or delay of entitled to recompense going back as far Commission is unable to gauge with access is established, or a rate, term, or as the applicable statute of limitations certainty the extent of the problem of condition is found to be unjust or allows. There does not appear to be a unauthorized attachments. Indeed, the unreasonable. Because the current rule justification for treating pole attachment data suggest that the number of provides no monetary remedy for a disputes differently. Moreover, the unauthorized attachments can vary delay or denial of access, utilities have Commission finds that § 1.1410(c) dramatically from one pole system to little disincentive to refrain from discourages private negotiations another. Nevertheless, the Commission conduct that obstructs or delays access. between parties about the believes the dangers presented by Under the current rule, the only reasonableness of terms and conditions unauthorized attachments transcend the consequence a utility engaging in such of attachment and instead encourages an theoretical. True unauthorized conduct is likely to face in a complaint attacher first to file a complaint and attachments can compromise safety proceeding is a Commission order then to negotiate with the utility. For because they bypass even the most requiring the utility to provide the these reasons, the Commission proposes routine safeguards, such as verifying access it was obligated to grant in the that § 1.1410(c) be modified by deleting that the new attachment will not first place. Currently, a utility that the phrase ‘‘from the date that the interfere with existing facilities, that competes with the attacher may complaint, as acceptable, was filed.’’ adequate clearances are maintained, that calculate that the cost of defending an Additionally, the Commission proposes the pole can safely bear the additional access complaint before the that the phrase ‘‘consistent with the load, and that the attachment meets the Commission, even if it receives an applicable statute of limitations’’ be appropriate safety requirements of the adverse ruling, may be justified by the added to emphasize that any relief utility and the NESC. The question advantage the pole owner has gained by sought is governed by the relevant becomes, then, how best to address the delaying a rival’s build-out plans. limitations period. problem of unauthorized attachments. Allowing an award of compensatory 52. Unauthorized Attachments. In the 55. The Commission sought comment damages for unlawful delays or denials Pole Attachment Notice, the in the Pole Attachment Notice on of access would provide an important Commission sought comment on the whether existing enforcement disincentive to pole owners to obstruct prevalence of attachments installed on mechanisms adequately address alleged access. It would also give the poles without a lawful agreement with unlawful practices by attachers and Commission the ability to ensure that the pole owner (so-called ‘‘unauthorized ensure the safety and reliability of the attacher is ‘‘made whole’’ for the attachments’’). In response, several critical electric infrastructure. Under delay it has suffered. utilities claim that a significant number current precedent, unauthorized 50. Should § 1.1410 be amended to of pole attachments on their poles are attachment fees imposed by utilities are provide for an award of compensatory unauthorized and violate relevant safety not ‘‘per se unreasonable,’’ and the damages where a rate, term, or codes. For example, Florida Power and ‘‘penalty may exceed the annual pole condition is found to be unjust or Light reports finding 33,350 attachment rate.’’ A ‘‘reasonable unreasonable? Under the current rule, unauthorized attachments in an audit penalty,’’ however, cannot ‘‘exceed an the only monetary remedy specified in conducted in 2006. EEI and UTC amount approximately equal to the such cases is a refund. Although the maintain that, for some utilities, annual pole attachment fee for the refund remedy may adequately unauthorized attachments meet or number of years since the most recent compensate an attacher who has been exceed 30 percent of attachments. AEP inventory or five years, whichever is charged excessive rental rates or make- submits the results of surveys less, plus interest * * *.’’ ready fees, it does not compensate the conducted by five utilities indicating 56. Pole owners complain that this attacher for unreasonable terms and that unauthorized attachment rates in precedent results in penalties that are conditions of attachment that do not the double-digits are common. In not steep enough to deter attachers from involve payments to the pole owner. For contrast, other utilities report mounting facilities for which they have example, a pole owner that unlawfully percentages that are significantly lower. no permit or that fail to comply with bars an attacher from using the boxing For instance, Progress Energy, Xcel relevant safety and engineering

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standards. In one utility’s words, the another entity, creates a hazard by business plans. One commenter unauthorized attachment penalty adding facilities, changes its safety observes that ‘‘cable operators or approved by the Commission is ‘‘not a standards, renegotiates an attachment telecom providers may need to sign an penalty at all in most cases,’’ because the agreement, or otherwise causes a unreasonable pole attachment attacher ends up having to pay only formerly permitted and safe attachment agreement while they are undergoing what it would have owed had it to lose that status)? time-sensitive build-outs or plant followed appropriate permitting 60. How could the Oregon standards upgrades and cannot afford to be procedures in the first place. In contrast, be enforced—through provisions in pole delayed by protracted negotiations or some attachers insist that the current attachment agreements, through the litigation before the Commission.’’ The regime is sufficient, while others assert complaint resolution mechanism in Commission’s willingness to review the that allowing the imposition of penalties section 224 of the Act, or through both? reasonableness of contract provisions, in would contravene principles of contract Would changes to the Commission’s the view of some attachers, has served law. pole attachment rules (47 CFR 1.1401– to check the utilities’ abuse of their 57. Although the Commission makes 1.1418) be necessary to enable utilities superior bargaining and encourage them no specific findings today as to whether to bring unauthorized attachment to negotiate in good faith, thus reducing the Commission should allow stricter complaints? the incidence of disputes. penalties for unauthorized attachments, 61. If the Oregon system is not 64. Attachers oppose amending the it appears that penalties amounting to adopted, what are alternative penalty Commission’s rules to impose time little more than back rent may not systems that would deter unauthorized limits on the right to challenge the discourage non-compliance with attachments? Are there other models the provisions in a pole attachment authorization processes. In other words, Commission should consider? What are agreement. They argue that such time competitive pressure to bring services to the contours of such alternatives, limits are inappropriate because a given market may overwhelm the deterrent including notice to attachers, safe term in a pole attachment agreement effect of modest penalties. And so the harbors, opportunities for correction, may not be unreasonable on its face, but Commission seeks additional comment exceptions for safety violations caused/ may only become so through a utility’s on practical and lawful means of contributed to by pole owners, and later interpretation or application. They increasing compliance through the use means of dispute resolution? predict that imposing time limits on of more substantial penalties. 62. The ‘‘Sign and Sue’’ Rule. Under challenges to the reasonableness of 58. One potential alternative to the current Commission rules and terms would lead to unnecessary pole Commission’s present penalty regime is precedent, an attacher may execute a attachment litigation because attachers a system akin to the one adopted by the pole attachment agreement with a would be forced immediately to Oregon Public Utilities Commission utility, and then later file a complaint challenge terms that may, (Oregon Commission). The Oregon challenging the lawfulness of a hypothetically, be unreasonably applied Commission specifies penalties of $500 provision of that agreement. This or interpreted in the future. per pole, per year, for attachment of process, sometimes called ‘‘the sign and 65. Several utilities filed comments facilities without an agreement, and, for sue rule,’’ allows an attacher to seek opposing the sign and sue rule and attachments without a permit, $100 per relief where it claims that a utility has suggesting that it be modified or pole plus five times the current annual coerced it to accept unreasonable or eliminated. They contend that the rule rental fee per pole. The Oregon system discriminatory contract terms to gain has engendered distrust between pole- further includes, among other things, a access to utility poles. In the Pole owning utilities and attaching entities. provision for attacher notification, Attachment Notice, the Commission According to these utilities, attachers opportunity for an attacher to correct sought comment on the ‘‘sign and sue’’ are willing to sign virtually any pole violations or submit a plan for rule, and asked whether the attachment agreement as a matter of correction, and a mechanism for Commission should adopt some expediency, knowing they can use the resolution of factual disputes. The contours to the rule, such as time-frames Commission’s complaint process ‘‘to Oregon penalties have been tested and for raising written concerns about a forestall or upset the utility’s ability to refined with assistance from the Oregon provision of a pole attachment enforce the agreement.’’ The Joint Use Association. agreement. As discussed below, the Commission’s willingness to entertain 59. The Commission seeks comment Commission proposes that the sign and pole attachment complaints at any time, on whether the system of penalties sue ‘‘rule’’ should be retained, but also they argue, undermines a pole owner’s instituted by the Oregon Commission proposes that it be modified through an confidence ‘‘that it will realize the has been effective in reducing the amendment to the Commission’s rules bargain it has struck with an attaching incidence of unauthorized attachments that would require an attacher to entity.’’ As one commenter put it, the in that State. What are the benefits and provide a pole owner with notice, sign and sue rule ‘‘allows attachers to shortcomings of the Oregon system? during contract negotiations, of the ‘cherry pick’ contractual provisions that Should the Commission adopt the terms it considers unreasonable or they would like to disavow, while not Oregon standards as presumptively discriminatory. extending the same privilege to reasonable penalties for unauthorized 63. In response to the Pole utilities.’’ attachments? Would the Commission Attachment Notice, a number of 66. Utilities have proposed a number need to modify the Oregon standards attachers filed comments supporting of fixes to these perceived problems before adopting them as national retention of the sign and sue rule in its with the sign and sue rule. One standards? If so, in what ways? Should present form. The attachers assert that, commenter urged the Commission to there be a threshold number of because utilities have inherently adopt a presumption that an executed unauthorized attachments necessary superior bargaining power in pole attachment agreement is just and before penalties apply? Should negotiating pole attachment agreements, reasonable. Similarly, another exceptions be made for violations attachers may be forced to accept commenter asked the Commission to caused or contributed to by the pole unreasonable rates, terms, and make explicit that both parties to a pole owner (e.g., a utility that assumes conditions in order to gain the prompt attachment agreement are subject to a ownership of a pole formerly owned by access to poles that is vital to their duty to negotiate in good faith, and bar

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complaints as to the reasonableness of 69. It is important to note, however, 72. Finally, the Commission asks for executed pole attachment agreements, that section 224 does not grant attachers comment on when an attacher’s cause of absent extrinsic evidence of coercion or an unfettered right to ‘‘cherry pick’’ action challenging a rate, term, or undue influence as would be sufficient contractual terms they wish to disavow, condition in a pole attachment to make the agreement void or voidable while retaining the benefits of more agreement accrues for purposes of under the common law. Another utility favorable terms. An attacher is entitled applying the appropriate statute of asked the Commission to require that to relief under the sign and sue rule limitations. The Commission proposes any challenges to pole attachment only if it can show that a rate, term, or that the cause of action be deemed to agreements be brought in State court condition is unlawful under section accrue at the time the challenged under well-defined State law standards 224, not merely unfavorable to the contract provision is first applied of unconscionability. attacher. Further, the Commission has against the attacher in an unlawful 67. The Commission adopted the sign recognized that in some circumstances, manner—regardless of whether the and sue rule in recognition that utilities a utility ‘‘may give a valuable concession provision is facially invalid—because have monopoly power over pole access. in exchange for the provision the that is the point in time when the The Commission was concerned that a attacher subsequently challenges as attacher suffers an injury. By contrast, if utility could nullify the statutory rights unreasonable.’’ Where such a quid pro the cause of action were instead deemed of a cable system or a quo is established, the Commission will to accrue at the time the agreement was telecommunications carrier by making not disturb the bargained-for package of executed, attachers might feel ‘‘take it or leave it demand[s]’’ that it provisions. compelled to bring a complaint relinquish valuable rights under section 70. As the Commission has previously challenging a contract provision that 224 ‘‘without any quid pro quo other stated, the Commission encourages, may never be applied against them, than the ability to attach its wires on supports and fully expects that mutually merely to avoid having their claims unreasonable or discriminatory terms.’’ beneficial exchanges will take place extinguished by the statute of The record does not demonstrate that between the utility and the attaching limitations. The Commission seeks the potential for utilities to exert such entity. The Commission wants to comment on this proposed rule of coercive pressure in pole attachment promote efforts by attachers and utilities accrual. Further, with respect to other agreement negotiations is less to negotiate innovative and mutually claims involving pole attachments, the significant today than when the beneficial solutions to contested Commission seeks comment on whether Commission first adopted the sign and contract issues. In furtherance of that the Commission should continue to sue rule. Because there remains a real goal, the Commission proposes that the follow common law principles in possibility that utilities may abuse their Commission amend § 1.1404(d) of the determining the time of accrual, or monopoly power during the negotiating rules to add a requirement that an adopt other, alternative approaches. process, the Commission proposes that attacher provide a utility with written the sign and sue rule should be retained C. Pole Rental Rates notice of objections to a provision in a in some form. For similar reasons, the 73. Telecommunications carriers and proposed pole attachment agreement, Commission proposes that the record cable operators generally pay for access during contract negotiations, as a does not support adoption of a to utility poles in two separate ways. prerequisite for later bringing a presumption that executed pole First, as noted above, attachers pay complaint challenging that provision. attachment agreements are just and nonrecurring charges to cover the costs reasonable. 71. Should the amended rule include of ‘‘make-ready’’ work—that is, 68. To be sure, utilities have raised an exception addressing attachers’ rearranging existing pole attachments or valid concerns about the need to ensure concerns that a given contract provision installing new poles as needed to enable that both parties to a pole attachment may not be unreasonable on its face, but the provider to attach to the pole. agreement negotiate in good faith. Their only become so through a utility’s later Second, attachers generally also pay an suggestion, however, that the interpretation or application? The annual pole rental fee, which currently Commission’s review of pole attachment Commission thus proposes to include is designed to recover a portion of the agreements be limited to determining language in amended § 1.1404(d) utility’s operating and capital costs whether the agreement would be allowing the attacher to challenge the attributable to the pole. Both of these deemed unconscionable or voidable lawfulness of a rate, term, or condition costs can impact communications under State contract law appears in an executed agreement, without prior service providers’ investment decisions. inconsistent with the Commission’s notice to the utility during contract In a prior section, this FNPRM seeks statutory mandate under section 224. negotiations, where the attacher comment on ways to reduce make-ready Section 224 grants cable systems and establishes that the rate, term, or costs. Below, the Commission seeks telecommunications carriers rights to condition was not unjust and comment on ways to minimize the pole access, and to reasonable rates, unreasonable on its face, but only as distortionary effects arising from the terms, and conditions for pole later applied by the utility, and the differences in current pole rental rates, attachment, that are independent and attacher could not reasonably have consistent with the objectives of the distinct from rights granted under anticipated that the utility would apply National Broadband Plan and the contract law. The Commission has a the challenged rate, term, or condition existing statutory framework. duty under section 224 to ‘‘adopt in such an unjust and unreasonable 74. By virtue of the 1996 Act procedures necessary and appropriate to manner. The Commission believes that revisions, section 224 of the Act now hear and resolve complaints concerning this amendment to § 1.1404(d) will sets forth two separate formulas to * * * rates, terms, and conditions’’ of prevent utilities from being blind-sided determine the maximum rates for pole pole attachment pursuant to the by an attacher’s post-execution attachments—one applies to pole requirements of section 224. The challenge to the lawfulness of contract attachments used by providers of Commission would not be fulfilling that provisions, and will encourage the telecommunications services (the duty if it were to substitute the parties to reach mutually acceptable telecom rate formula), and the other to requirements of contract law for the compromises on disputed terms, before pole attachments used ‘‘solely to provide dictates of section 224. the agreement is executed. cable service’’ (the cable rate formula).

