6–15–09 Monday Vol. 74 No. 113 June 15, 2009

Pages 28149–28438

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Contents Federal Register Vol. 74, No. 113

Monday, June 15, 2009

Agriculture Department Committee for Purchase From People Who Are Blind or See Animal and Plant Health Inspection Service Severely Disabled See Federal Crop Insurance Corporation NOTICES See Food and Nutrition Service Procurement List; Additions and Deletions, 28221–28222 See Food Safety and Inspection Service See Forest Service Defense Department See Navy Department Animal and Plant Health Inspection Service RULES NOTICES Federal Acquisition Regulation (FAR): Highly Pathogenic Avian Influenza Subtype H5N1 Status of FAR Case 2005–032, Contractor’s Request for Progress Hungary; Availability of an Evaluation, 28217–28218 Payments, 28430–28434 FAR Case 2008–036, Trade Agreements–Costa Rica, Oman, and Peru, 28426–28430 Antitrust Division Federal Acquisition Circular 2005–33; Introduction, NOTICES 28426 National Cooperative Research and Production Act (1993): Federal Acquisition Circular 2005–33; Small Entity ASTM International, 28278 Compliance Guide, 28434 Joint Venture to Preform Project Entitled Next Generation SCADA for Prevention and Mitigation of Water Department of Transportation System Infrastructure Disaster, 28278 See Pipeline and Hazardous Materials Safety Network Centric Operations Industry Consortium, Inc., Administration 28277–28278 Sensory System for Critical Infrastructure Defect Drug Enforcement Administration Recognition, Visualization and Failure Prediction, NOTICES 28277 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28274–28276 Blind or Severely Disabled, Committee for Purchase From People Who Are Education Department See Committee for Purchase From People Who Are Blind or NOTICES Severely Disabled Underground Railroad Educational and Cultural Program; Applications for New Awards (FY 2009), 28223–28227 Centers for Medicare & Medicaid Services NOTICES Employee Benefits Security Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 28249–28250 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28278–28279

Children and Families Administration Employment and Training Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Termination of Investigations: Submissions, and Approvals, 28248–28249 Albion Associates, Inc., High Point, NC, 28282 BAE Systems Controls, Inc., Irving, TX, 28281 Civil Rights Commission BCF Industries, Altavista, VA, 28282 NOTICES BG Labs, Subsidiary of Standex, Binghamton, NY, 28283 Meetings: Bracalente Manufacturing Company, Inc., Trumbaursville, Minnesota Advisory Committee, 28218–28219 PA, 28281 Broyhill Furniture, Inc., Broyhill Rutherfordton Coast Guard Distribution Center, Rutherfordton, NC, 28280 RULES Carpenter Co., Cookeville, TN, 28282 Safety Zones: Castec, Inc., North Hollywood, CA, 28280 Chicago Harbor, Navy Pier Southeast, Chicago, IL, 28165– Caye Upholstery, Amory, MS, 28280 28166 Commercial Vehicle Group/Trim Systems, Dublin, VA, Marinette Marine Vessel Launch, Marinette, WI, 28163– 28283 28165 Cox Manufacturing Company Inc., Hildebran, NC, 28283 PROPOSED RULES Duct Sox Corporation, Subsidiary of Rite Hite, Dubuque, Regulated Navigation Area: IA, 28280 East Rockaway Inlet to Atlantic Beach Bridge, Nassau Leed’s, Warren, OH, 28280 County, Long Island, NY, 28199–28202 Magneti Marelli Powertrain USA, LLC, Sanford, NC, 28282 Commerce Department Mercedes–Benz United States International, Inc., Vance, See International Trade Administration AL, 28281 See National Oceanic and Atmospheric Administration Morgan AM & T, Coudersport, PA, 28282

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Murphy Veneer, White City, OR, 28283 Federal Crop Insurance Corporation Parker Hannifin Corporation, Nichols Portland Division, RULES Portland, ME, 28283 Common Crop Insurance Regulations, Basic Provisions, Progressive Stamping Co., Royal Oak, MI, 28279 28154–28156 Quala–Die, Inc., St. Marys, PA, 28283 Schlumburger, Casper, WY, 28280 Federal Emergency Management Agency Schnadig Corp., Des Plaines, IL, 28279 RULES Semitool Southwest Regional Office, Phoenix, AZ, Final Flood Elevation Determinations, 28166–28198 28283–28284 PROPOSED RULES Swanson Group/Swanson Aviation LLC, Grants Pass, OR, Proposed Flood Elevation Determinations, 28202–28204 28281 NOTICES T. Rad North America, Inc., Hopkinsville, KY, 28282 Major Disaster and Related Determinations: Tube Fabrication Industries, Inc., Logansport, IN, 28281 Florida, 28268 Tyco Electronics, Greensboro, NC, 28282 Major Disaster Declaration: UGN, Inc., Jackson, TN, 28281 West Virginia, 28268–28269 V & E Components, Inc., High Point, NC, 28280 Weyerhaeuser Co., iLevel Dallas Sawmill, Dallas, OR, Federal Energy Regulatory Commission 28281 NOTICES Applications: Energy Department Alabama Power Co., Elmore, AL, 28230 See Federal Energy Regulatory Commission Duke Energy Carolinas, LLC, York County, SC, 28231 NOTICES Gresham, OR, 28229 Meetings: Gulf South Pipeline Co., LP, 28229–28232 Hydrogen and Fuel Cell Technical Advisory Committee, Perryville Gas Storage, LLC, 28232–28233 28227–28228 PPL Montana, LLC, 28228–28229 State Energy Advisory Board; Teleconferences, 28227 Filing of Temporary Waiver Request: Texas Eastern Transmission, LP, 28233 Environmental Protection Agency Filings: NOTICES Washington Gas Light Co., 28233–28234 Agency Information Collection Activities; Proposals, Rate Election and Revised Statement of Operating Submissions, and Approvals, 28236–28241 Conditions: Ambient Air Monitoring Reference and Equivalent Enbridge Pipelines (North Texas) L.P., 28234 Methods: Records Governing Off-the-Record Communications, 28234– Designation of a New Equivalent Method, 28241–28242 28235 Clean Air Act Operating Permit Program: Request Under Blanket Authorization: Petition for Objection to Federal Operating Permit for Columbia Gulf Transmission Co., 28235 CITGO Refining and Chemicals Co. L.P., 28242 Wind Integration Workshop: Petition for Objection to Federal Operating Permit for Midwest Independent Transmission System Operator, Premcor Refining Group, Inc., 28242–28243 Inc., et al., 28235–28236 Proposed Administrative Cost Recovery Agreement: Haythorne Logistics Spill Site, Cheboygan County, MI, Federal Highway Administration 28243–28244 RULES Worker Visibility, 28160–28161 Executive Office of the President See Management and Budget Office Federal Reserve System See Presidential Documents NOTICES Change in Bank Control Notices; Acquisition of Shares of Farm Credit System Insurance Corporation Bank or Bank Holding Companies, 28244 RULES Formations of, Acquisitions by, and Mergers of Bank Premiums, 28156 Holding Companies, 28244

Federal Aviation Administration Federal Trade Commission RULES NOTICES Standard Instrument Approach Procedures, and Takeoff Proposed Consent Agreement: Minimums and Obstacle Departure Procedures; Alta Bates Medical Group; Analysis of Proposed Consent Miscellaneous Amendments, 28156–28160 Order to Aid Public Comment, 28246–28248 NOTICES Sears Holdings Management Corp.; Analysis of Petition for Exemption; Summary of Petition Received, Agreement Containing Consent Order to Aid Public 28322 Comment, 28244–28246

Federal Bureau of Investigation Fish and Wildlife Service NOTICES NOTICES Agency Information Collection Activities; Proposals, Agency Information Collection Activities; Proposals, Submissions, and Approvals, 28276–28277 Submissions, and Approvals, 28269–28270 Charter Reestablishment: Environmental Assessments; Availability, etc.: Criminal Justice Information Services Advisory Policy Modoc National Wildlife Refuge, Modoc County, CA, Board, 28277 28271–28273