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As the Commission has implemented doing so, a higher pole rental rate might reasons. The Commission believes that these statutory formulas, the telecom be applied for their entire network. pursuing uniformity by increasing cable rate formula generally results in higher 77. The record here likewise bears out operators’ pole rental rates—potentially pole rental rates than the cable rate these concerns. A number of cable up to the level yielded by the current formula. The difference between the two operators confirm that they have been telecom formula—would come at the formulas under current Commission deterred from offering new, advanced cost of increased broadband prices and rules is the manner in which they services, such as to anchor institutions reduced incentives for deployment. allocate the costs associated with the or wireless towers, based on the Instead, by seeking to limit the unusable portion of the pole—that is, possible financial impact if, as a result, distortions present in the current pole the space on the pole that cannot be they were required to pay the current rental rates by reinterpreting the used for attachments. The cable rate telecom rate for all their poles. The telecom rate to a lower level consistent formula and the telecom rate formula National Broadband Plan estimated an with the Act, the Commission expects to both allocate the costs of usable space average annual difference between the increase the availability of, and on a pole based on the fraction of the telecom rate and cable rate of competition for, advanced services to usable space that an attachment approximately $3 today. Although that anchor institutions and as middle-mile occupies. Under the cable rate formula, difference in rates might not seem inputs to wireless services and other the costs of unusable space on a pole are significant in isolation, it could amount broadband services. allocated in the same way, i.e., based on to approximately $90 million to $120 80. USTelecom and AT&T/Verizon the portion of usable space an million annually, given the estimated Broadband Rate Proposals. As an initial attachment occupies. Under the telecom 30–40 million poles subject to matter, the Commission seeks comment rate formula, however, two-thirds of the Commission-regulated rates used by the on two alternatives, filed after the costs of the unusable space is allocated cable industry. Cable commenters comment cycle closed in the Pole equally among the number of attachers, estimate an even greater difference Attachment Notice, to establish a including the owner, and the remaining between the two rates of $208 million to uniform rate for all pole attachments one third of these costs is allocated $672 million for the cable industry as a used to provide broadband Internet solely to the pole owner. whole. Moreover, the Commission access services, including those by 75. At the same time that the anticipated that rate differences could telecommunications carriers. As Commission adopted a rule deter cable operators from offering new described below, both the USTelecom implementing the telecom rate formula, services when it applied the cable rate and AT&T/Verizon proposals would it addressed the issues of cable to cable operators’ attachments used for allocate costs among attachers attachments used to offer commingled both video and Internet services, differently than they are allocated today cable and Internet access services. In concluding that: In specifying [the based on different assumptions about particular, the Commission held that cable] rate, the Commission intends to numbers of attachers and the space each cable television systems that offer encourage cable operators to make occupies on a pole. Presently, under the commingled cable and Internet access Internet services available to their cable rate formula, attachers (other than service should continue to pay the cable customers. The Commission believes a pole owner) pay an average of 7.4 rate. In 2000, the Supreme Court upheld that specifying a higher rate might deter percent of the annual costs of a pole. this decision, finding that section 224(b) an operator from providing non- Under the current telecom rate formula, gives the Commission authority to adopt traditional services. Such a result would each attacher (other than a pole owner), just and reasonable rates for attachments not serve the public interest. Rather, the pays an average of 11.2 percent of the within the general scope of section 224 Commission believes that specifying the annual costs of a pole in urban areas of the Act, but outside the ‘‘self- [cable rate] will encourage greater and 16.89 percent in non-urban areas. described scope’’ of the telecom rate competition in the provision of Internet Under USTelecom’s rate proposal, by formula or cable rate formula as service and greater benefits to contrast, any attacher (other than a pole specified under sections 224(d) and (e). consumers. owner) would pay 11 percent of the 76. Effects of Current Pole Rental 78. Previously, the Pole Attachment annual cost of a pole, regardless of the Rates. The National Broadband Plan Notice sought comment on, among other number of attachers or amount of space recommends that the Commission things, the difference in pole attachment each attacher uses. Under the AT&T/ ‘‘establish rental rates for pole rates paid by cable systems, incumbent Verizon proposal, it appears that each attachments that are as low and close to LECs, and competing attacher (other than the pole owner) uniform as possible, consistent with telecommunications carriers that would pay 18.67 percent of the annual [s]ection 224 of the [Act], to promote provide the same or similar services. costs of the pole. broadband deployment.’’ In particular, The Commission likewise recognized 81. Both rate proposals consist of the Plan observes that ‘‘[a]pplying ‘‘the importance of promoting formulas that are different from those different rates based on whether the broadband deployment and the prescribed in section 224 of the Act. attacher is classified as a ‘cable’ or a importance of technological neutrality,’’ USTelecom and AT&T/Verizon argue ‘telecommunications’ company distorts and thus ‘‘tentatively conclude[d] that that the Commission ‘‘is not limited to attachers’ deployment decisions.’’ There all categories of providers should pay the particular rate formulas have been many disputes about the the same pole attachment rate for all incorporating factors such as usable applicability of ‘‘cable’’ or attachments used for broadband Internet space set forth in [s]ection 224(d) and ‘‘telecommunications’’ rates to access service.’’ The Pole Attachment (e) for pole attachments of non- broadband, voice over Internet protocol Notice went on to tentatively conclude, incumbent telecommunications carriers and wireless services, among others. however, that ‘‘the [uniform] rate should and cable television systems.’’ Thus, The Plan found that ‘‘[t]his uncertainty be higher than the current cable rate, yet USTelecom asserts that the Commission may be deterring broadband providers no greater than the telecommunications ‘‘has broad authority, within the bounds that pay lower pole rates from extending rate.’’ of reasonableness, ‘to derive its own their networks or adding capabilities 79. The Commission declines to view of just and reasonable rates’ * * * (such as high-capacity links to wireless pursue the approach proposed by the regardless of conventional towers),’’ based on the risk that, by Pole Attachment Notice for several considerations such as usable space.’’

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The Commission seeks comment on this National Broadband Plan recognizes, construction and maintenance costs) view of the Commission’s authority. this disparity largely results from the and then fully allocate those costs based Although the Supreme Court has existing statutory framework, as on the cost-apportionment formulas confirmed that the Commission can rely implemented by the Commission. under Section 224(e)(2) and (3).’’ The on its general section 224(b) authority to Although the National Broadband Plan underlying economic or analytical ensure ‘‘just and reasonable rates’’ to recommended that Congress ‘‘consider theory for TWTC’s proposal is not regulate pole rental rates, under that amending [s]ection 224 of the Act to entirely clear, however. holding the Commission would appear establish a harmonized access policy for 87. To the extent that TWTC is to be bound by the statutory rate all poles, ducts, conduits and rights-of- arguing for ‘‘costs’’ to be defined as formulas within their ‘‘self-described way,’’ it also recommended that the marginal or incremental costs for scope.’’ To the extent that Congress Commission take what actions it can to purposes of section 224(e), the intended a particular rate formula to address these rate disparities within the Commission is skeptical of that theory. apply only when a provider was existing statutory framework. The Marginal cost can be defined either as exclusively providing a particular type Commission seeks comment below on the rate of change in total cost when of service, it clearly knew how to do so. alternatives for reinterpreting the output changes by an infinitesimal unit Thus, the statute provides that the telecom rate formula, the proposal based or as the change in total cost when section 224(d) cable rate formula applies in part on one of those alternatives, as output changes by a single unit. The to ‘‘any pole attachment used by a cable well as other alternative approaches to term incremental cost refers to a discrete television system solely to provide cable reinterpreting the telecom rate formula change in total cost when output service.’’ The section 224(e) telecom rate within the existing statutory framework. changes by any non-infinitesimal formula is not limited in this manner, 84. TWTC Proposal. TWTC submitted amount, which might range from a and thus the ‘‘self-described scope’’ of a proposal to revise the interpretation of single unit to a large increment that formula would seem to encompass the telecom rate formula to ‘‘eliminate or representing a firm’s entire output. The any attachments by telecommunications dramatically reduce the differential in Eleventh Circuit, in addressing a takings carriers so long as they are being used pole attachment rates.’’ The Commission challenge, has held that a pole to provide telecommunications sought comment on this proposal in the attachment rate above marginal cost can services—whether exclusively or in Pole Attachment Notice in the context provide just compensation, and combination with other services. of the somewhat different focus and marginal or incremental cost pricing can However, the Commission seeks proposals considered there. The be an appropriate approach to setting comment on whether alternative Commission revisits this proposal in regulated rates. Indeed, section 224(d) interpretations of the statute would be light of the pole rate recommendation of establishes such an approach as the low reasonable. Alternatively, is there a way the National Broadband Plan. In end of permissible rates under the cable in which the USTelecom or AT&T/ addition to the specific comment sought rate formula. However, the section Verizon proposals could be reconciled below, the Commission asks 224(e) formulas allocate the relevant with the pole rental rate formulas commenters to refresh the record costs in such a way that simply defining specified in sections 224(d) and (e) of regarding the questions raised about the ‘‘cost’’ as equal to incremental cost the Act? TWTC proposal in the Pole Attachment would result in pole rental rates below 82. The Commission also seeks Notice in the context of the issues under incremental cost. In particular, section comment on whether the USTelecom or consideration here. 224(e) allocates portions of the relevant AT&T/Verizon proposals are in the 85. Specifically, TWTC asserts that, ‘‘cost’’ to both the pole owner and the public interest. In particular, the despite the textual differences between attachers. Thus, if the Commission Commission notes that, under the section 224(d) and section 224(e) precisely calculated the relevant USTelecom proposal, the rates paid by regarding the costs to be included in the incremental costs, and then applied the telecom attachers generally would be cable rate formula and the telecom rate section 224(e) cost allocation formulas, lower than those rates are today, but the formula, ‘‘the FCC currently includes the the resulting pole rental rate would rates paid by cable attachers would be same cost categories in its implementing recover less than the utility’s higher. With respect to the AT&T/ regulations’’ reflected in the two incremental cost, effectively resulting in Verizon proposal, the Commission notes formulas. In particular, TWTC contends a subsidy to the attacher. In other that it appears that both that the telecom rate includes costs not words, the pole owner would bear more telecommunications carriers and cable mentioned in section 224(e), citing: (1) costs than if there were no third party operators generally would pay higher Rate of return; (2) depreciation; and (3) attachments on the pole at all. The pole rental rates than yielded by the taxes. TWTC alleges that such costs Commission thus believes that defining current telecom rate formula. While ‘‘bear no relation’’ to the cost of the ‘‘cost of providing space’’ as those outcomes would provide providing space for an attachment and incremental cost in the manner TWTC uniformity of rates, would they are not necessitated by the language of seems to suggest would be inconsistent undermine investment incentives or section 224(e). In particular, TWTC with the section 224(e) framework, otherwise increase the cost of or reduce contends that ‘‘none of these ‘costs’ has given the manner in which the statutory competition for communications anything to do with actually providing provision allocates the relevant ‘‘costs.’’ services? ‘space’ on a pole for pole attachments Nevertheless, the Commission seeks 83. Reinterpreting the Telecom Rate. because a utility would incur these costs comment on whether any party believes Rather than deviating from the statutory ‘regardless of the presence of pole that, to the contrary, such an telecom rate formula, the Commission attachments.’’’ Thus, TWTC proposes interpretation is permissible. seeks comment on ways to reinterpret that those costs should be eliminated 88. The Commission also seeks the section 224(e) telecom rate formula from the telecom rate. comment on whether there are other so as to yield pole rental rates that 86. TWTC suggests instead that rationales that, consistent with the reduce disputes and investment utilities should determine ‘‘how much existing statutory framework, could disincentives which can arise from the extra a utility must incur to provide support TWTC’s proposed approach, disparate rates yielded by the non-usable and usable space on poles possibly in a modified form. For Commission’s current rules. As the for pole attachments (in both example, what standard could the