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Oregon Islands, Three Arch Rocks, and Cape Meares International Trade Administration National Wildlife Refuges, Lincoln County, OR, NOTICES 28270–28271 Postponement of Preliminary Determination in the Countervailing Duty Investigation: Food and Drug Administration Certain Oil Country Tubular Goods from the People’s NOTICES Republic of China, 28220–28221 Determination: Justice Department THORAZINE Injection and 18 Other Drug Products Were See Antitrust Division Not Withdrawn From Sale for Reasons of Safety or See Drug Enforcement Administration Effectiveness, 28255–28256 See Federal Bureau of Investigation NOTICES Food and Nutrition Service Consent Decree: RULES United States vs. Waste Management of Wisconsin, Inc., School Breakfast Program: et al., 28274 Severe Need Assistance, 28154 Labor Department See Employee Benefits Security Administration Food Safety and Inspection Service See Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Management and Budget Office Submissions, and Approvals, 28213–28214 RULES Guidance for Drug Free Workplace Requirements (Financial Forest Service Assistance), 28149–28154 NOTICES Environmental Impact Statements; Availability, etc.: National Aeronautics and Space Administration Rogue River, Umpqua and Winema National Forest Land RULES and Resource Management Plans for the Pacific Federal Acquisition Regulation (FAR): Connector Gas Pipeline, 28214–28217 FAR Case 2005–032, Contractor’s Request for Progress Payments, 28430–28434 FAR Case 2008–036, Trade Agreements–Costa Rica, General Services Administration Oman, and Peru, 28426–28430 RULES Federal Acquisition Circular 2005–33; Introduction, Federal Acquisition Regulation (FAR): 28426 FAR Case 2005–032, Contractor’s Request for Progress Federal Acquisition Circular 2005–33; Small Entity Payments, 28430–28434 Compliance Guide, 28434 FAR Case 2008–036, Trade Agreements–Costa Rica, NOTICES Oman, and Peru, 28426–28430 Agency Information Collection Activities; Proposals, Federal Acquisition Circular 2005–33; Introduction, Submissions, and Approvals, 28284 28426 Federal Acquisition Circular 2005–33; Small Entity National Credit Union Administration Compliance Guide, 28434 NOTICES Meetings; Sunshine Act, 28285 Health and Human Services Department National Highway Traffic Safety Administration See Centers for Medicare & Medicaid Services PROPOSED RULES See Children and Families Administration Bumper Standard; Petition for Rulemaking, 28209–28212 See Food and Drug Administration Civil Penalties, 28204–28209 See Indian Health Service See National Institutes of Health National Institutes of Health NOTICES Homeland Security Department Government-Owned Inventions; Availability for Licensing, See Coast Guard 28256–28258 See Federal Emergency Management Agency Meetings: See Transportation Security Administration Center for Scientific Review, 28260–28262 See U.S. Citizenship and Immigration Services National Center for Research Resources, 28262 NOTICES National Heart, Lung, and Blood Institute, 28259 Critical Infrastructure Partnership Advisory Council; National Human Genome Research Institute, 28259– Update of Membership, 28263 28260 National Institute of Allergy and Infectious Diseases, Indian Health Service 28262–28263 National Institute of Diabetes and Digestive and Kidney NOTICES Diseases, 28259–28263 Competitive Targeted Solicitation Funding Opportunity, 28250–28254 National Oceanic and Atmospheric Administration RULES Interior Department Taking and Importing Marine Mammals: See Fish and Wildlife Service U.S. Navy Training in the Cherry Point Range Complex, See National Park Service 28370–28391

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U.S. Navy Training in the Jacksonville Range Complex, NASDAQ Stock Market LLC, 28304–28305 28349–28370 National Stock Exchange, Inc., 28305–28307 U.S. Navy Training in the Virginia Capes Range Complex, New York Stock Exchange LLC, 28297–28299 28328–28349 NYSE Amex LLC, 28299–28302 NOTICES NYSE Arca, Inc., 28294–28297, 28307–28308, 28310– Fisheries in the Western Pacific: 28318 Amended Marine Conservation Plan for Pacific Insular Areas; Western Pacific Sustainable Fisheries Fund, State Department 28219 NOTICES Incidental Taking of Marine Mammals: Agency Information Collection Activities; Proposals, Taking of Marine Mammals Incidental to Explosive Submissions, and Approvals, 28319–28320 Removal of Offshore Structures in the Gulf of Mexico, 28219–28220 Surface Transportation Board NOTICES National Park Service Abandonment: NOTICES Union Pacific Railroad Co., Rusk County, TX, 28320– Environmental Impact Statements; Availability, etc.: 28321 Devils Postpile National Monument, Mono County, CA; General Management Plan, 28273–28274 Tennessee Valley Authority NOTICES Navy Department Environmental Impact Statements; Availability, etc.: NOTICES Integrated Resource Plan, 28322–28325 Availability for Donation: Patrol Combatant ex-CANON, Destroyer ex-FORREST Transportation Department SHERMAN, and Aircraft Carrier ex-RANGER, 28222– See Federal Aviation Administration 28223 See Federal Highway Administration See National Highway Traffic Safety Administration Nuclear Regulatory Commission See Pipeline and Hazardous Materials Safety NOTICES Administration Advisory Committee on Reactor Safeguards (ACRS): See Surface Transportation Board Seeks Qualified Candidates, 28285 See Transportation Security Administration Order Imposing Civil Monetary Penalties: S and M Testing Laboratory, Gurabo, PR, 28286–28287 Transportation Security Administration NOTICES Office of Management and Budget Agency Information Collection Activities; Proposals, See Management and Budget Office Submissions, and Approvals, 28264–28265, 28267– 28268 Pension Benefit Guaranty Corporation RULES Treasury Department Allocation of Assets in Single-Employer Plans: RULES Benefits Payable in Terminated Single-Employer Plans; TARP Standards for Compensation and Corporate Interest Assumptions for Valuing and Paying Governance, 28394–28423 Benefits, 28161–28163 U.S. Citizenship and Immigration Services Pipeline and Hazardous Materials Safety Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Applications for Modification of Special Permit, 28321– Submissions, and Approvals, 28265–28267 28322 Veterans Affairs Department Presidential Documents NOTICES ADMINISTRATIVE ORDERS Agency Information Collection Activities; Proposals, Belarus; Continuation of National Emergency (Notice of Submissions, and Approvals, 28325 June 12, 2009), 28435–28437

Securities and Exchange Commission Separate Parts In This Issue NOTICES Agency Information Collection Activities; Proposals, Part II Submissions, and Approvals, 28287–28288 Commerce Department, National Oceanic and Atmospheric Applications and Temporary Orders: Administration, 28328–28391 Banc of America Securities LLC, et al., 28291–28293 Deutsche Bank Securities Inc., et al., 28288–28290 Part III RBC Capital Markets Corp., et al., 28290–28291 Treasury Department, 28394–28423 Investor Advisory Committee; Federal Advisory Committee Establishment; Correction, 28293 Part IV Meetings; Sunshine Act, 28293–28294 Defense Department, 28426–28434 Self-Regulatory Organizations; Proposed Rule Changes: General Services Administration, 28426–28434 Financial Industry Regulatory Authority, Inc., 28302– National Aeronautics and Space Administration, 28426– 28304, 28308–28310, 28318–28319 28434

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Part V Presidential Documents, 28435–28437 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// listserv.access.gpo.gov and select Online mailing list Reader Aids archives, FEDREGTOC-L, Join or leave the list (or change Consult the Reader Aids section at the end of this page for settings); then follow the instructions. phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.

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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.

2 CFR 1...... 28149 182...... 28149 3 CFR Administrative Orders: Notices: Notice of June 12, 2009 ...... 28437 7 CFR 220...... 28154 457...... 28154 12 CFR 1410...... 28156 14 CFR 97 (2 documents) ...... 28156, 28158 23 CFR 634...... 28160 29 CFR 4022...... 28161 4044...... 28161 31 CFR 30...... 28394 33 CFR 165 (2 documents) ...... 28163, 28165 Proposed Rules: 165...... 28199 44 CFR 67...... 28166 Proposed Rules: 67...... 28202 48 CFR Ch. 1 (2 documents) ...... 28426, 28434 25...... 28426 32...... 28430 43...... 28430 52 (2 documents) ...... 28426, 28430 53...... 28430 49 CFR Proposed Rules: 578...... 28204 581...... 28209 50 CFR 218 (3 documents) ...... 28328, 28349, 28370

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Rules and Regulations Federal Register Vol. 74, No. 113

Monday, June 15, 2009

This section of the FEDERAL REGISTER of Federal Regulations (2 CFR). Locating its chapter of 2 CFR to adopt the OMB contains regulatory documents having general the OMB guidance in 2 CFR will make guidance on drug-free workplace, as applicability and legal effect, most of which it easier to find. As a further required under sections 182.20 through are keyed to and codified in the Code of simplification for the public, the OMB 182.35 of the guidance. The rule will Federal Regulations, which is published under guidance then will be in the same CFR give regulatory effect to the OMB 50 titles pursuant to 44 U.S.C. 1510. title as the agencies’ regulations that guidance for the agency’s financial The Code of Federal Regulations is sold by implement the guidance. assistance awards and recipients. The the Superintendent of Documents. Prices of This notice also makes a minor agency also will remove the full text of new books are listed in the first FEDERAL change to the previously issued 2 CFR the November 2003 common rule from REGISTER issue of each week. part 1, to conform that part with the its own CFR title. We expect to guidance published today. complete the process in calendar year DATES: The effective date for this final 2010. OFFICE OF MANAGEMENT AND guidance is July 15, 2009. List of Subjects BUDGET FOR FURTHER INFORMATION CONTACT: Marguerite Pridgen, Office of Federal 2 CFR Part 1 2 CFR Parts 1 and 182 Financial Management, Office of Cooperative agreements, Grant Guidance for Drug-Free Workplace Management and Budget, telephone programs, Grants administration. Requirements (Financial Assistance) (202) 395–7844 (direct) or (202) 395– 3993 (main office) and e-mail: 2 CFR Part 182 AGENCY: Office of Federal Financial [email protected]. Administrative practice and Management, Office of Management and SUPPLEMENTARY INFORMATION: In a procedure, Drug abuse, Grant programs, Budget. Federal Register document published Reporting and recordkeeping ACTION: Final guidance. on September 26, 2008 [73 FR 55776], requirements. OMB proposed to issue drug-free SUMMARY: The Office of Management workplace guidance for grants and Danny Werfel, and Budget (OMB) is issuing guidance cooperative agreements and make a Deputy Controller. on drug-free workplace requirements for minor conforming change to 2 CFR part Authority and Issuance financial assistance. The guidance 1. The proposal was the first step conforms with the common rule that 31 toward replacing a common rule that ■ For the reasons set forth above, the Federal agencies published on Federal agencies issued to implement Office of Management and Budget November 26, 2003 and therefore makes the Drug-Free Workplace Act of 1988, as amends 2 CFR, subtitle A, as follows: no substantive change to Federal it applies to grants (Pub. L. 100–690, policies and procedures in this area. title V, subtitle D, enacted November 18, PART 1—[AMENDED] The agencies issued the common rule 1988). See the Supplementary ■ after resolving public comments 1. The authority citation for part 1 Information section of the September continues to read as follows: received in response to a Notice of 26, 2008, Federal Register document for Proposed Rulemaking. more background information about the Authority: 31 U.S.C. 503; 31 U.S.C. 1111; OMB is issuing this guidance as an agencies’ common rule, the proposed 41 U.S.C. 405; Reorganization Plan No. 2 o administrative simplification that will 1970; E.O. 11541, 35 FR 10737, 3 CFR, 1966– OMB guidance, title 2 of the Code of 1970, p. 939. streamline the policy framework for Federal Regulations in which the drug-free workplace requirements in guidance and agency regulations will be ■ 2. Section 1.215 is revised to read as two ways. First, the guidance is in a located, and the benefits of replacing a follows: form suitable for Federal agency common rule with adoptable guidance. adoption, which will reduce the volume In response to the September 2008 § 1.215 Relationship to previous of Federal regulations on drug-free proposal, OMB received one comment issuances. workplace requirements, make it easier noting a typographical error. We Although some of the guidance was for the affected public to use them, and therefore are finalizing the guidance as organized differently within OMB make it easier and less expensive for the proposed, with the error corrected. circulars or other documents, much of Federal Government to maintain them. Next steps. Each Federal agency that the guidance in this subtitle existed Second, the guidance is located in the is a signatory to the drug-free workplace prior to the establishment of title 2 of recently established title 2 of the Code common rule will issue a brief rule in the CFR. Specifically:

Guidance in * * * On * * * Previously was in * * *

(a) Chapter I, part 180 ...... Nonprocurement debarment and suspension OMB guidance that conforms with the govern- ment-wide common rule (see 60 FR 33036, June 26, 1995). (b) Chapter I, part 182 ...... Drug-free workplace requirements ...... OMB guidance (54 FR 4946, January 31, 1989) and a government-wide common rule (as amended at 68 FR 66534, November 26, 2003). (c) Chapter II, part 215 ...... Administrative requirements for grants and OMB Circular A–110. agreements.

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Guidance in * * * On * * * Previously was in * * *

(d) Chapter II, part 220 ...... Cost principles for educational institutions ...... OMB Circular A–21. (e) Chapter II, part 225 ...... Cost principles for State, local, and Indian OMB Circular A–87. tribal governments. (f) Chapter II, part 230 ...... Cost principles for non-profit organizations ..... OMB Circular A–122. (g) [Reserved].