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Commission use to determine whether comment on how well the proposal the resulting rates within that range particular costs ‘bear any relation’ to the ensures ‘‘just and reasonable’’ rates. In potentially could be adopted by the cost of providing space on a pole within particular, the Commission seeks Commission as the ‘‘just and reasonable’’ the meaning of TWTC’s proposal? To comment from pole owners, in addition rate for purposes of section 224(e). what extent would such an approach be to attachers and other interested 93. Upper Bound Rate. To begin consistent with the section 224 persons. The Commission notes that identifying the range of reasonable rates framework? As a practical matter, how pole owners’ perspective regarding the that could result from the telecom rate would the particular costs be calculated, costs and other characteristics of their formula, the Commission first identifies and what sources of data could be used infrastructure might give them unique the present telecom rate as a reasonable to implement TWTC’s proposal? In this insight into ways the Commission could upper bound. The Commission’s current regard, the Commission believes that the reinterpret the section 224(e) telecom telecom rate formula is based on a fully proposal below draws on some of the rate formula to yield pole rental rates distributed cost methodology, which underlying elements of TWTC’s ‘‘that are as low and close to uniform as recovers costs that the pole owner proposal, but is more consistent with possible, consistent with [s]ection 224 incurs regardless of the presence of the statutory framework and readily of the [Act], to promote broadband attachments. It includes a full range of administrable. However, the deployment.’’ costs, some of which, as TWTC argues, Commission also seeks comment on 91. In addition, sections 224(d) and do not directly relate to or vary with the other possible approaches as well, to the (e) specify cable and telecom rate presence of pole attachments. For this extent that they have advantages over formulas. As discussed above, the reason, this interpretation of the that proposal. Commission’s rate rules already take statutory telecom rate formula could be 89. Commission Rate Proposal. The account of one difference between those considered at the higher end of the Commission proposes an alternative frameworks—namely, the treatment of range of reasonable rates. In light of the approach which would recognize that unusable space. Other differences in National Broadband Plan’s the Commission has substantial—but those statutory provisions are not recommendation that the Commission not unlimited—discretion under the currently reflected in the Commission’s seeks to achieve pole rental rates ‘‘that statutory framework to interpret the rules, however. Although section 224(e) are as low and close to uniform as term ‘‘cost’’ for purposes of section specifies how the pole space costs are to possible, consistent with [s]ection 224 224(e). This proposal would view the be allocated between the owner and of the [Act],’’ under this alternative the range of possible interpretations of attacher, it does not specify a cost Commission ultimately would select a ‘‘cost’’ under section 224(e) as yielding a methodology. In particular, section rate closer to the lower end of the range. range of permissible rates, from the 224(e) describes how ‘‘[a] utility shall Thus, within the context of this current application of the telecom rate apportion the cost of providing space’’ alternative, the Commission does not formula at the higher end of the range, on a pole—whether usable or believe it is necessary to define the high to an alternative application of the unusable—but does not define ‘‘the cost end of the range more precisely, telecom rate formula based on cost of providing space.’’ This is in contrast although the Commission seeks causation principles at the lower end. with the upper bound for the cable rate comment on that conclusion. The Under this approach, the Commission under section 224(d), which does Commission also seeks comment on would select a particular rate from identify particular costs to be included. whether there is a cost methodology, within that range as the appropriate The Commission initially implemented other than a fully-distributed cost telecom rate. section 224(e) by interpreting ‘‘cost’’ to methodology, that could be considered 90. Interpretation of the Statutory include the same cost categories that it as part of an upper-bound formula in Framework. The existing statutory was using in the cable rate formula, addition, or instead. framework consists of several key relying on a fully-distributed cost 94. Lower Bound Rate. In identifying provisions, and any revised telecom rate approach. This initial approach was not the lower bound of reasonable rates formula must be consistent with those inherently unreasonable, as noted under section 224(e), the Commission provisions. For one, section 224(b) above, but it has resulted in rate proposes that a rate that covers the pole imposes an over-arching duty that the disparities and disputes over which owners’ incremental cost associated Commission ensure that rates are ‘‘just formula applies and impacted with attachment would, in principle, and reasonable.’’ As the Commission has communications service providers’ provide a reasonable lower limit. For recognized, ‘‘[r]ather than insisting upon investment decisions. the reasons described above in the a single regulatory method for 92. This statutory framework bounds context of TWTC’s proposal, however, determining whether rates are just and the ways in which the Commission can to remain consistent with the statutory reasonable, courts and other Federal interpret and apply the telecom rate framework, this outcome cannot be agencies with rate authority similar to formula in section 224(e). The achieved simply by defining costs as a the own evaluate whether an Commission agrees with commenters precise calculation of incremental cost. established regulatory scheme produces that the Commission has discretion to Thus, the statutory framework makes it rates that fall within a ‘‘zone of reinterpret the ambiguous term ‘‘cost’’ in more difficult to identify a lower-bound reasonableness.’’ For rates to fall within section 224(e) and modify the cost rate that recovers a utility’s marginal the zone of reasonableness, the agency methodology underlying the telecom costs. Instead, some definition of ‘‘costs’’ rate order must undertake a ‘reasonable rate formula to yield a different rate. somewhat above incremental cost balancing’ of the ‘investor interest in Depending upon the relative magnitude would need to be used so that when maintaining financial integrity and of costs included, the telecom rate those costs are allocated pursuant to the access to capital markets and the formula will yield relatively higher or 224(e) formula, the resulting pole rental consumer interest in being charged non- lower rates. Identifying the upper- and rate would allow the utility to recover exploitative rates.’ ’’ With respect to each lower-bound interpretations of ‘‘cost’’ the incremental cost associated with of the alternatives for interpreting the that are consistent with the statute thus attachment. telecom rate formula discussed below, provides an upper and lower limit on 95. For purposes of identifying such as well as any others raised by the possible telecom rates that would be a lower-bound rate, the Commission commenters, the Commission seeks consistent with section 224(e). Any of continues to rely on the basic principles

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of cost causation that would underlie a costs outside the make-ready context appropriate to develop average per pole marginal cost rate. Under cost causation solely to accommodate third party maintenance and administrative principles, if a customer is causally attachers, the Commission seeks expenses from ARMIS or FERC 1 data responsible for the incurrence of a cost, comment on the nature and extent of and to allocate these per pole expenses then that customer, the cost causer, pays those costs. For example, the Coalition between the owner and the attacher a rate that covers this cost. This is of Concerned Utilities argues that: (a) using the factors in section 224(e)? consistent with the Commission’s Communications attachers are Would such an approach over- or under- existing approach in the make-ready responsible for incremental capital costs allocate these expenses relative to the context where, for example, a pole for the extra space on taller poles; and amount actually caused by the attacher? owner recovers the entire capital cost of (b) those costs exceed the attachers’ The Commission notes that the a new pole through make-ready charges share of the capital costs for an entire Coalition of Concerned Utilities argues from the new attacher when a new pole pole that the attachers bear under the that the incremental operating costs for is needed to enable the attachment. fully distributed cost methodology attachments, which utilities contend are Under this proposed approach, cost reflected in the Commission’s existing caused by communications attachers, causation principles could be applied rate formulas. In particular, the exceed the attachers’ share of the separately to each category of a pole Coalition argues that utilities install operating costs for a pole that the owner’s costs—broadly consisting of taller poles routinely throughout their attachers bear under the fully capital and operating costs—for networks to satisfy their own needs and distributed cost methodology reflected purposes of the pole rental rate, as well. anticipated third-party attachment in the Commission’s existing rate 96. The Commission recognizes that, demand, and that they do not receive formulas. The Commission is skeptical under traditional ratemaking principles, sufficient compensation for this option. of this claim because the Commission rates may recover both operating For the reasons discussed above, the would expect that a significant portion expenses and capital costs, including a Commission questions how frequently of the pole-related maintenance and rate of return. Under the proposal, such situations would arise. The administrative expenses would be however, capital costs would be Commission nevertheless invites parties incurred for routine activities unrelated excluded for purposes of identifying a to submit studies that isolate and to the number of attachments. The lower bound for the telecom pole rental quantify the effect of third-party Commission nevertheless invites parties rate. As an initial matter, the attachment demand on pole height and to submit studies that isolate and Commission notes that if capital costs therefore pole investment. quantify the effect of third-party arise from the make-ready process, the 98. In addition, under the proposal, attachment demand on operating existing rules are designed to require taxes would be treated as part of the expenses. attachers to bear the entire amount of capital costs that are excluded from the 100. The Commission seeks comment those costs. With respect to other capital lower-bound telecom rate, based on on alternative proposals for determining costs, the Commission believes it is cost-causation principles. The a lower bound telecom rate. For likely that the attacher is the ‘‘cost Commission seeks comment on the example, should the Commission causer’’ for, at most, a de minimis proposal to treat taxes as capital costs. instead require a more precise portion of these costs. It is likely that The Commission also seeks comment identification of the costs to be included most, if not all, of the past investment more generally regarding the availability under such an approach? If so, would in an existing pole would have been of space on poles today and in the this be consistent with Congress’ goal incurred regardless of the demand for future. that the Commission’s rate formulas be attachments other than the owner’s 99. By contrast, this approach would administrable? Commenters advocating attachments. As a result, under a cost continue to include certain operating such an approach should provide data causation theory, where there is space expenses—namely maintenance and calculating these costs consistent with available on a pole, an attacher would administrative expenses—in the their proposals, and identify how such be required to pay for none, or at most definition of ‘‘cost’’ for purposes of the data could be obtained for purposes of a de minimis portion, of the capital lower bound telecom rate formula. This implementing their recommended costs of that pole. Given Congress’ is generally consistent with cost alternative. intention that the Commission not causation principles because it is likely 101. Specific Rate Proposal. Having ‘‘embark upon a large-scale ratemaking that an attacher is causally responsible proposed upper- and lower-bound proceeding in each case brought before for some of the ongoing maintenance telecom rates, the Commission it, or by general order’’ to establish pole and administrative expenses relating to considers the particular rate within that rental rates, this alternative would use of the pole. Although the attacher range that utilities may charge as the simply exclude capital costs from the might not be the cost causer with ‘‘just and reasonable’’ telecom rate. The pole rental rate rather than perform a respect to all the operating costs that Commission notes that it appears likely detailed cost analysis to identify the would be included in the lower bound that, in most cases, the rates yielded by likely de minimis, if any, capital costs telecom rate under this approach, as the current cable rate formula would fall to include in the lower bound telecom noted above, Congress’ intention was within that range. The Commission rate. This is consistent with TWTC’s that the Commission not ‘‘embark upon seeks comment on whether these argument, discussed above, that section a large-scale ratemaking proceeding in findings hold for pole attachments more 224(e) does not require the inclusion of each case brought before it, or by generally. How likely is it that the cable these costs. general order’’ to establish pole rental rate will be higher than the telecom rate 97. The Commission seeks comment rates, which the Commission believes calculated using only maintenance and on whether the exclusion of capital counsels in favor of including the costs administrative expenses? costs from the lower bound telecom rate in the context of maintenance and 102. In particular, under this under this approach is consistent both administrative expenses. The proposal, utilities would calculate the with principles of cost causation and Commission seeks comment on the low-end telecom rate and the rate the existing section 224 framework. To reasonableness of including these yielded by the current cable formula, the extent that pole owners contend that operating costs, as well as the and charge whichever is higher. they do, in fact, incur significant capital mechanics of such an approach. Is it Significantly, the cable rate formula has