CHAPTER I—[AMENDED] Subpart E—Violations of This Part and § 182.15 To whom does the guidance Consequences apply? ■ 3. Part 182 is added to Chapter I, to 182.500 How are violations of this part This part provides OMB guidance read as follows: determined for recipients other than only to Federal agencies. Publication of individuals? this guidance in the Code of Federal PART 182—GOVERNMENTWIDE 182.505 How are violations of this part Regulations does not change its nature— REQUIREMENTS FOR DRUG-FREE determined for recipients who are it is guidance and not regulation. WORKPLACE (FINANCIAL individuals? Federal agencies’ implementation of the ASSISTANCE) 182.510 What actions will the Federal Government take against a recipient guidance governs the rights and Sec. determined to have violated this part? responsibilities of other persons affected 182.5 What does this part do? 182.515 Are there any exceptions to those by the drug-free workplace 182.10 How is this part organized? actions? requirements. 182.15 To whom does the guidance apply? Subpart F—Definitions § 182.20 What must a Federal agency do to 182.20 What must a Federal agency do to 182.605 Award. implement the guidance? implement the guidance? 182.610 Controlled substance. 182.25 What must a Federal agency address To comply with the requirement in 182.615 Conviction. in its implementation of the guidance? Section 41 U.S.C. 705 for 182.620 Cooperative agreement. Governmentwide regulations, each 182.30 Where does a Federal agency 182.625 Criminal drug statute. implement the guidance? 182.630 Debarment. Federal agency that awards grants or 182.35 By when must a Federal agency 182.635 Drug-free workplace. cooperative agreements or makes other implement the guidance? 182.640 Employee. financial assistance awards that are 182.40 How is the guidance maintained? 182.645 Federal agency or agency. subject to the drug-free workplace 182.650 Grant. Subpart A—Purpose and Coverage requirements in subparts A through F of 182.655 Individual. the guidance must issue a regulation 182.100 How is this part written? 182.660 Recipient. consistent with those subparts. 182.105 Do terms in this part have special 182.665 State. meanings? 182.670 Suspension. § 182.25 What must a Federal agency address in its implementation of the 182.110 What do subparts A through F of Authority: 41 U.S.C. 701, et seq. this part do? guidance? 182.115 Does this part apply to me? § 182.5 What does this part do? Each Federal agency’s implementing 182.120 Are any of my Federal assistance This part provides Office of regulation: awards exempt from this part? Management and Budget (OMB) (a) Must establish drug-free workplace 182.125 Does this part affect the Federal guidance for Federal agencies on the policies and procedures for that contracts that I receive? portion of the Drug-Free Workplace Act agency’s awards that are consistent with Subpart B—Requirements for Recipients of 1988 (41 U.S.C. 701–707, as the guidance in this part. When adopted Other Than Individuals amended) that applies to grants. It also by a Federal agency, the provisions of 182.200 What must I do to comply with this applies the provisions of the Act to the guidance have regulatory effect for part? cooperative agreements and other that agency’s awards. 182.205 What must I include in my drug- financial assistance awards, as a matter (b) Must address some matters for free workplace statement? of Federal Government policy. which the guidance in this part gives 182.210 To whom must I distribute my the agency discretion. Specifically, the drug-free workplace statement? § 182.10 How is this part organized? regulation must— 182.215 What must I include in my drug- This part is organized in two (1) State whether the agency: free awareness program? segments. (i) Has a central point to which a 182.220 By when must I publish my drug- (a) Sections 182.5 through 182.40 recipient may send the notification of a free workplace statement and establish contain general policy direction for conviction that is required under my drug-free awareness program? Federal agencies’ use of the uniform § 182.225(a) or § 182.300(b); or 182.225 What actions must I take policies and procedures in subparts A (ii) Requires the recipient to send the concerning employees who are convicted through F of this part. notification to the awarding official for of drug violations in the workplace? (b) Subparts A through F of this part each agency award, or to his or her 182.230 How and when must I identify contain uniform governmentwide official designee. workplaces? policies and procedures for Federal (2) Either: Subpart C—Requirements for Recipients agency use to specify the— (i) State that the agency head is the Who Are Individuals (1) Types of awards that are covered official authorized to determine under 182.300 What must I do to comply with this by drug-free workplace requirements; § 182.500 or § 182.505 that a recipient part if I am an individual recipient? (2) Drug-free workplace requirements has violated the drug-free workplace with which a recipient must comply; requirements; or Subpart D—Responsibilities of Agency (3) Actions required of an agency (ii) Provide the title of the official Awarding Officials awarding official; and designated to make that determination. 182.400 What are my responsibilities as an (4) Consequences of a violation of (c) May also, at the agency’s option, agency awarding official? drug-free workplace requirements. identify any specific types of financial

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assistance awards, in addition to grants § 182.40 How is the guidance maintained? § 182.105 Do terms in this part have special meanings? and cooperative agreements, to which The OMB publishes proposed changes the Federal agency makes this guidance This part uses terms that have special to the guidance in the Federal Register applicable. meanings. Those terms are defined in for public comment, considers subpart F of this part. § 182.30 Where does a Federal agency comments with the help of appropriate implement the guidance? interagency working groups, and then § 182.110 What do subparts A through F of Each Federal agency that awards issues any changes to the guidance in this part do? grants or cooperative agreements or final form. Subparts A through F of this part makes other financial assistance awards specify standard policies and that are subject to the drug-free Subpart A—Purpose and Coverage procedures to carry out the Drug-Free workplace guidance in this part must Workplace Act of 1988 for financial § 182.100 How is this part written? issue a regulation implementing the assistance awards. guidance within its chapter in subtitle B (a) This part uses a ‘‘plain language’’ § 182.115 Does this part apply to me? of this title of the Code of Federal format to make it easier for the general Regulations. public and business community to use (a) Portions of this part apply to you and understand. The section headings if you are either— § 182.35 By when must a Federal agency (1) A recipient of a Federal assistance implement the guidance? and text, often in the form of questions and answers, must be read together. award (see definitions of award and Federal agencies must submit recipient in §§ 182.605 and 182.660, proposed regulations to the OMB for (b) Pronouns used within this part, respectively); or review within nine months of the such as ‘‘I’’ and ‘‘you,’’ change from (2) A Federal agency awarding issuance of this part and issue final subpart to subpart depending on the official. regulations within eighteen months of audience being addressed. (b) The following table shows the the guidance. subparts that apply to you:

If you are * * * See subparts * * *

(1) a recipient who is not an individual ...... A, B and E. (2) a recipient who is an individual ...... A, C and E. (3) a Federal agency awarding official ...... A, D and E.

§ 182.120 Are any of my Federal (a) First, you must make a good faith (2) Must notify you in writing if he or assistance awards exempt from this part? effort, on a continuing basis, to maintain she is convicted for a violation of a This part does not apply to any award a drug-free workplace. You must agree criminal drug statute occurring in the to which the agency head, or his or her to do so as a condition for receiving any workplace and must do so no more than designee, determines that the award covered by this part. The specific five calendar days after the conviction. application of this part would be measures that you must take in this regard are described in more detail in § 182.210 To whom must I distribute my inconsistent with the international drug-free workplace statement? obligations of the United States or the subsequent sections of this subpart. You must require that a copy of the laws or regulations of a foreign Briefly, those measures are to— statement described in § 182.205 be government. (1) Publish a drug-free workplace statement and establish a drug-free given to each employee who will be § 182.125 Does this part affect the Federal awareness program for your employees engaged in the performance of any contracts that I receive? (see §§ 182.205 through 182.220); and Federal award. (2) Take actions concerning This part will affect future contract § 182.215 What must I include in my drug- employees who are convicted of awards indirectly if you are debarred or free awareness program? violating drug statutes in the workplace suspended for a violation of the You must establish an ongoing drug- requirements of this part, as described (see § 182.225). (b) Second, you must identify all free awareness program to inform in § 182.510(c). However, this part does known workplaces under your Federal employees about— not apply directly to procurement awards (see § 182.230). (a) The dangers of drug abuse in the contracts. The portion of the Drug-Free workplace; Workplace Act of 1988 that applies to § 182.205 What must I include in my drug- (b) Your policy of maintaining a drug- Federal procurement contracts is carried free workplace statement? free workplace; out through the Federal Acquisition You must publish a statement that— (c) Any available drug counseling, Regulation in chapter 1 of Title 48 of the (a) Tells your employees that the rehabilitation, and employee assistance Code of Federal Regulations (the drug- unlawful manufacture, distribution, programs; and free workplace coverage currently is in dispensing, possession, or use of a (d) The penalties that you may impose 48 CFR part 23, subpart 23.5). controlled substance is prohibited in upon them for drug abuse violations your workplace; occurring in the workplace. Subpart B—Requirements for (b) Specifies the actions that you will Recipients Other Than Individuals take against employees for violating that § 182.220 By when must I publish my prohibition; and drug-free workplace statement and § 182.200 What must I do to comply with establish my drug-free awareness this part? (c) Lets each employee know that, as a condition of employment under any program? There are two general requirements if award, he or she: If you are a new recipient that does you are a recipient other than an (1) Will abide by the terms of the not already have a policy statement as individual. statement; and described in § 182.205 and an ongoing

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awareness program as described in statement and establish the program by § 182.215, you must publish the the time given in the following table:

If * * * Then you * * *

(a) the performance period of the award is less than 30 days ...... must have the policy statement and program in place as soon as pos- sible, but before the date on which performance is expected to be completed. (b) the performance period of the award is 30 days or more ...... must have the policy statement and program in place within 30 days after award. (c) you believe there are extraordinary circumstances that will require may ask the agency awarding official to give you more time to do so. more than 30 days for you to publish the policy statement and estab- The amount of additional time, if any, to be given is at the discretion lish the awareness program. of the awarding official.