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been upheld by the courts as just, 104. Incumbent LEC Rate Issues. As providers are necessary or helpful to reasonable, and fully compensatory, and part of their proposals discussed above, promote broadband deployment in would result in greater rate parity AT&T/Verizon and USTelecom assert unserved or underserved areas of the between telecommunications and cable that incumbent LECs should be subject country? attachers. This approach would seem to to the just and reasonable rates 106. The Commission also seeks further goals of the Act—to promote provision in section 224(b) in the same comment on the relationship between communications competition and the manner as it applies to other providers. the pole rental rates paid by incumbent deployment of ‘‘advanced The issues related to incumbent LEC LECs and any other rights and telecommunications capability.’’ attachment rates, however, raise responsibilities they have by virtue of Moreover, as commenters point out, to complex questions, and although the their pole access agreements with the extent that attachers are, to the National Broadband Plan noted the utilities. For instance, incumbent LECs greatest extent possible, paying the same possible effects of these rate disparities, generally asserted in response to the rates, this should minimize disputes the Plan did not include a Pole Attachment Notice that they that have resulted from the recommendation specifically addressing presently are forced to pay rates for pole Commission’s current rate formulas. this matter. As with the TWTC proposal attachments that are unreasonably This proposed alternative also appears discussed above, the Commission higher than those available to other to be readily administrable, consistent sought comment on the possibility of attachers and that they need the with Congress’ instruction to develop a regulating the rates incumbent LECs pay protection of just and reasonable rates regulatory framework that may be for attachments in the Pole Attachment under section 224 to preclude being applied in a ‘‘simple and expeditious’’ Notice in the context of the issues under placed at a competitive disadvantage. manner with ‘‘a minimum of staff, consideration there. In contrast to the Unlike other attachers, however, paperwork and procedures consistent rate regulation proposals discussed incumbent LECs generally attach to with fair and efficient regulation.’’ The above, the Commission does not poles pursuant to joint use or joint Commission seeks comment on whether propose specific rules in this FNPRM ownership agreements. These this proposal is consistent with other that would alter the Commission’s arrangements between incumbent LECs Commission policies, as well as whether current approach to the regulation of and electric companies historically it is consistent with the statutory pole attachments by incumbent LECs. provide more favorable terms and mandate of section 224 to ensure ‘‘just Rather, given the statutory and policy conditions to attaching incumbent LECs and reasonable’’ pole rental rates, complexities, the Commission revisits than competitive LECs and cable consistent with the statutory formulas. the issue of regulation of rates paid by operators receive from electric companies under license agreements. 103. Other Alternatives and incumbent LEC attachers both in light of the specific telecom rate proposals, as Electric utilities, cable operators, and Overarching Considerations. In addition competitive LECs thus argue that to the specific alternatives for well as the factual findings of the National Broadband Plan. In addition to incumbent LECs have negotiated terms reinterpreting the telecom rate formula and conditions that give them discussed above, the Commission seeks the questions below, commenters should refresh the record regarding the advantages over cable operators and comment on any other possible competitive LECs and, therefore, approaches, including any approaches questions raised regarding regulation of rates paid by incumbent LECs in the reducing attachment rates for incumbent used by states that regulate pole LECs or allowing them to pay the same Pole Attachment Notice in the context attachments that commenters would rate would provide them with an unfair of the issues under consideration here. recommend. For the approaches to competitive advantage. The Commission reinterpreting the telecom rate formula 105. As an initial matter, the seeks further comment on how to discussed above, or other approaches Commission seeks comment on the reconcile these assessments and how identified by commenters, the relationship between incumbent LEC the Commission should best pursue Commission seeks comment on whether pole attachments rates and deployment competitively neutral policies in these the proposal would be consistent with of broadband networks and affordability circumstances. the Commission’s obligations under the of broadband services. USTelecom 107. To the extent that section Act and whether it would further the asserts that pole attachment rates ‘‘can 224(b)’s ‘‘just and reasonable’’ rate public interest. How administrable is disproportionately affect the cost of regulation could apply to attachments the proposed approach? To what extent delivering broadband in [rural] areas by incumbent LECs, how would those would the proposed telecom rate be because the typically longer loops in rates be regulated to ensure that they are compensatory, and, when considered in rural areas often require more pole ‘‘just and reasonable,’’ and how might conjunction with other revenues earned attachments per end user.’’ Windstream, they affect joint use or joint ownership by the utility, would it both lead to for example, argues that ‘‘[g]iven the agreements? Should the rate be the same adequate cost recovery and protect importance of pole attachments in as other attachers pay, notwithstanding against double-recovery? Is the deploying advanced networks to rural the possible differences in pole access proposed approach consistent with the consumers, any Commission action that and utilization, as discussed above? Commission’s current rules governing reduces excessive pole attachment rates And how should any approach be make-ready charges—the other way in would promote, rather than stifle, a implemented? For instance, AT&T which attachers compensate pole competitive marketplace for advanced argues that, if incumbent LECs are owners for access to poles today? If not, communications networks,’’ including entitled to attachments at regulated ‘‘just how would the Commission’s approach broadband. Windstream thus urges the and reasonable’’ rates under section 224, to make-ready payments need to be Commission to extend a lower uniform any rate assessed by an electric modified? Would it be possible for the attachment rate that it may adopt to company in excess of the statutory Commission to forbear from applying incumbent LECs because it relies maximum rate should be unenforceable the section 224(e) telecom rate, and heavily on pole attachments to deploy ‘‘because it would, by definition, be adopt a different rate—such as the cable broadband service to rural consumers. unjust and unreasonable’’ even if rate—pursuant to section 224(b), as Do commenters agree that uniform rates contained in an existing joint use some commenters have suggested? between incumbent LECs and other agreement.

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108. NCTA proposes an alternative Procedural Matters (FNPRM). Written public comments are requested on this IRFA. Comments must plan whereby any attaching entity, A. Paperwork Reduction Act Analysis including incumbent LECs, would be be identified as responses to the IRFA permitted to ‘‘opt in’’ to existing pole 110. This document contains new and must be filed by the deadlines for agreements. Under this proposal, each information collection requirements comments on the FNPRM provided on pole owner would make each pole subject to the Paperwork Reduction Act the first page of the FNPRM. The attachment, joint ownership, or joint use of 1995 (PRA), Public Law 104–13. It Commission will send a copy of the agreement publicly available, and will be submitted to the Office of FNPRM, including this IRFA, to the attachers could opt in to those Management and Budget (OMB) for Chief Counsel for Advocacy of the Small review under section 3507(d) of the agreements, accepting all the terms and Business Administration (SBA). In PRA. OMB, the general public, and conditions of the agreement. NCTA addition, the FNPRM and IRFA (or other Federal agencies are invited to presumes ‘‘that pole owners will not be summaries thereof) will be published in comment on the new or modified the Federal Register. harmed by allowing third parties to information collection requirements attach to their poles at rates, terms, and adopted in this Order. 1. Need for, and Objectives of, the conditions that the pole owner already Proposed Rules has made available to at least one other B. Regulatory Flexibility Analysis 114. The FNPRM seeks comment on attaching party in its service area.’’ 111. As required by the Regulatory a variety of issues relating to NCTA anticipates that ‘‘many ILECs may Flexibility Act of 1980, as amended, the implementation of section 224 pole be reluctant to give up the favorable Commission has prepared an Initial attachment rules in light of increasing attachment rights that they typically Regulatory Flexibility Analysis (IRFA) intermodal competition since the possess under most joint use for this further notice of proposed Commission began to implement the agreements,’’ but provides them an rulemaking, of the possible significant 1996 Act. Specifically, the FNPRM alternative in cases where they believe economic impact on a substantial seeks comment on the adoption of a a pole owner’s rates are unreasonable. number of small entities by the policies specific timeline regarding the pole The Commission seeks input on the and rules proposed in this further notice attachment request, survey, and make- viability of these approaches, or other of proposed rulemaking. The IRFA is in ready time period in order to provide possible approaches. Could a remedy Appendix C. Written public comments greater certainty for the timely providing the ability for incumbent are requested on this IRFA. Comments deployment of telecommunications, LECs unilaterally to opt out of joint use must be identified as responses to the cable, and broadband services. or joint ownership agreements in certain IRFA and must be filed by the deadlines Additionally, the FNPRM seeks circumstances affect more than rate for comments on the further notice of comment on the adoption of several issues, such as safety and emergency proposed rulemaking. The Commission proposals regarding the ability of new response obligations, or negate other will send a copy of the notice of attachers to use contractors to perform benefits that other utilities realize proposed rulemaking, including this pole attachment make-ready work. The through joint use agreements? To what IRFA, to the Chief Counsel for Advocacy FNPRM also proposes improvements to of the SBA. In addition, the notice of the existing enforcement process. extent would any approach be readily proposed rulemaking and IRFA (or Finally, the FNPRM seeks comment on administrable? summaries thereof) will be published in existing rules governing pole attachment 109. In addition to requesting the the Federal Register. rates for telecommunications carriers right to pay a uniform rate for pole and incumbent local exchange carriers C. Ex Parte Presentations attachments, incumbent LECs also (LECs) in pursuit of a low, generally assert that they should have 112. This proceeding shall be treated compensatory rate that will improve ‘‘the same right as competitive LECs, as a ‘‘permit-but-disclose’’ proceeding in incentives for network deployment. wireless providers, and cable television accordance with the Commission’s ex 2. Legal Basis systems to file complaints before the parte rules. Persons making oral ex parte Commission to enforce their right to presentations are reminded that 115. The legal basis for any action that reasonable pole attachment rates, terms, memoranda summarizing the may be taken pursuant to the FNPRM is and conditions for poles in which they presentations must contain summaries contained in sections 1, 4(i), 4(j), 224, lack an ownership interest.’’ Some of the substance of the presentations 251(b)(4), and 303 of the incumbent LECs assert they are left and not merely a listing of the subjects Communications Act of 1934, as without any or sufficient recourse if discussed. More than a one or two amended, 47 U.S.C. 151, 154(i)–(j), 224, electric utilities impose unreasonable sentence description of the views and 251(b)(4), 303. arguments presented is generally rates, terms, and conditions and that 3. Description and Estimate of the required. Other requirements pertaining this conflicts with the Commission’s Number of Small Entities to Which the to oral and written presentations are set goals of promoting competition and Proposed Rules May Apply forth in § 1.1206(b) of the Commission’s broadband deployment. Electric utilities rules. 116. The RFA directs agencies to argue that incumbent LECs may seek provide a description of, and where recourse at the State level if they believe D. Initial Regulatory Flexibility Analysis feasible, an estimate of the number of rates are unreasonable. The Commission 113. As required by the Regulatory small entities that may be affected by seeks comment on what remedies Flexibility Act of 1980, as amended the proposed rules and policies, if incumbent LECs presently have to (RFA), the Commission has prepared adopted. The RFA generally defines the challenge any rates, terms, and this present Initial Regulatory term ‘‘small entity’’ as having the same conditions for pole attachments. Are Flexibility Analysis (IRFA) of the meaning as the terms ‘‘small business,’’ those remedies sufficient? How, if at all, possible significant economic impact on ‘‘small organization,’’ and ‘‘small would the ability to file complaints with a substantial number of small entities by governmental jurisdiction.’’ In addition, the Commission affect any State or local the policies and rules proposed in this the term ‘‘small business’’ has the same laws governing dispute resolution? Further Notice of Proposed Rulemaking meaning as the term ‘‘small business