§ 182.225 What actions must I take (2) In documents that you keep on file When notice is made to a central point, concerning employees who are convicted in your offices during the performance it must include the identification of drug violations in the workplace? of the award, in which case you must number(s) of each affected award. There are two actions you must take make the information available for if an employee is convicted of a drug inspection upon request by agency Subpart D—Responsibilities of Agency violation in the workplace: officials or their designated Awarding Officials (a) First, you must notify Federal representatives. agencies if an employee who is engaged (b) Your workplace identification for § 182.400 What are my responsibilities as an agency awarding official? in the performance of an award informs an award must include the actual you about a conviction, as required by address of buildings (or parts of As a Federal agency awarding official, § 182.205(c)(2), or you otherwise learn buildings) or other sites where work you must obtain each recipient’s of the conviction. Your notification to under the award takes place. Categorical agreement, as a condition of the award, the Federal agencies must— descriptions may be used (e.g., all to comply with the requirements in— (1) Be in writing; vehicles of a mass transit authority or (a) Subpart B of this part, if the State highway department while in (2) Include the employee’s position recipient is not an individual; or title; operation, State employees in each local (3) Include the identification unemployment office, performers in (b) Subpart C of this part, if the number(s) of each affected award; concert halls or radio studios). recipient is an individual. (c) If you identified workplaces to the (4) Be sent within ten calendar days Subpart E—Violations of This Part and after you learn of the conviction; and agency awarding official at the time of Consequences (5) Be sent to every Federal agency on application or award, as described in whose award the convicted employee paragraph (a)(1) of this section, and any § 182.500 How are violations of this part was working. It must be sent to every workplace that you identified changes determined for recipients other than awarding official or his or her official during the performance of the award, individuals? designee, unless the Federal agency has you must inform the agency awarding A recipient other than an individual specified a central point for the receipt official. is in violation of the requirements of of the notices. Subpart C—Requirements for this part if the agency head or his or her (b) Second, within 30 calendar days of Recipients Who Are Individuals designee determines, in writing, that— learning about an employee’s conviction, you must either– § 182.300 What must I do to comply with (a) The recipient has violated the (1) Take appropriate personnel action this part if I am an individual recipient? requirements of Subpart B of this part; against the employee, up to and As a condition of receiving a Federal or including termination, consistent with agency award, if you are an individual (b) The number of convictions of the the requirements of the Rehabilitation recipient, you must agree that— recipient’s employees for violating Act of 1973 (29 U.S.C. 794), as (a) You will not engage in the criminal drug statutes in the workplace amended; or unlawful manufacture, distribution, is large enough to indicate that the (2) Require the employee to dispensing, possession, or use of a recipient has failed to make a good faith participate satisfactorily in a drug abuse controlled substance in conducting any effort to provide a drug-free workplace. assistance or rehabilitation program activity related to the award; and approved for these purposes by a (b) If you are convicted of a criminal § 182.505 How are violations of this part Federal, State or local health, law drug offense resulting from a violation determined for recipients who are enforcement, or other appropriate occurring during the conduct of any individuals? agency. award activity, you will report the An individual recipient is in violation conviction: of the requirements of this part if the § 182.230 How and when must I identify (1) In writing. workplaces? agency head or his or her designee (2) Within 10 calendar days of the determines, in writing, that— (a) You must identify all known conviction. workplaces under each agency award. A (3) To the Federal agency awarding (a) The recipient has violated the failure to do so is a violation of your official or other designee for each award requirements of Subpart C of this part; drug-free workplace requirements. You that you currently have, unless the or may identify the workplaces— agency designates a central point for the (b) The recipient is convicted of a (1) To the agency official that is receipt of the notices, either in the criminal drug offense resulting from a making the award, either at the time of award document or its regulation violation occurring during the conduct application or upon award; or implementing the guidance in this part. of any award activity.

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§ 182.510 What actions will the Federal § 182.615 Conviction. the performance of work under the Government take against a recipient Conviction means a finding of guilt award and who are on the recipient’s determined to have violated this part? (including a plea of nolo contendere) or payroll. If a recipient is determined to have imposition of sentence, or both, by any (b) This definition does not include violated this part, as described in judicial body charged with the workers not on the payroll of the § 182.500 or § 182.505, the agency may responsibility to determine violations of recipient (e.g., volunteers, even if used take one or more of the following the Federal or State criminal drug to meet a matching requirement; actions— statutes. consultants or independent contractors (a) Suspension of payments under the not on the payroll; or employees of award; § 182.620 Cooperative agreement. subrecipients or subcontractors in (b) Suspension or termination of the Cooperative agreement means an covered workplaces). award; and award of financial assistance that, (c) Suspension or debarment of the consistent with 31 U.S.C. 6305, is used § 182.645 Federal agency or agency. recipient under the agency’s regulation to enter into the same kind of Federal agency or agency means any implementing the OMB guidance on relationship as a grant (see definition of United States executive department, nonprocurement debarment and grant in § 182.650), except that military department, government suspension (2 CFR part 180), for a substantial involvement is expected corporation, government controlled period not to exceed five years. between the Federal agency and the corporation, any other establishment in recipient when carrying out the activity the executive branch (including the § 182.515 Are there any exceptions to contemplated by the award. The term Executive Office of the President), or those actions? does not include cooperative research any independent regulatory agency. The agency head may waive with and development agreements as defined respect to a particular award, in writing, in 15 U.S.C. 3710a. § 182.650 Grant. a suspension of payments under an Grant means an award of financial award, suspension or termination of an § 182.625 Criminal drug statute. assistance that, consistent with 31 award, or suspension or debarment of a Criminal drug statute means a Federal U.S.C. 6304, is used to enter into a recipient if the agency head determines or non-Federal criminal statute relationship— that such a waiver would be in the involving the manufacture, distribution, (a) The principal purpose of which is public interest. This exception authority dispensing, use, or possession of any to transfer a thing of value to the cannot be delegated to any other official. controlled substance. recipient to carry out a public purpose of support or stimulation authorized by Subpart F—Definitions § 182.630 Debarment. a law of the United States, rather than Debarment means an action taken by § 182.605 Award. to acquire property or services for the a Federal agency to prohibit a recipient Federal Government’s direct benefit or Award means an award of financial from participating in Federal use; and assistance by a Federal agency directly Government procurement contracts and (b) In which substantial involvement to a recipient. covered nonprocurement transactions. is not expected between the Federal (a) The term award includes: A recipient so prohibited is debarred, in agency and the recipient when carrying (1) A Federal grant or cooperative accordance with the Federal Acquisition out the activity contemplated by the agreement, in the form of money or Regulation for procurement contracts award. property in lieu of money. (48 CFR part 9, subpart 9.4) and agency (2) A block grant or a grant in an regulations implementing the OMB § 182.655 Individual. entitlement program, whether or not the guidance on nonprocurement Individual means a natural person. grant is exempted from coverage under debarment and suspension (2 CFR part § 182.660 Recipient. the Governmentwide rule that 180, which implements Executive implements OMB Circular A–102 (for Orders 12549 and 12689). Recipient means any individual, availability of OMB circulars, see 5 CFR corporation, partnership, association, 1310.3) and specifies uniform § 182.635 Drug-free workplace. unit of government (except a Federal administrative requirements. Drug-free workplace means a site for agency) or legal entity, however (b) The term award does not include: the performance of work done in organized, that receives an award (1) Technical assistance that provides connection with a specific award at directly from a Federal agency. services instead of money. which employees of the recipient are (2) Loans. prohibited from engaging in the § 182.665 State. (3) Loan guarantees. unlawful manufacture, distribution, State means any of the States of the (4) Interest subsidies. dispensing, possession, or use of a United States, the District of Columbia, (5) Insurance. controlled substance. the Commonwealth of Puerto Rico, or (6) Direct appropriations. any territory or possession of the United (7) Veterans’ benefits to individuals § 182.640 Employee. States. (i.e., any benefit to veterans, their (a) Employee means the employee of families, or survivors by virtue of the a recipient directly engaged in the § 182.670 Suspension. service of a veteran in the Armed Forces performance of work under the award, Suspension means an action taken by of the United States). including— a Federal agency that immediately (1) All direct charge employees; prohibits a recipient from participating § 182.610 Controlled substance. (2) All indirect charge employees, in Federal Government procurement Controlled substance means a unless their impact or involvement in contracts and covered nonprocurement controlled substance in schedules I the performance of work under the transactions for a temporary period, through V of the Controlled Substances award is insignificant to the pending completion of an investigation Act (21 U.S.C. 812), and as further performance of the award; and and any judicial or administrative defined by regulation at 21 CFR 1308.11 (3) Temporary personnel and proceedings that may ensue. A recipient through 1308.15. consultants who are directly engaged in so prohibited is suspended, in