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concern’’ under the Small Business Act. reported that they are engaged in the address the satellite industry. The first A ‘‘small business concern’’ is one provision of incumbent local exchange category has a small business size which: (1) Is independently owned and services. Of these 1,311 carriers, an standard of $15 million or less in operated; (2) is not dominant in its field estimated 1,024 have 1,500 or fewer average annual receipts, under SBA of operation; and (3) satisfies any employees and 287 have more than rules. The second has a size standard of additional criteria established by the 1,500 employees. Consequently, the $25 million or less in annual receipts. SBA. Commission estimates that most The most current Census Bureau data in 117. Small Businesses. Nationwide, providers of incumbent local exchange this context, however, are from the (last) there are a total of approximately 29.6 service are small businesses that may be economic census of 2002, and the million small businesses, according to affected by the proposed action. Commission will use those figures to the SBA. 122. Competitive Local Exchange gauge the prevalence of small 118. Small Organizations. Carriers (‘‘CLECs’’), Competitive Access businesses in these categories. Nationwide, as of 2002, there are Providers (‘‘CAPs’’), ‘‘Shared-Tenant 125. The category of Satellite approximately 1.6 million small Service Providers,’’ and ‘‘Other Local Telecommunications ‘‘comprises organizations. A ‘‘small organization’’ is Service Providers.’’ Neither the establishments primarily engaged in generally ‘‘any not-for-profit enterprise Commission nor the SBA has developed providing telecommunications services which is independently owned and a small business size standard to other establishments in the operated and is not dominant in its specifically for these service providers. telecommunications and broadcasting field.’’ The appropriate size standard under industries by forwarding and receiving 119. Small Governmental SBA rules is for the category Wired communications signals via a system of Jurisdictions. The term ‘‘small Telecommunications Carriers. Under satellites or reselling satellite governmental jurisdiction’’ is defined that size standard, such a business is telecommunications.’’ For this category, generally as ‘‘governments of cities, small if it has 1,500 or fewer employees. Census Bureau data for 2002 show that towns, townships, villages, school According to Commission data, 1005 there were a total of 371 firms that districts, or special districts, with a carriers have reported that they are operated for the entire year. Of this population of less than fifty thousand.’’ engaged in the provision of either total, 307 firms had annual receipts of Census Bureau data for 2002 indicate competitive access provider services or under $10 million, and 26 firms had that there were 87,525 local competitive local exchange carrier receipts of $10 million to $24,999,999. governmental jurisdictions in the services. Of these 1005 carriers, an Consequently, the Commission United States. The Commission estimated 918 have 1,500 or fewer estimates that the majority of Satellite estimates that, of this total, 84,377 employees and 87 have more than 1,500 Telecommunications firms are small entities were ‘‘small governmental employees. In addition, 16 carriers have entities that might be affected by the jurisdictions.’’ Thus, the Commission reported that they are ‘‘Shared-Tenant action. estimates that most governmental Service Providers,’’ and all 16 are 126. The second category of All Other jurisdictions are small. estimated to have 1,500 or fewer Telecommunications comprises, inter 120. The Commission has included employees. In addition, 89 carriers have alia, ‘‘establishments primarily engaged small incumbent local exchange carriers reported that they are ‘‘Other Local in providing specialized in this present RFA analysis. As noted Service Providers.’’ Of the 89, all have telecommunications services, such as above, a ‘‘small business’’ under the RFA 1,500 or fewer employees. satellite tracking, communications is one that, inter alia, meets the Consequently, the Commission telemetry, and radar station operation. pertinent small business size standard estimates that most providers of This industry also includes (e.g., a telephone communications competitive local exchange service, establishments primarily engaged in business having 1,500 or fewer competitive access providers, ‘‘Shared- providing satellite terminal stations and employees), and ‘‘is not dominant in its Tenant Service Providers,’’ and ‘‘Other associated facilities connected with one field of operation.’’ The SBA’s Office of Local Service Providers’’ are small or more terrestrial systems and capable Advocacy contends that, for RFA entities that may be affected by the of transmitting telecommunications to, purposes, small incumbent local proposed action. and receiving telecommunications from, exchange carriers are not dominant in 123. Interexchange Carriers (‘‘IXCs’’). satellite systems.’’ For this category, their field of operation because any such Neither the Commission nor the SBA Census Bureau data for 2002 show that dominance is not ‘‘national’’ in scope. has developed a small business size there were a total of 332 firms that The Commission has therefore included standard specifically for providers of operated for the entire year. Of this small incumbent local exchange carriers interexchange services. The appropriate total, 303 firms had annual receipts of in this RFA analysis, although the size standard under SBA rules is for the under $10 million and 15 firms had Commission emphasizes that this RFA category Wired Telecommunications annual receipts of $10 million to action has no effect on Commission Carriers. Under that size standard, such $24,999,999. Consequently, the analyses and determinations in other, a business is small if it has 1,500 or Commission estimates that the majority non-RFA contexts. fewer employees. According to of All Other Telecommunications firms 121. Incumbent Local Exchange Commission data, 300 carriers have are small entities that might be affected Carriers (‘‘ILECs’’). Neither the reported that they are engaged in the by the action. Commission nor the SBA has developed provision of interexchange service. Of 127. Wireless Telecommunications a small business size standard these, an estimated 268 have 1,500 or Carriers (except Satellite). Since 2007, specifically for incumbent local fewer employees and 32 have more than the Census Bureau has placed wireless exchange services. The appropriate size 1,500 employees. Consequently, the firms within this new, broad, economic standard under SBA rules is for the Commission estimates that the majority census category. Prior to that time, such category Wired Telecommunications of IXCs are small entities that may be firms were within the now-superseded Carriers. Under that size standard, such affected by the proposed action. categories of ‘‘Paging’’ and ‘‘Cellular and a business is small if it has 1,500 or 124. Satellite Telecommunications Other Wireless Telecommunications.’’ fewer employees. According to and All Other Telecommunications. Under the present and prior categories, Commission data, 1,311 carriers have These two economic census categories the SBA has deemed a wireless business

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to be small if it has 1,500 or fewer status purchased 3,724 licenses. A third bidders won approximately 40 percent employees. Because Census Bureau data auction, consisting of 8,874 licenses in of the 1,479 licenses for Blocks D, E, and are not yet available for the new each of 175 EAs and 1,328 licenses in F. In 1999, the Commission reauctioned category, the Commission will estimate all but three of the 51 MEAs, was held 155 C, D, E, and F Block licenses; there small business prevalence using the in 2003. Seventy-seven bidders claiming were 113 small business winning prior categories and associated data. For small or very small business status won bidders. the category of Paging, data for 2002 2,093 licenses. 133. In 2001, the Commission show that there were 807 firms that 130. Currently, there are completed the auction of 422 C and F operated for the entire year. Of this approximately 74,000 Common Carrier Broadband PCS licenses in Auction 35. total, 804 firms had employment of 999 Paging licenses. According to the most Of the 35 winning bidders in this or fewer employees, and three firms had recent Trends in Telephone Service, 281 auction, 29 qualified as ‘‘small’’ or ‘‘very employment of 1,000 employees or carriers reported that they were engaged small’’ businesses. Subsequent events, more. For the category of Cellular and in the provision of ‘‘paging and concerning Auction 35, including Other Wireless Telecommunications, messaging’’ services. Of these, an judicial and agency determinations, data for 2002 show that there were 1,397 estimated 279 have 1,500 or fewer resulted in a total of 163 C and F Block firms that operated for the entire year. employees and two have more than licenses being available for grant. In Of this total, 1,378 firms had 1,500 employees. The Commission 2005, the Commission completed an employment of 999 or fewer employees, estimates that the majority of common auction of 188 C block licenses and 21 and 19 firms had employment of 1,000 carrier paging providers would qualify F block licenses in Auction 58. There employees or more. Thus, the as small entities under the SBA were 24 winning bidders for 217 Commission estimates that the majority definition. licenses. Of the 24 winning bidders, 16 of wireless firms are small. 131. Wireless Telephony. Wireless claimed small business status and won 128. Common Carrier Paging. As telephony includes cellular, personal 156 licenses. In 2007, the Commission noted, since 2007 the Census Bureau communications services, and completed an auction of 33 licenses in has placed paging providers within the specialized mobile radio telephony the A, C, and F Blocks in Auction 71. broad economic census category of carriers. As noted, the SBA has Of the 14 winning bidders, six were Wireless Telecommunications Carriers developed a small business size designated entities. In 2008, the (except Satellite). Prior to that time, standard for Wireless Commission completed an auction of 20 such firms were within the now- Telecommunications Carriers (except Broadband PCS licenses in the C, D, E superseded category of ‘‘Paging.’’ Under Satellite). Under the SBA small business and F block licenses in Auction 78. the present and prior categories, the size standard, a business is small if it 134. Advanced Wireless Services. In SBA has deemed a wireless business to has 1,500 or fewer employees. 2008, the Commission conducted the be small if it has 1,500 or fewer According to Trends in Telephone auction of Advanced Wireless Services employees. Because Census Bureau data Service data, 434 carriers reported that (‘‘AWS’’) licenses. This auction, which are not yet available for the new they were engaged in wireless as designated as Auction 78, offered 35 category, the Commission will estimate telephony. Of these, an estimated 222 licenses in the AWS 1710–1755 MHz small business prevalence using the have 1,500 or fewer employees and 212 and 2110–2155 MHz bands (‘‘AWS–1’’). prior category and associated data. The have more than 1,500 employees. The The AWS–1 licenses were licenses for data for 2002 show that there were 807 Commission has estimated that 222 of which there were no winning bids in firms that operated for the entire year. these are small under the SBA small Auction 66. That same year, the Of this total, 804 firms had employment business size standard. Commission completed Auction 78. A of 999 or fewer employees, and three 132. Broadband Personal bidder with attributed average annual firms had employment of 1,000 Communications Service. The gross revenues that exceeded $15 employees or more. Thus, the broadband personal communications million and did not exceed $40 million Commission estimates that the majority services (‘‘PCS’’) spectrum is divided for the preceding three years (‘‘small of paging firms are small. into six frequency blocks designated A business’’) received a 15 percent 129. In addition, in the Paging Second through F, and the Commission has held discount on its winning bid. A bidder Report and Order, the Commission auctions for each block. The with attributed average annual gross adopted a size standard for ‘‘small Commission has created a small revenues that did not exceed $15 businesses’’ for purposes of determining business size standard for Blocks C and million for the preceding three years their eligibility for special provisions F as an entity that has average gross (‘‘very small business’’) received a 25 such as bidding credits and installment revenues of less than $40 million in the percent discount on its winning bid. A payments. A small business is an entity three previous calendar years. For Block bidder that had combined total assets of that, together with its affiliates and F, an additional small business size less than $500 million and combined controlling principals, has average gross standard for ‘‘very small business’’ was gross revenues of less than $125 million revenues not exceeding $15 million for added and is defined as an entity that, in each of the last two years qualified the preceding three years. The SBA has together with its affiliates, has average for entrepreneur status. Four winning approved this definition. An initial gross revenues of not more than $15 bidders that identified themselves as auction of Metropolitan Economic Area million for the preceding three calendar very small businesses won 17 licenses. (‘‘MEA’’) licenses was conducted in the years. These small business size Three of the winning bidders that year 2000. Of the 2,499 licenses standards, in the context of broadband identified themselves as a small auctioned, 985 were sold. Fifty-seven PCS auctions, have been approved by business won five licenses. companies claiming small business the SBA. No small businesses within the Additionally, one other winning bidder status won 440 licenses. A subsequent SBA-approved small business size that qualified for entrepreneur status auction of MEA and Economic Area standards bid successfully for licenses won 2 licenses. (‘‘EA’’) licenses was held in the year in Blocks A and B. There were 90 135. Narrowband Personal 2001. Of the 15,514 licenses auctioned, winning bidders that qualified as small Communications Services. In 1994, the 5,323 were sold. One hundred thirty- entities in the Block C auctions. A total Commission conducted an auction for two companies claiming small business of 93 ‘‘small’’ and ‘‘very small’’ business Narrowband PCS licenses. A second

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auction was also conducted later in many PLMR licensees constitute small gross revenues of less than $40 million 1994. For purposes of the first two entities under this definition. The in the three previous calendar years. An Narrowband PCS auctions, ‘‘small Commission notes that PLMR licensees additional small business size standard businesses’’ were entities with average generally use the licensed facilities in for ‘‘very small business’’ was added as gross revenues for the prior three support of other business activities, and an entity that, together with its affiliates, calendar years of $40 million or less. therefore, it would also be helpful to has average gross revenues of not more Through these auctions, the assess PLMR licensees under the than $15 million for the preceding three Commission awarded a total of 41 standards applied to the particular calendar years. The SBA has approved licenses, 11 of which were obtained by industry subsector to which the licensee these small business size standards in four small businesses. To ensure belongs. the context of LMDS auctions. There meaningful participation by small 138. As of March 2010, there were were 93 winning bidders that qualified business entities in future auctions, the 424,162 PLMR licensees operating as small entities in the LMDS auctions. Commission adopted a two-tiered small 921,909 transmitters in the PLMR bands A total of 93 small and very small business size standard in the below 512 MHz. The Commission notes business bidders won approximately Narrowband PCS Second Report and that any entity engaged in a commercial 277 A Block licenses and 387 B Block Order. A ‘‘small business’’ is an entity activity is eligible to hold a PLMR licenses. In 1999, the Commission re- that, together with affiliates and license, and that any revised rules in auctioned 161 licenses; there were 32 controlling interests, has average gross this context could therefore potentially small and very small businesses revenues for the three preceding years of impact small entities covering a great winning that won 119 licenses. not more than $40 million. A ‘‘very variety of industries. 141. Rural Radiotelephone Service. small business’’ is an entity that, 139. Fixed Microwave Services. Fixed The Commission has not adopted a size together with affiliates and controlling microwave services include common standard for small businesses specific to interests, has average gross revenues for carrier, private operational-fixed, and the Rural Radiotelephone Service. A the three preceding years of not more broadcast auxiliary radio services. At significant subset of the Rural than $15 million. The SBA has present, there are approximately 22,015 Radiotelephone Service is the Basic approved these small business size common carrier fixed licensees and Exchange Telephone Radio System standards. A third auction was 61,670 private operational-fixed (‘‘BETRS’’). In the present context, the conducted in 2001. Here, five bidders licensees and broadcast auxiliary radio Commission will use the SBA’s small won 317 (Metropolitan Trading Areas licensees in the microwave services. business size standard applicable to and nationwide) licenses. Three of these The Commission has not created a size Wireless Telecommunications Carriers claimed status as a small or very small standard for a small business (except Satellite), i.e., an entity entity and won 311 licenses. specifically with respect to fixed employing no more than 1,500 persons. 136. Cellular Radiotelephone Service. microwave services. For purposes of There are approximately 1,000 licensees Auction 77 was held to resolve one this analysis, the Commission uses the in the Rural Radiotelephone Service, group of mutually exclusive SBA small business size standard for the and the Commission estimates that there applications for Cellular Radiotelephone category Wireless Telecommunications are 1,000 or fewer small entity licensees Service licenses for unserved areas in Carriers (except Satellite), which is in the Rural Radiotelephone Service that New Mexico. Bidding credits for 1,500 or fewer employees. The may be affected by the rules and designated entities were not available in Commission does not have data policies proposed herein. Auction 77. In 2008, the Commission specifying the number of these licensees 142. Broadband Radio Service and completed the closed auction of one that have no more than 1,500 Educational Broadband Service. unserved service area in the Cellular employees, and thus are unable at this Broadband Radio Service systems, Radiotelephone Service, designated as time to estimate with greater precision previously referred to as Multipoint Auction 77. Auction 77 concluded with the number of fixed microwave service Distribution Service (‘‘MDS’’) and one provisionally winning bid for the licensees that would qualify as small Multichannel Multipoint Distribution unserved area totaling $25,002. business concerns under the SBA’s Service (‘‘MMDS’’) systems, and 137. Private Land Mobile Radio small business size standard. ‘‘wireless cable,’’ transmit video (‘‘PLMR’’). PLMR systems serve an Consequently, the Commission programming to subscribers and provide essential role in a range of industrial, estimates that there are 22,015 or fewer two-way high speed data operations business, land transportation, and common carrier fixed licensees and using the microwave frequencies of the public safety activities. These radios are 61,670 or fewer private operational- Broadband Radio Service (‘‘BRS’’) and used by companies of all sizes operating fixed licensees and broadcast auxiliary Educational Broadband Service (‘‘EBS’’) in all U.S. business categories, and are radio licensees in the microwave (previously referred to as the often used in support of the licensee’s services that may be small and may be Instructional Television Fixed Service primary (non-telecommunications) affected by the rules and policies (‘‘ITFS’’)). In connection with the 1996 business operations. For the purpose of proposed herein. The Commission BRS auction, the Commission determining whether a licensee of a notes, however, that the common carrier established a small business size PLMR system is a small business as microwave fixed licensee category standard as an entity that had annual defined by the SBA, the Commission includes some large entities. average gross revenues of no more than uses the broad census category, Wireless 140. Local Multipoint Distribution $40 million in the previous three Telecommunications Carriers (except Service. Local Multipoint Distribution calendar years. The BRS auctions Satellite). This definition provides that Service (‘‘LMDS’’) is a fixed broadband resulted in 67 successful bidders a small entity is any such entity point-to-multipoint microwave service obtaining licensing opportunities for employing no more than 1,500 persons. that provides for two-way video 493 Basic Trading Areas (‘‘BTAs’’). Of The Commission does not require PLMR telecommunications. The auction of the the 67 auction winners, 61 met the licensees to disclose information about 986 LMDS licenses began and closed in definition of a small business. BRS also number of employees, so the 1998. The Commission established a includes licensees of stations authorized Commission does not have information small business size standard for LMDS prior to the auction. At this time, the that could be used to determine how licenses as an entity that has average Commission estimates that of the 61