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accordance with the Federal Acquisition Division, Food and Nutrition Service at Dated: June 3, 2009. Regulation for procurement contracts (703) 305–2590. Julia Paradis, (48 CFR part 9, subpart 9.4) and agency SUPPLEMENTARY INFORMATION: Administrator, Food and Nutrition Service. regulations implementing the OMB [FR Doc. E9–14021 Filed 6–12–09; 8:45 am] guidance on nonprocurement Background BILLING CODE 3410–30–P debarment and suspension (2 CFR part 180, which implements Executive On November 2, 2005, the Department Orders 12549 and 12689). Suspension of published an interim rule on the School DEPARTMENT OF AGRICULTURE a recipient is a distinct and separate Breakfast Program. Section 501(b) of action from suspension of an award or Public Law 108–265 states that FNS Federal Crop Insurance Corporation suspension of payments under an may promulgate interim regulations to award. implement amendments made by 7 CFR Part 457 Section 201 of the Child Nutrition and [FR Doc. E9–14019 Filed 6–12–09; 8:45 am] WIC Reauthorization Act of 2004. FNS RIN 0563–AC23 BILLING CODE P published an interim rule to expedite Common Crop Insurance Regulations, implementation of the rule’s provisions, Basic Provisions while allowing public input. Comments DEPARTMENT OF AGRICULTURE were invited on the rule and the AGENCY: Federal Crop Insurance comment period ended on May 1, 2006. Corporation, USDA. Food and Nutrition Service FNS received four public comments, all ACTION: Interim rule. in support of the rule: two from State 7 CFR Part 220 agencies, one from a school district, and SUMMARY: The Federal Crop Insurance Corporation (FCIC) amends the [FNS–2005–0008] one from a school. Commenters commended FNS for helping severe Common Crop Insurance Regulations, RIN 0584–AD50 need schools participate in the SBP by: Basic Provisions to revise enterprise • unit provisions to protect the program School Breakfast Program: Severe Eliminating the paperwork burden from potential abuse as a result of the Need Assistance associated with documenting costs, and increased premium subsidies for • Allowing the Secretary to determine enterprise and whole farm units AGENCY: Food and Nutrition Service severe need funding for new schools provided by the Food, Conservation, (FNS), USDA. that do not have historical participation and Energy Act of 2008 (2008 Farm ACTION: Affirmation of interim rule as information. Bill). final rule. Commenters did not recommend any DATES: This rule is effective June 15, SUMMARY: The Department is adopting changes to the provisions of the interim 2009. Written comments and opinions as a final rule, without change, an rule. Therefore, the Department is on this rule will be accepted until the interim rule that amended the adopting the interim rule as a final rule close of business August 14, 2009 and regulations for the School Breakfast without change. Although there are no will be considered when the rule is to Program. The interim rule addresses and changes to the rule, the most recent be made final. implements amendments made by School Breakfast Program information ADDRESSES: Interested persons are Section 201 of the Child Nutrition and collection package (OMB Information invited to submit comments, titled WIC Reauthorization Act of 2004 and Collection Request 0584–0012), shows ‘‘Enterprise Unit Interim Rule’’, by any that the overall burden hours have of the following methods: amends the School Breakfast Program • (SBP) regulations to eliminate the increased due to school food authority By Mail to: Director, Product requirement that a school’s costs exceed and school participation. This action Administration and Standards Division, the rate of reimbursement as a criterion also affirms information contained in Risk Management Agency, United States for receiving the higher severe need the interim rule concerning Executive Department of Agriculture, Beacon funding available in the SBP. The rule Order 12866, the Regulatory Flexibility Facility—Mail Stop 0812, Room 421, also allows State agencies to provide Act, Executive Order 12988, and the P.O. Box 419205, Kansas City, MO severe need reimbursements to certain Paperwork Reduction Act. Further, for 64141–6205. • By Express Mail to: Director, new schools that are beginning this action, the Office of Management Product Administration and Standards participation in the school feeding and Budget has waived its review under Division, Risk Management Agency, programs and therefore have no Executive Order 12866. United States Department of historical second preceding year List of Subjects in 7 CFR Part 220 Agriculture, Beacon Facility, Stop 0812, participation information, as was 9240 Troost Avenue, Kansas City, MO previously required. The rule is Grant programs—education, Grant programs—health, Infants and children, 64131–3055. intended to simplify eligibility for • Nutrition, Reporting and recordkeeping E-Mail: [email protected]. severe need reimbursements by • Federal eRulemaking Portal: http:// removing previous restrictions on requirements, School breakfast and lunch programs. www.regulations.gov. Follow the receipt of those payments. This rule instructions for submitting comments. does not impose new administrative PART 220—SCHOOL BREAKFAST A copy of each response will be requirements on State or local PROGRAM: SEVERE NEED available for public inspection and governmental entities. ASSISTANCE copying from 7 a.m. to 4:30 p.m., CST, DATES: Effective on June 15, 2009, the Monday through Friday, except Department is adopting as a final rule Accordingly, the Department is holidays, at 6501 Beacon Drive, Stop the interim rule published at 70 FR adopting as a final rule, without change, 0812, Room 421, Kansas City, MO 66247 on November 2, 2005. the interim rule that amended 7 CFR 64133–4676. FOR FURTHER INFORMATION CONTACT: Ms. Part 220 and was published at 70 FR FOR FURTHER INFORMATION CONTACT: Erin Melissa Rothstein, Child Nutrition 66247 on November 2, 2005. Albright, Risk Management Specialist,