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small business BRS auction winners, 48 category, which is: All such firms of 6,635 systems nationwide, 5,802 remain small business licensees. In having 1,500 or fewer employees. To systems have under 10,000 subscribers, addition to the 48 small businesses that gauge small business prevalence for and an additional 302 systems have hold BTA authorizations, there are these cable services the Commission 10,000–19,999 subscribers. Thus, under approximately 392 incumbent BRS must, however, use current census data this second size standard, most cable licensees that are considered small that are based on the previous category systems are small. entities. After adding the number of of Cable and Other Program Distribution 146. Cable System Operators. The small business auction licensees to the and its associated size standard; that Communications Act of 1934, as number of incumbent licensees not size standard was: All such firms having amended, also contains a size standard already counted, the Commission finds $13.5 million or less in annual receipts. for small cable system operators, which that there are currently approximately According to Census Bureau data for is ‘‘a cable operator that, directly or 440 BRS licensees that are defined as 2002, there were a total of 1,191 firms through an affiliate, serves in the small businesses under either the SBA in this previous category that operated aggregate fewer than 1 percent of all or the Commission’s rules. In 2009, the for the entire year. Of this total, 1,087 subscribers in the United States and is Commission conducted Auction 86, the firms had annual receipts of under $10 not affiliated with any entity or entities sale of 78 licenses in the BRS areas. The million, and 43 firms had receipts of whose gross annual revenues in the Commission offered three levels of $10 million or more but less than $25 aggregate exceed $250,000,000.’’ The bidding credits: (i) A bidder with million. Thus, the majority of these Commission has determined that an attributed average annual gross revenues firms can be considered small. operator serving fewer than 677,000 that exceed $15 million and do not 144. Cable Television Distribution subscribers shall be deemed a small exceed $40 million for the preceding Services. Since 2007, these services operator, if its annual revenues, when three years (small business) will receive have been defined within the broad combined with the total annual a 15 percent discount on its winning economic census category of Wired revenues of all its affiliates, do not bid; (ii) a bidder with attributed average Telecommunications Carriers; that exceed $250 million in the aggregate. annual gross revenues that exceed $3 category is defined as follows: ‘‘This Industry data indicate that, of 1,076 million and do not exceed $15 million industry comprises establishments cable operators nationwide, all but ten for the preceding three years (very small primarily engaged in operating and/or are small under this size standard. The business) will receive a 25 percent providing access to transmission Commission notes that the Commission discount on its winning bid; and (iii) a facilities and infrastructure that they neither requests nor collects information bidder with attributed average annual own and/or lease for the transmission of on whether cable system operators are gross revenues that do not exceed $3 voice, data, text, sound, and video using affiliated with entities whose gross million for the preceding three years wired telecommunications networks. annual revenues exceed $250 million, (entrepreneur) will receive a 35 percent Transmission facilities may be based on and therefore the Commission is unable discount on its winning bid. Auction 86 a single technology or a combination of to estimate more accurately the number ’’ concluded in 2009 with the sale of 61 technologies. The SBA has developed a of cable system operators that would licenses. Of the ten winning bidders, small business size standard for this qualify as small under this size two bidders that claimed small business category, which is: All such firms standard. 147. Open Video Systems. The open status won 4 licenses; one bidder that having 1,500 or fewer employees. To gauge small business prevalence for video system (‘‘OVS’’) framework was claimed very small business status won these cable services the Commission established in 1996, and is one of four three licenses; and two bidders that must, however, use current census data statutorily recognized options for the claimed entrepreneur status won six that are based on the previous category provision of video programming licenses. of Cable and Other Program Distribution services by local exchange carriers. The 143. In addition, the SBA’s Cable and its associated size standard; that OVS framework provides opportunities Television Distribution Services small size standard was: all such firms having for the distribution of video business size standard is applicable to $13.5 million or less in annual receipts. programming other than through cable EBS. There are presently 2,032 EBS According to Census Bureau data for systems. Because OVS operators provide licensees. All but 100 of these licenses 2002, there were a total of 1,191 firms subscription services, OVS falls within are held by educational institutions. in this previous category that operated the SBA small business size standard Educational institutions are included in for the entire year. Of this total, 1,087 covering cable services, which is ‘‘Wired this analysis as small entities. Thus, the firms had annual receipts of under $10 Telecommunications Carriers.’’ The SBA Commission estimates that at least 1,932 million, and 43 firms had receipts of has developed a small business size licensees are small businesses. Since $10 million or more but less than $25 standard for this category, which is: all 2007, Cable Television Distribution million. Thus, the majority of these such firms having 1,500 or fewer Services have been defined within the firms can be considered small. employees. To gauge small business broad economic census category of 145. Cable Companies and Systems. prevalence for such services the Wired Telecommunications Carriers; The Commission has also developed its Commission must, however, use current that category is defined as follows: ‘‘This own small business size standards, for census data that are based on the industry comprises establishments the purpose of cable rate regulation. previous category of Cable and Other primarily engaged in operating and/or Under the Commission’s rules, a ‘‘small Program Distribution and its associated providing access to transmission cable company’’ is one serving 400,000 size standard; that size standard was: all facilities and infrastructure that they or fewer subscribers, nationwide. such firms having $13.5 million or less own and/or lease for the transmission of Industry data indicate that, of 1,076 in annual receipts. According to Census voice, data, text, sound, and video using cable operators nationwide, all but Bureau data for 2002, there were a total wired telecommunications networks. eleven are small under this size of 1,191 firms in this previous category Transmission facilities may be based on standard. In addition, under the that operated for the entire year. Of this a single technology or a combination of Commission’s rules, a ‘‘small system’’ is total, 1,087 firms had annual receipts of technologies.’’ The SBA has developed a a cable system serving 15,000 or fewer under $10 million, and 43 firms had small business size standard for this subscribers. Industry data indicate that, receipts of $10 million or more but less

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than $25 million. Thus, the majority of $15 million for the preceding three systems that convey electric power cable firms can be considered small. In years; and an entrepreneur as an entity received from the generation facility or addition, the Commission notes that the with average annual gross revenues not the transmission system to the final Commission has certified some OVS exceeding $40 million for the preceding consumer.’’ This category includes operators, with some now providing three years. These definitions were Electric Power Distribution, service. Broadband service providers approved by the SBA. On January 27, Hydroelectric Power Generation, Fossil (‘‘BSPs’’) are currently the only 2004, the Commission completed an Fuel Power Generation, Nuclear Electric significant holders of OVS certifications auction of 214 MVDDS licenses Power Generation, and Other Electric or local OVS franchises. The (Auction No. 53). In this auction, ten Power Generation. The SBA has Commission does not have financial or winning bidders won a total of 192 developed a small business size employment information regarding the MVDDS licenses. Eight of the ten standard for firms in this category: ‘‘A entities authorized to provide OVS, winning bidders claimed small business firm is small if, including its affiliates, some of which may not yet be status and won 144 of the licenses. The it is primarily engaged in the generation, operational. Thus, again, at least some Commission also held an auction of transmission, and/or distribution of of the OVS operators may qualify as MVDDS licenses on December 7, 2005 electric energy for sale and its total small entities. (Auction 63). Of the three winning electric output for the preceding fiscal 148. Cable Television Relay Service. bidders who won 22 licenses, two year did not exceed 4 million megawatt This service includes transmitters winning bidders, winning 21 of the hours.’’ According to Census Bureau generally used to relay cable licenses, claimed small business status. data for 2002, there were 1,644 firms in programming within cable television 150. Internet Service Providers. The this category that operated for the entire system distribution systems. This cable 2007 Economic Census places these year. Census data do not track electric service is defined within the broad firms, whose services might include output and the Commission has not economic census category of Wired voice over Internet protocol (VoIP), in determined how many of these firms fit Telecommunications Carriers; that either of two categories, depending on the SBA size standard for small, with no category is defined as follows: ‘‘This whether the service is provided over the more than 4 million megawatt hours of industry comprises establishments provider’s own telecommunications electric output. Consequently, the primarily engaged in operating and/or connections (e.g. cable and DSL, ISPs), Commission estimates that 1,644 or providing access to transmission or over client-supplied fewer firms may be considered small facilities and infrastructure that they telecommunications connections (e.g. under the SBA small business size own and/or lease for the transmission of dial-up ISPs). The former are within the standard. voice, data, text, sound, and video using category of Wired Telecommunications 152. Natural Gas Distribution. This wired telecommunications networks. Carriers, which has an SBA small economic census category comprises: Transmission facilities may be based on business size standard of 1,500 or fewer ‘‘(1) establishments primarily engaged in a single technology or a combination of employees. The latter are within the operating gas distribution systems (e.g., technologies.’’ The SBA has developed a category of All Other mains, meters); (2) establishments small business size standard for this Telecommunications, which has a size known as gas marketers that buy gas category, which is: all such firms having standard of annual receipts of $25 from the well and sell it to a distribution 1,500 or fewer employees. To gauge million or less. The most current Census system; (3) establishments known as gas small business prevalence for cable Bureau data for all such firms, however, brokers or agents that arrange the sale of services the Commission must, are the 2002 data for the previous gas over gas distribution systems however, use current census data that census category called Internet Service operated by others; and (4) are based on the previous category of Providers. That category had a small establishments primarily engaged in Cable and Other Program Distribution business size standard of $21 million or transmitting and distributing gas to final and its associated size standard; that less in annual receipts, which was consumers.’’ The SBA has developed a size standard was: all such firms having revised in late 2005 to $23 million. The small business size standard for this $13.5 million or less in annual receipts. 2002 data show that there were 2,529 industry, which is: all such firms having According to Census Bureau data for such firms that operated for the entire 500 or fewer employees. According to 2002, there were a total of 1,191 firms year. Of those, 2,437 firms had annual Census Bureau data for 2002, there were in this previous category that operated receipts of under $10 million, and an 468 firms in this category that operated for the entire year. Of this total, 1,087 additional 47 firms had receipts of for the entire year. Of this total, 424 firms had annual receipts of under $10 between $10 million and $24,999,999. firms had employment of fewer than million, and 43 firms had receipts of Consequently, the Commission 500 employees, and 18 firms had $10 million or more but less than $25 estimates that the majority of ISP firms employment of 500 to 999 employees. million. Thus, the majority of these are small entities. Thus, the majority of firms in this firms can be considered small. 151. Electric Power Generation, category can be considered small. 149. Multichannel Video Distribution Transmission and Distribution. The 153. Water Supply and Irrigation and Data Service. MVDDS is a terrestrial Census Bureau defines this category as Systems. This economic census category fixed microwave service operating in follows: ‘‘This industry group comprises ‘‘comprises establishments primarily the 12.2–12.7 GHz band. The establishments primarily engaged in engaged in operating water treatment Commission adopted criteria for generating, transmitting, and/or plants and/or operating water supply defining three groups of small distributing electric power. systems.’’ The SBA has developed a businesses for purposes of determining Establishments in this industry group small business size standard for this their eligibility for special provisions may perform one or more of the industry, which is: All such firms such as bidding credits. It defined a very following activities: (1) Operate having $6.5 million or less in annual small business as an entity with average generation facilities that produce receipts. According to Census Bureau annual gross revenues not exceeding $3 electric energy; (2) operate transmission data for 2002, there were 3,830 firms in million for the preceding three years; a systems that convey the electricity from this category that operated for the entire small business as an entity with average the generation facility to the distribution year. Of this total, 3,757 firms had annual gross revenues not exceeding system; and (3) operate distribution annual sales of less than $5 million, and