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Product Management, Product entities. Program requirements for the Environmental Assessment nor an Administration and Standards Division, Federal crop insurance program are the Environmental Impact Statement is Risk Management Agency, United States same for all producers regardless of the needed. Department of Agriculture, Beacon size of their farming operation. For Background Facility, Stop 0812, Room 421, P.O. Box instance, all producers are required to 419205, Kansas City, MO 64141–6205, submit an application and acreage On May 22, 2008, the 2008 Farm Bill telephone (816) 926–7730. report to establish their insurance was enacted. Section 12011 of the 2008 SUPPLEMENTARY INFORMATION: guarantees and compute premium Farm Bill amended section 508(e) of the amounts, and all producers are required Federal Crop Insurance Act (7 U.S.C. Executive Order 12866 to submit a notice of loss and 1508(e)) to allow producers who elect This rule has been determined to be production information to determine the whole-farm or enterprise units to non-significant for the purposes of amount of an indemnity payment in the receive, to the maximum extent Executive Order 12866 and, therefore, it event of an insured cause of crop loss. practicable, the same dollar amount of has not been reviewed by the Office of Whether a producer has 10 acres or premium subsidy that would have Management and Budget (OMB). 1,000 acres, there is no difference in the otherwise been paid if they had elected kind of information collected. To ensure a basic or optional unit for the crop. Paperwork Reduction Act of 1995 crop insurance is available to small The increased subsidy amount Pursuant to the provisions of the entities, the Federal Crop Insurance Act provides a much larger incentive than in Paperwork Reduction Act of 1995 (44 (Act) authorizes FCIC to waive the past to qualify for an enterprise unit. U.S.C. chapter 35), the collections of collection of administrative fees from The increased incentive may lead to information in this rule have been limited resource farmers. FCIC believes unintended consequences when producers change planting intentions approved by OMB under control this waiver helps to ensure that small solely for the purpose of qualifying for number 0563–0053 through March 31, entities are given the same opportunities the larger subsidy. To qualify for an 2012. as large entities to manage their risks enterprise unit, current provisions through the use of crop insurance. A E-Government Act Compliance require a producer to plant some acreage Regulatory Flexibility Analysis has not in two or more sections, FSA farm serial FCIC is committed to complying with been prepared since this regulation does numbers, or other means of land the E-Government Act of 2002, to not have an impact on small entities, measurement. There is no requirement promote the use of the Internet and and, therefore, this regulation is exempt stating a minimum number of acres that other information technologies to from the provisions of the Regulatory must be planted in more than one provide increased opportunities for Flexibility Act (5 U.S.C. 605). citizen access to Government section, FSA farm serial number, etc., to information and services, and for other Federal Assistance Program qualify for an enterprise unit. This purposes. This program is listed in the Catalog leaves the program vulnerable to producers who will plant only a small Unfunded Mandates Reform Act of of Federal Domestic Assistance under No. 10.450. amount of acreage in an additional 1995 section, FSA farm serial number, etc. Title II of the Unfunded Mandates Executive Order 12372 solely for the purpose of qualifying for Reform Act of 1995 (UMRA) establishes This program is not subject to the an enterprise unit and the increased requirements for Federal agencies to provisions of Executive Order 12372, subsidy. FCIC has received questions assess the effects of their regulatory which require intergovernmental and anecdotal information and has seen actions on State, local, and Tribal consultation with State and local blogs on agricultural forums indicating governments and the private sector. officials. See the Notice related to 7 CFR that some insured producers are This rule contains no Federal mandates part 3015, subpart V, published at 48 FR contemplating taking these actions. (under the regulatory provisions of title 29115, June 24, 1983. The new subsidy amounts are II of the UMRA) for State, local, and intended only for producers who are Tribal governments or the private sector. Executive Order 12988 willing to combine optional or basic Therefore, this rule is not subject to the This rule has been reviewed in units, not for those who manipulate unit requirements of sections 202 and 205 of accordance with Executive Order 12988 structures solely to benefit from the UMRA. on civil justice reform. The provisions higher subsidy. For this reason, FCIC is of this rule will not have a retroactive revising the definition of ‘‘enterprise Executive Order 13132 effect. The provisions of this rule will unit’’ in the Basic Provisions to specify It has been determined under section preempt State and local laws to the at least two of the sections, section 1(a) of Executive Order 13132, extent such State and local laws are equivalents, FSA farm serial numbers, Federalism, that this rule does not have inconsistent herewith. With respect to or units established by written sufficient implications to warrant any direct action taken by FCIC or to agreement must each have planted consultation with the States. The require the insurance provider to take acreage that constitutes at least the provisions contained in this rule will specific action under the terms of the lesser of 20 acres or 20 percent of the not have a substantial direct effect on crop insurance policy, the insured crop acreage in the enterprise States, or on the relationship between administrative appeal provisions unit. The lesser of 20 acres or 20 percent the national government and the States, published at 7 CFR part 11 must be is consistent with other provisions in or on the distribution of power and exhausted before any action against the policy that require a minimum responsibilities among the various FCIC for judicial review may be brought. amount of acreage to qualify for certain levels of government. other coverage (for example, a Environmental Evaluation replanting payment may be made when Regulatory Flexibility Act This action is not expected to have a the number of acres replanted is at least FCIC certifies that this regulation will significant economic impact on the the lesser of 20 acres or 20 percent of not have a significant economic impact quality of the human environment, the insured planted acreage in a unit). on a substantial number of small health, or safety. Therefore, neither an This change is necessary to protect

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program integrity by ensuring that which you have a share on the date of the rule is 30 days from the date of producers are unable to manipulate coverage begins for the crop year. publication in the Federal Register their unit structure by making slight (1) To qualify, an enterprise unit must during which either or both Houses of changes in their farming operation to contain all of the insurable acreage of Congress are in session. Based on the gain additional benefits from the the same insured crop in: records of the sessions of Congress, the increased subsidy. (i) One or more basic units that are effective date of the regulations is The amendments in this rule are located in two or more separate June 9, 2009. applicable for the 2010 and succeeding sections, section equivalents, FSA farm DATES: Effective Date: The regulation crop years for all crops with a 2010 crop serial numbers, or units established by amending 12 CFR part 1410 published year contract change date on or after the written agreement; or on April 15, 2009 (74 FR 17371) is effective date of this rule and for the (ii) Two or more optional units effective June 9, 2009. established by separate sections, section 2011 and succeeding crop years for all FOR FURTHER INFORMATION CONTACT: equivalents, FSA farm serial numbers, crops with a 2010 crop year contract James M. Morris, General Counsel, Farm or as established by written agreement; change date prior to the effective date of Credit System Insurance Corporation, and this rule. 1501 Farm Credit Drive, McLean, VA (2) At least two of the sections, Good cause is shown to make this rule 22102, 703–883–4380, TTY 703–883– section equivalents, FSA farm serial effective upon publication in the 4390, Fax 703–790–9088. Federal Register. Good cause to make numbers, or units established by written the rule effective upon publication in agreement making up the basic or Roland E. Smith, the Federal Register exists when the 30 optional units in paragraph (1) of this Secretary to the Board, Farm Credit System day delay in the effective date is definition must each have planted Insurance Corporation. impracticable, unnecessary, or contrary acreage that constitutes at least the [FR Doc. E9–13954 Filed 6–12–09; 8:45 am] to the public interest. lesser of 20 acres or 20 percent of the BILLING CODE 6710–01–P With respect to the provisions of this insured crop acreage in the enterprise rule, it would adversely affect program unit. integrity to delay its implementation. If * * * * * DEPARTMENT OF TRANSPORTATION FCIC is required to delay the Signed in Washington, DC, on June 5, implementation of this rule 30 days 2009. Federal Aviation Administration after the date it is published, the William J. Murphy, provisions of this rule could not be 14 CFR Part 97 implemented until the next crop year Acting Manager, Federal Crop Insurance Corporation. [Docket No. 30670 Amdt. No. 3324] for those crops having a contract change date prior to the effective date of this [FR Doc. E9–13937 Filed 6–12–09; 8:45 am] BILLING CODE 3410–08–P Standard Instrument Approach publication. Because a delay in the Procedures, and Takeoff Minimums effective date of this rule is contrary to and Obstacle Departure Procedures; the public interest, good cause exists to Miscellaneous Amendments make these policy changes effective FARM CREDIT SYSTEM INSURANCE upon publication in the Federal CORPORATION AGENCY: Federal Aviation Register. Administration (FAA), DOT. 12 CFR Part 1410 ACTION: Final rule. List of Subjects in 7 CFR Part 457 RIN 3055–AA10 Crop insurance, Reporting and SUMMARY: This establishes, amends, recordkeeping requirements. Premiums suspends, or revokes Standard Instrument Approach Procedures AGENCY: Farm Credit System Insurance Interim Rule (SIAPs) and associated Takeoff Corporation. ■ Accordingly, as set forth in the Minimums and Obstacle Departure ACTION: Notice of effective date. preamble, the Federal Crop Insurance Procedures for operations at certain Corporation amends 7 CFR part 457 as SUMMARY: The Farm Credit System airports. These regulatory actions are follows: Insurance Corporation (FCSIC) issued a needed because of the adoption of new direct final rule with opportunity for or revised criteria, or because of changes PART 457—COMMON CROP comment on April 15, 2009 (74 FR occurring in the National Airspace INSURANCE REGULATIONS 17371) amending its premium System, such as the commissioning of new navigational facilities, adding new ■ 1. The authority citation for 7 CFR regulations under 12 CFR part 1410 to obstacles, or changing air traffic part 457 continues to read as follows: reflect the amendments of the Farm Credit Act of 1971 that were made by requirements. These changes are Authority: 7 U.S.C. 1506(l), 1506(o). the enactment of the Food, designed to provide safe and efficient ■ 2. In § 457.8, paragraph (b) is amended Conservation, and Energy Act of 2008. use of the navigable airspace and to by revising the definition of ‘‘Enterprise The purpose of the amended rule is to promote safe flight operations under unit.’’ clarify the premium regulations and instrument flight rules at the affected The revised text reads as follows: eliminate provisions of the premium airports. regulations that are obsolete or DATES: This rule is effective June 15, § 457.8 The application and policy. inconsistent with the Farm Credit Act of 2009. The compliance date for each * * * * * 1971, as amended. The opportunity for SIAP, associated Takeoff Minimums, (b) * * * comment expired on May 15, 2009. The and ODP is specified in the amendatory 1. Definitions. FCSIC received no comments and provisions. * * * * * therefore, the direct final rule becomes The incorporation by reference of Enterprise unit. All insurable acreage effective without change. In accordance certain publications listed in the of the insured crop in the county in with 12 U.S.C. 2252, the effective date regulations is approved by the Director