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37 firms had sales of $5 million or more requirements for pole owners and potentially burden small pole owners. but less than $10 million. Thus, the attaching entities. For example, if the Further, the Commission does not have majority of firms in this category can be Commission were to adopt a uniform authority to regulate (and the proposed considered small. rate for all pole attachments used for rules, thus, do not apply to) small broadband Internet access service, utilities that are municipally or 4. Description of Projected Reporting, providers of such services might be cooperatively owned. Recordkeeping and Other Compliance required to record and report where 159. The Commission also proposes to Requirements such service is offered. Changes to modify its rules to ensure that its 154. Should the Commission adopt reporting, recordkeeping or other enforcement process is suited to the proposed regulations concerning compliance requirements could either resolving access-related complaints and access to poles, ducts, conduits, and be new (e.g., if telecommunications is fair to all parties. In particular, the rights-of-way, such action could result carriers begins to record or report where Commission proposes to remove the 30- in increased, reduced, or otherwise they offer broadband Internet access day requirement to file a complaint from altered reporting, recordkeeping or other service) or could reconfigure existing § 1.404(m), amend § 1.1410 to compliance requirements for pole requirements (e.g., if cable television enumerate the remedies available to an owners and attaching entities. In systems begin to record and report attacher and provide for compensatory particular, if the Commission adopts where they or their lessees offer damages, and amend § 1.404(d) to rules governing the timing of pole broadband Internet access service, but require an attacher to object in writing, attachment preparation (i.e., survey and cease to record and report where they or during contract negotiations, to make-ready), as opposed to resolution their lessees offer telecommunications provisions it considers unreasonable or on a case-specific complaint basis, services). If the Commission initiates discriminatory. These modifications aim reporting, recordkeeping or other regulation of the rates, terms, and to streamline the complaint process and compliance requirements could change. conditions of pole attachment by remove barriers to informal dispute Examples of specific topics where incumbent LECs, such regulation could resolution, and they should have recordkeeping, reporting, or compliance increase reporting, recordkeeping or minimal, if any, economic impact on requirements could change by virtue of other compliance requirements for pole small entities. Commission action include: (1) owners and incumbent LECs where 160. Finally, the Commission Searches and surveys of both poles and incumbent LECs attach to poles owned proposes to promote broadband conduits, including information by other utilities. deployment and competition by management; (2) performance of make- reinterpreting the section 224(e) telecom 5. Steps Taken To Minimize Significant ready work, including timeliness, safety, rate in a way that yields pole rental rates Economic Impact on Small Entities, and capacity, and the use of boxing and that are as low and close to uniform as Significant Alternatives Considered extension arms; and (3) the use of possible. The Commission considered qualified third-party contract workers. 157. The RFA requires an agency to requiring all categories of providers to 155. Should the Commission alter the describe any significant alternatives that pay a uniform rate that would have been enforcement process, such action could it has considered in reaching its higher than the cable rate but lower than result in increased, reduced, or proposed approach, which may include the telecom rate, but found that otherwise altered reporting, (among others) the following four pursuing uniformity by increasing cable recordkeeping, or other compliance alternatives: (1) The establishment of operators’ pole rental rates would come requirements for pole owners and differing compliance or reporting at the cost of increased broadband attaching entities. In particular, if the requirements or timetables that take into prices and reduced incentives for Commission eliminates the 30-day account the resources available to small deployment. The Commission also seeks requirement in rule 1.404(m), a cable entities; (2) the clarification, comment on alternative proposals that television operator or consolidation, or simplification of would establish a uniform rate for all telecommunications carrier would no compliance or reporting requirements pole attachments used to provide longer be required to file a complaint under the rule for small entities; (3) the broadband, and on whether the rates that it was denied access to a pole, duct, use of performance, rather than design, paid by incumbent LEC attachers should conduit or right-of-way despite a request standards; and (4) an exemption from also be subject to the ‘‘just and made pursuant to section 47 U.S.C. coverage of the rule, or any part thereof, reasonable’’ rates provision in section 224(f) within 30 days of the denial. If for small entities. 224(b). the Commission adopts a penalty regime 158. The Commission proposes to for unauthorized attachments similar to adopt a specific timeline and several 6. Federal Rules That May Duplicate, Oregon’s, pole owners might be required additional rules that provide a Overlap, or Conflict With the Proposed to notify occupiers of alleged violations, predictable, timely process for parties to Rules and to allow the occupiers an seek and obtain pole attachments, while 161. None. opportunity to correct violations or maintaining a utility’s interest in submit a plan for correction, before preserving safety, reliability, and sound Ordering Clauses pursuing relief under the Commission’s engineering. In the consideration of 162. Accordingly, It is ordered that rules. If the Commission modifies the these proposals, the Commission seeks pursuant to sections 1, 4(i), 4(j), 224, ‘‘sign and sue’’ rule, such action might comment on whether adjustments based 251(b)(4), and 303 of the require attachers to provide notice on the size of the utility to which the Communications Act of 1934, as during contact negotiations of terms timeline applies are warranted. For amended, 47 U.S.C. 151, 154(i)–(j), 224, they consider unreasonable or instance, the Commission asks whether 251(b)(4), 303, this Order and Further discriminatory. small utilities should negotiate all Notice of Proposed Rulemaking in WC 156. Should the Commission alter the timelines individually or have the Docket No. 07–245 is adopted. pole attachment rate structure, such option of adjusting the timeline based 163. It is further ordered that the action could result in increased, on the size of the attachment request, Commission’s Consumer and reduced, or otherwise altered reporting, and whether steps taken to improve the Governmental Affairs Bureau, Reference recordkeeping or other compliance availability of pole data could Information Center, shall send a copy of

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this further notice, including the Initial lack of capacity, safety, reliability or (4) A copy of the written request to Regulatory Flexibility Analysis, to the engineering standards. the utility for access to its poles, ducts, Chief Counsel for Advocacy of the Small * * * * * conduits or rights-of-way; and Business Administration. 5. Section 1.1404 is amended by (5) A copy of the utility’s response to the written request including all List of Subjects in 47 CFR Part 1 revising paragraphs (d) and (m) to read as follows: information given by the utility to Administrative practice and support its denial of access. A procedure, Cable television, § 1.1404 Complaint. complaint alleging improper denial of Communications common carriers, * * * * * access will not be dismissed if the Communications equipment, (d) The complaint shall be complainant is unable to obtain a Telecommunications, Telephone, accompanied by a copy of the pole utility’s written response, or if the Television. attachment agreement, if any, between utility denies the complainant any other Federal Communications Commission. the cable system operator or information needed to establish a prima Marlene H. Dortch, telecommunications carrier and the facie case. Secretary. utility. If the complainant contends that 6. Section 1.1409 is amended by a rate, term, or condition in an executed revising paragraph (e)(2) to read as Proposed Rules pole attachment agreement is unjust and follows: unreasonable, it shall attach to its For the reasons discussed in the § 1.1409 Commission consideration of the preamble, the Federal Communications complaint evidence documenting that complaint. the complainant provided written notice Commission proposes to amend 47 CFR * * * * * part 1 as follows: to the respondent, during negotiation of the agreement, that the complainant (e) * * * PART 1—PRACTICE AND considered the rate, term, or condition (2) With respect to attachments to PROCEDURE unjust and unreasonable, and the basis poles by any telecommunications carrier for that conclusion. Proof of such notice or cable operator providing Subpart J—Pole Attachment to the respondent shall be a prerequisite telecommunications services, the Procedures to filing a complaint challenging a rate, maximum just and reasonable rate shall term, or condition in an executed be the higher of: 1. The heading of Part 1, subpart J is (i) The rate yielded by § 1.1409(e)(1), amended to read as set forth above. agreement, except where the complainant establishes that the rate, or 2. The authority citation for part 1, (ii) The rate yielded by the following subpart J is added to read as follows: term, or condition was not unjust and unreasonable on its face, but only as formula: × Authority: 47 U.S.C. 224, 154(i). applied by the respondent, and it could Maximum Rate = Space Factor Net × 3. Section 1.1402 is amended by not reasonably have anticipated that the Cost of a Bare Pole [Carrying adding paragraph (o) to read as follows: challenged rate, term, or condition Charge Rate] would be applied or interpreted in such § 1.1402 Definitions. Where an unjust and unreasonable manner. If 2 Space Factor = [(Space Occupied) + [( ⁄3) * * * * * there is no present pole attachment × (o) The term authorized contractor (Unusable Space/No. of Attaching agreement, the complaint shall contain: Entities)]]/Pole Height means an independent contractor that is (1) A statement that the utility uses or * * * * * approved by a utility and is certified by controls poles, ducts, or conduits used 7. Section 1.1410 is revised to read as the utility to perform field surveys, or designated, in whole or in part, for follows: engineering analyses, or make-ready wire communication; and work, and includes any contractor that (2) A statement that the cable § 1.1410 Remedies. the utility itself employs to perform television system operator or (a) If the Commission determines that such work. telecommunications carrier currently the rate, term, or condition complained 4. Section 1.1403 is amended by has attachments on the poles, ducts, revising paragraph (b) to read as follows: of is not just and reasonable, it may conduits, or rights-of-way. prescribe a just and reasonable rate, § 1.1403 Duty to provide access; * * * * * term, or condition and may: modifications; notice of removal, increase (m) In a case where a cable television (1) Terminate the unjust and or modification; petition for temporary stay; system operator or telecommunications unreasonable rate, term, or condition; and cable operator notice. carrier claims that it has been denied (2) Substitute in the pole attachment * * * * * access to a pole, duct, conduit or right- agreement the just and reasonable rate, (b) Requests for access to a utility’s of-way despite a request made pursuant term, or condition established by the poles, ducts, conduits, or rights-of-way to section 47 U.S.C. 224(f), the Commission; by a telecommunications carrier or cable complaint, in addition to meeting the (3) Order a refund, or payment, if operator must be in writing. If access is other requirements of this section, shall appropriate. The refund or payment will not granted within 45 days of the include the data and information normally be the difference between the request for access, the utility must necessary to support the claim, amount paid under the unjust and/or explain the denial or grant of access including: unreasonable rate, term, or condition conditioned on performance of make- (1) The reasons given for the denial of and the amount that would have been ready in writing by the 45th day. The access to the utility’s poles, ducts, paid under the rate, term, or condition utility’s explanation shall be specific, conduits and rights-of-way; established by the Commission, plus shall include all relevant evidence and (2) The basis for the complainant’s interest, consistent with the applicable information supporting its decision and claim that the denial of access is statute of limitations; and shall explain how such evidence and improper; (4) Order an award of compensatory information relate to a denial or (3) The remedy sought by the damages, consistent with the applicable conditional grant of access for reasons of complainant; statute of limitations.

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(b) If the Commission determines that opportunity to use its own personnel to § 1.1420, a utility may direct and access to a pole, duct, conduit, or right- move its facilities. supervise an authorized contractor in of-way has been unlawfully denied or (3) Completion of all make-ready cooperation with the requesting entity. unreasonably delayed, it may: work and final payment by the (1) The attaching entity shall invite a (1) Order that access be permitted requesting entity shall complete the utility representative to accompany the within a specified time frame and in grant of requested access and all contractor and the utility representative accordance with specified rates, terms necessary authorization. may consult with the authorized and conditions; and (e) If make-ready work is not contractor and the entity requesting (2) Order an award of compensatory completed by any other attaching access. damages, consistent with the applicable entities as required by paragraph (d) of (2) The representative of a non- statute of limitations. this section, the utility or its agent shall incumbent LEC utility may make final 8. Add § 1.1420 to subpart J to read as complete all necessary make-ready determinations on a nondiscriminatory follows: work. basis that relate directly to insufficient (1) An incumbent local exchange capacity or the safety, reliability, and § 1.1420 Timeline for access to poles, carrier’s facilities may be rearranged or sound engineering of the infrastructure. ducts, conduits, and rights-of-way. replaced by the utility or its agents 45 10. Add § 1.1424 to subpart J to read (a) All time limits in this section are days after the notice required in as follows: to be calculated according to § 1.4. paragraph (d) of this section. (b) A request for access triggers a (2) A cable system operator’s or § 1.1424 Exclusion from work among the electric lines. requirement to perform the obligations telecommunications carrier’s remaining in § 1.1403(b) within 45 days, including facilities may be rearranged or replaced (a) Utilities may exclude non-utility a survey and engineering analysis used by the utility or its agents 60 days after personnel from working among the to support a utility’s decision. If the the notice required by paragraph (d) of electric lines on a utility pole, except utility fails to complete and deliver the this section. workers with specialized survey to the requesting entity within 45 (f) If make-ready work is not communications-equipment skills or days after the request, the requesting completed in the time specified in training that the utility cannot duplicate entity may use a contractor to complete paragraph (e)(2) of this section, the which are necessary to add or maintain the survey and engineering analysis. requesting entity may use a contractor to a pole attachment. The utility shall cooperate with the complete all necessary make-ready (b) Utilities shall permit workers with requesting entity in directing and work. For poles owned by an incumbent specialized skills or training concerning supervising the authorized contractor. LEC utility, the requesting entity shall communications equipment to work (1) For poles, ducts, conduits, and use a contractor that has at least the among the electric lines: rights-of-way owned by an incumbent same qualifications and training as the (1) In concert with the utility’s LEC utility, the requesting entity shall incumbent LEC’s own workers that workforce; and use a contractor that has at least the perform the same tasks. For poles (2) When the utility deems it safe. 11. Add § 1.1426 to subpart J to read same qualifications and training as the owned by a non-incumbent LEC utility, as follows: incumbent LEC’s own workers that the requesting entity shall use an perform the same tasks. authorized contractor. § 1.1426 Charges for access and make- (2) For poles, ducts, conduits, and (1) The utility shall cooperate with ready. rights-of-way owned by a non- the requesting entity in directing and (a) Utilities shall make available to incumbent LEC utility, the requesting supervising the contractor. attaching entities a schedule of common entity shall use an authorized (2) Upon completion of make-ready, make-ready charges. contractor. the requesting entity shall pay the (b) Payment for make-ready charges is (c) Within 14 days of providing a utility for any outstanding expenses due in the following increments: survey as required by § 1.1420(b), a charged by the utility for expenses (1) Payment of 50 percent of estimated utility shall tender an offer to perform incurred to complete the make-ready. charges requires the recipient utility to all necessary make-ready work, (3) Upon receipt of payment or begin make-ready performance. including an estimate of its charges. establishment that no further payment is (2) Payment of 25 percent of estimated (1) The requesting entity may accept due, the utility shall confirm that the charges is due 22 days after the first a valid offer and make an initial request for access is granted. payment. payment upon receipt, or until the offer (4) Once all make-ready work is (3) Payment of remaining make-ready is withdrawn. performed and the request for access is charges is due when access is granted. (2) The utility may withdraw an granted, the requesting entity may use 12. Add § 1.1428 to subpart J to read outstanding offer to perform make-ready any contractor to install its facilities that as follows: work after 14 days. has the same qualifications, in terms of (d) Upon receipt of payment, a utility training, as the utility’s own workers, § 1.1428 Administration of pole attachment shall notify immediately all attaching whether or not the contractor is requests. entities that may be affected by the authorized by the utility. (a) Where a pole is jointly owned by project, and shall specify the date after 9. Add § 1.1422 to subpart J to read as more than one utility: which the utility or its agents become follows: (1) The owners shall designate a entitled to move the facilities of the single owner to manage requests for attaching entity. § 1.1422 Contractors. pole attachment; and (1) The utility shall set a date for (a) Utilities shall make available: (2) Each owner shall make publicly completion of make-ready no later than (1) A list of authorized contractors; available the identity of the managing 45 days after the notice. and utility for its poles. (2) The utility shall direct and (2) Criteria and procedures for (b) Requesting entities shall not be coordinate the sequence and timing of becoming an authorized contractor. required to interact with an owner other rearrangement of facilities to afford each (b) If a contractor has been hired than the single managing pole owner. attaching entity a reasonable according to conditions specified in (c) The managing pole owner shall:

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(1) Collect from each existing attacher (2) Bill the new attacher for these (3) Disburse compensatory payment to a statement of any costs attributable to costs, plus any expenses the managing the existing attachers. rearrangement of the existing attacher’s pole owner incurs in its role as [FR Doc. 2010–17048 Filed 7–14–10; 8:45 am] facilities to accommodate a new clearinghouse; and BILLING CODE 6712–01–P attacher.

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Reader Aids Federal Register Vol. 75, No. 135 Thursday, July 15, 2010

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

Federal Register/Code of Federal Regulations At the end of each month, the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 2 CFR 39 ...... 37990, 37991, 37994, 37997, 38001, 38007, 38009, 902...... 39443 Executive orders and proclamations 741–6000 38011, 38014, 38017, 38019, 3186...... 39133 The United States Government Manual 741–6000 38394, 38397, 38404, 39143, Other Services 3 CFR 39787, 39790, 39795, 39798, Electronic and on-line services (voice) 741–6020 Proclamations: 39801, 39803, 39804, 39811, Privacy Act Compilation 741–6064 8539...... 38905 39814, 39818 Public Laws Update Service (numbers, dates, etc.) 741–6043 8540...... 38911 71 ...... 38406, 39145, 39146, 39147, 39148, 39149, 40719, TTY for the deaf-and-hard-of-hearing 741–6086 Executive Orders: 13546...... 39439 41074, 41075, 41076, 41077 95...... 40720 ELECTRONIC RESEARCH Administrative Orders: 97...... 39150, 39152 Memorandum of June 121...... 39629 World Wide Web 28, 2010 ...... 38387 Full text of the daily Federal Register, CFR and other publications Memorandum of June Proposed Rules: is located at: http://www.gpoaccess.gov/nara/index.html 30, 2010 ...... 38913 39 ...... 38052, 38056, 38058, 38061, 38064, 38066, 38941, Federal Register information and research tools, including Public 5 CFR 38943, 38945, 38947, 38950, Inspection List, indexes, and links to GPO Access are located at: 38953, 38956, 39185, 39189, http://www.archives.gov/federallregister Proposed Rules: 532...... 39460 39192, 39472, 39863, 39869, E-mail 40757, 41104 6 CFR 71...... 38753 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 91...... 39196 an open e-mail service that provides subscribers with a digital Proposed Rules: 5...... 39144 form of the Federal Register Table of Contents. The digital form 15 CFR of the Federal Register Table of Contents includes HTML and 7 CFR PDF links to the full text of each document. 742...... 41078 205...... 38693 774...... 41078 To join or leave, go to http://listserv.access.gpo.gov and select 301...... 41073 Proposed Rules: Online mailing list archives, FEDREGTOC-L, Join or leave the list 916...... 38696 922...... 40759 (or change settings); then follow the instructions. 917...... 38696 PENS (Public Law Electronic Notification Service) is an e-mail 948...... 38698 17 CFR service that notifies subscribers of recently enacted laws. 1455...... 39135 275...... 41018 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Proposed Rules: Proposed Rules: and select Join or leave the list (or change settings); then follow 1755...... 38042 242...... 39626 the instructions. 9 CFR 18 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot 102...... 40719 Proposed Rules: respond to specific inquiries. 103...... 40719 410...... 41106 Reference questions. Send questions and comments about the 104...... 40719 Federal Register system to: [email protected] 108...... 40719 20 CFR 112...... 40719 The Federal Register staff cannot interpret specific documents or 404...... 39154 113...... 40719 regulations. 416...... 39154 114...... 40719 418...... 41084 Reminders. Effective January 1, 2009, the Reminders, including 116...... 40719 Rules Going Into Effect and Comments Due Next Week, no longer 124...... 40719 21 CFR appear in the Reader Aids section of the Federal Register. This 522...... 38699 information can be found online at http://www.regulations.gov. 10 CFR 1310...... 38915 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 431...... 37975 longer appears in the Federal Register. This information can be 607...... 39443 23 CFR 1703...... 39629 found online at http://bookstore.gpo.gov/. 772...... 39820 Proposed Rules: 37...... 40756 24 CFR FEDERAL REGISTER PAGES AND DATE, JULY 430...... 41102 5...... 41087 37975–38390...... 1 431...... 41102, 41103 1023...... 38042 84...... 41087 38391–38692...... 2 85...... 41087 38693–38914...... 6 12 CFR Proposed Rules: 38915–39132...... 7 Proposed Rules: 3280...... 39871 39133–39442...... 8 615...... 39392 39443–39628...... 9 1237...... 39462 26 CFR 39629–39786...... 12 1777...... 39462 1...... 38700 39787–40718...... 13 53...... 38700 40719–41072...... 14 14 CFR 54...... 38700 41073–41364...... 15 25...... 38391 301...... 38700

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602...... 38700 98...... 39736 303...... 38612 3002...... 41097 180 ...... 38417, 39450, 39455, 305...... 38612 3007...... 41097 29 CFR 40729, 40736, 40741, 40745, 308...... 38612 3009...... 41097 4022...... 41091 40751 614...... 40754 3016...... 41097 Proposed Rules: 355...... 39852 1186...... 39133 3034...... 41097 1910...... 38646 370...... 39852 Proposed Rules: 3035...... 41097 1915...... 38646 Proposed Rules: 160...... 40868 3052...... 41097 1917...... 38646 2...... 39094 164...... 40868 Proposed Rules: 1918...... 38646 52 ...... 38757, 40760, 40762 901...... 38042 1926...... 38646 122...... 38068 47 CFR 902...... 38042 1928...... 38646 123...... 38068 64...... 39859 903...... 38042 141...... 40926 73...... 41092, 41093 904...... 38042 31 CFR 142...... 40926 Proposed Rules: 906...... 38042 Ch. V...... 38212 152...... 38958 1...... 38959, 41338 907...... 38042 257...... 41121 22...... 38959 908...... 38042 33 CFR 261...... 41121 24...... 38959 909...... 38042 100 ...... 38408, 38710, 39161, 264...... 41121 27...... 38959 911...... 38042 39445, 39448 265...... 41121 73...... 41123 914...... 38042 117 ...... 38411, 38412, 38712 268...... 41121 90...... 38959 915...... 38042 165 ...... 38019, 38021, 38412, 271...... 41121 101...... 38959 916...... 38042 38415, 38714, 38716, 38718, 302...... 41121 917...... 38042 38721, 38723, 38923, 38926, 403...... 38068 48 CFR 952...... 38042 39163, 39166, 39632, 39839, 501...... 38068 Ch. I...... 38674, 38691, 39414, 40726 503...... 38068 39420 Proposed Rules: 745...... 38959 2...... 38675, 38683 49 CFR 100...... 41119 4 ...... 38675, 38683, 38684, 39...... 38878 41 CFR 165...... 38754, 39197 39414 40...... 38422 Proposed Rules: 7...... 38683 213...... 41282 36 CFR 102-38...... 40763 10...... 38683 237...... 41282 7...... 39168 12...... 39414 387...... 38423 42 CFR 13...... 38683 Proposed Rules: 37 CFR 423...... 38026 15...... 38675 231...... 38432 Proposed Rules: 447...... 38748 18...... 38683 395...... 40765 386...... 39891 457...... 38748 19...... 38687 611...... 39492 Proposed Rules: 22...... 38689 38 CFR 405...... 40040 25...... 38689 50 CFR 3...... 39843, 41092 409...... 40040 26...... 38683 410...... 40040 31...... 38675 622...... 39638 39 CFR 411...... 40040 32...... 38675 648...... 38935, 39170 3050...... 38725 413...... 40040 42...... 38675, 39414 660...... 38030, 39178 3055...... 38725 414...... 40040 45...... 38675 679 ...... 38430, 38936, 38937, Proposed Rules: 415...... 40040 52 ...... 38675, 38683, 38684, 38938, 38939, 38940, 39183, 20...... 39475 424...... 40040 38689, 39414 39638, 39639, 39861 111...... 39477 488...... 39641 205...... 40714 Proposed Rules: 3050...... 39200 210...... 40714 16...... 38069 3055...... 38757 44 CFR 212...... 40712 17...... 38441 64...... 38749 216...... 40716 216...... 38070 40 CFR 232...... 40712 300...... 38758 52 ...... 38023, 38745, 39366, 45 CFR 252...... 40712, 40717 679 ...... 38452, 38454, 39892, 39633, 39635, 40726, 41312 301...... 38612 516...... 41093 41123 81...... 39635 302...... 38612 552...... 41093 680...... 39892

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pamphlet) form from the S.J. Res. 32/P.L. 111–201 listserv.gsa.gov/archives/ Superintendent of Documents, Recognizing the 60th publaws-l.html LIST OF PUBLIC LAWS U.S. Government Printing anniversary of the outbreak of Office, Washington, DC 20402 the Korean War and Note: This service is strictly This is a continuing list of (phone, 202–512–1808). The reaffirming the United States- for E-mail notification of new public bills from the current text will also be made Korea alliance. (July 7, 2010; laws. The text of laws is not session of Congress which available on the Internet from 124 Stat. 1371) have become Federal laws. It GPO Access at http:// available through this service. Last List July 7, 2010 may be used in conjunction www.gpoaccess.gov/plaws/ PENS cannot respond to with ‘‘P L U S’’ (Public Laws index.html. Some laws may specific inquiries sent to this Update Service) on 202–741– not yet be available. address. 6043. This list is also Public Laws Electronic S. 1660/P.L. 111–199 available online at http:// Notification Service Formaldehyde Standards for www.archives.gov/federal- (PENS) Composite Wood Products Act register/laws.html. (July 7, 2010; 124 Stat. 1359) The text of laws is not S. 2865/P.L. 111–200 PENS is a free electronic mail published in the Federal Congressional Award Program notification service of newly Register but may be ordered Reauthorization Act of 2009 enacted public laws. To in ‘‘slip law’’ (individual (July 7, 2010; 124 Stat. 1368) subscribe, go to http://

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