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of the Federal Register as of June 15, a special format make publication in the ‘‘significant regulatory action’’ under 2009. Federal Register expensive and Executive Order 12866; (2) is not a ADDRESSES: Availability of matters impractical. Furthermore, airmen do not ‘‘significant rule’’ under DOT incorporated by reference in the use the regulatory text of the SIAPs, Regulatory Policies and Procedures (44 amendment is as follows: Takeoff Minimums or ODPs, but instead FR 11034; February 26, 1979); and (3) For Examination— refer to their depiction on charts printed does not warrant preparation of a 1. FAA Rules Docket, FAA by publishers of aeronautical materials. regulatory evaluation as the anticipated Headquarters Building, 800 The advantages of incorporation by impact is so minimal. For the same Independence Avenue, SW., reference are realized and publication of reason, the FAA certifies that this Washington, DC 20591; the complete description of each SIAP, amendment will not have a significant 2. The FAA Regional Office of the Takeoff Minimums and ODP listed on economic impact on a substantial region in which the affected airport is FAA forms is unnecessary. This number of small entities under the located; amendment provides the affected CFR criteria of the Regulatory Flexibility Act. sections and specifies the types of SIAPs 3. The National Flight Procedures List of Subjects in 14 CFR Part 97 Office, 6500 South MacArthur Blvd., and the effective dates of the associated Oklahoma City, OK 73169 or, Takeoff Minimums and ODPs. This Air Traffic Control, Airports, 4. The National Archives and Records amendment also identifies the airport Incorporation by reference, and Administration (NARA). For and its location, the procedure, and the Navigation (Air). information on the availability of this amendment number. Issued in Washington, DC, on May 29, material at NARA, call 202–741–6030, The Rule 2009. or go to: http://www.archives.gov/ John M. Allen, _ This amendment to 14 CFR part 97 is federal register/ Director, Flight Standards Service. code_of_federal_regulations/ effective upon publication of each ibr_locations.html. separate SIAP, Takeoff Minimums and Adoption of the Amendment ODP as contained in the transmittal. Availability—All SIAPs and Takeoff ■ Accordingly, pursuant to the authority Minimums and ODPs are available Some SIAP and Takeoff Minimums and textual ODP amendments may have delegated to me, title 14, Code of online free of charge. Visit http:// Federal Regulations, part 97 (14 CFR www.nfdc.faa.gov to register. been issued previously by the FAA in a Flight Data Center (FDC) Notice to part 97) is amended by establishing, Additionally, individual SIAP and amending, suspending, or revoking Takeoff Minimums and ODP copies may Airmen (NOTAM) as an emergency action of immediate flight safety relating Standard Instrument Approach be obtained from: Procedures and/or Takeoff Minimums 1. FAA Public Inquiry Center (APA– directly to published aeronautical and/or Obstacle Departure Procedures 200), FAA Headquarters Building, 800 charts. The circumstances which effective at 0902 UTC on the dates Independence Avenue, SW., created the need for some SIAP and specified, as follows: Washington, DC 20591; or Takeoff Minimums and ODP 2. The FAA Regional Office of the amendments may require making them effective in less than 30 days. For the PART 97—STANDARD INSTRUMENT region in which the affected airport is APPROACH PROCEDURES located. remaining SIAPS and Takeoff Minimums and ODPS, an effective date ■ 1. The authority citation for part 97 FOR FURTHER INFORMATION CONTACT: at least 30 days after publication is continues to read as follows: Harry J. Hodges, Flight Procedure provided. Standards Branch (AFS–420), Flight Further, the SIAPs and Takeoff Authority: 49 U.S.C. 106(g), 40103, 40106, Technologies and Programs Divisions, 40113, 40114, 40120, 44502, 44514, 44701, Minimums and ODPS contained in this 44719, 44721–44722. Flight Standards Service, Federal amendment are based on the criteria Aviation Administration, Mike contained in the U.S. Standard for ■ 2. Part 97 is amended to read as Monroney Aeronautical Center, 6500 Terminal Instrument Procedures follows: South MacArthur Blvd., Oklahoma City, (TERPS). In developing these SIAPS and Effective 02 JUL 2009 OK 73169 (Mail Address: P.O. Box Takeoff Minimums and ODPs, the Brooksville, FL, Hernando County, RNAV 25082, Oklahoma City, OK 73125) TERPS criteria were applied to the (GPS) RWY 3, Amdt 1 Telephone: (405) 954–4164. conditions existing or anticipated at the Brooksville, FL, Hernando County, RNAV SUPPLEMENTARY INFORMATION: This rule affected airports. Because of the close (GPS) RWY 9, amdt 1 amends Title 14 of the Code of Federal and immediate relationship between Brooksville, FL, Hernando County, RNAV Regulations, Part 97 (14 CFR part 97), by these SIAPs, Takeoff Minimums and (GPS) RWY 21, Amdt 1 Brooksville, FL, Hernando County, RNAV establishing, amending, suspending, or ODPs, and safety in air commerce, I find revoking SIAPs, Takeoff Minimums (GPS) RWY 27, Amdt 1 that notice and public procedures before Brooksville, FL, Hernando County, Takeoff and/or ODPs. The complete regulators adopting these SIAPS, Takeoff Minimums and Obstacle DP, Orig description of each SIAP and its Minimums and ODPs are impracticable Fort Lauderdale, FL, Fort Lauderdale/ associated Takeoff Minimums or ODP and contrary to the public interest and, Hollywood Intl, RNAV (GPS) RWY 13, for an identified airport is listed on FAA where applicable, that good cause exists Amdt 1 form documents which are incorporated for making some SIAPs effective in less Fort Lauderdale, FL, Fort Lauderdale/ by reference in this amendment under 5 than 30 days. Hollywood Intl, RNAV (GPS) RWY 27L, U.S.C. 552(a), 1 CFR part 51, and 14 Orig CFR part 97.20. The applicable FAA Conclusion Fort Stewart (Hinesville), GA, Wright AAF Forms are FAA Forms 8260–3, 8260–4, The FAA has determined that this (Fort Stewart)/Midcoast Rgnl, NDB RWY 33R, Orig Fort Stewart (Hinesville), GA, 8260–5, 8260–15A, and 8260–15B when regulation only involves an established Wright AAF (Fort Stewart)/Midcoast Rgnl, required by an entry on 8260–15A. body of technical regulations for which RADAR 1, Original, (CANCELLED) Fort The large number of SIAPs, Takeoff frequent and routine amendments are Stewart (Hinesville), GA, Wright AAF (Fort Minimums and ODPs, in addition to necessary to keep them operationally Stewart)/Midcoast Rgnl, RNAV (GPS) RWY their complex nature and the need for current. It, therefore—(1) is not a 6L, Orig Fort Stewart (Hinesville), GA,

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Wright AAF (Fort Stewart)/Midcoast Rgnl, Maryville, MO, Northwest Missouri Rgnl, Memphis, TN, Memphis Intl, RNAV (GPS) Z RNAV (GPS) RWY 33R, Orig Fort Stewart Takeoff Minimums and Obstacle DP, Amdt RWY 18L, Amdt 2 (Hinesville), GA, Wright AAF (Fort 3 Memphis, TN, Memphis Intl, RNAV (GPS) Z Stewart)/Midcoast Rgnl, Takeoff Maryville, MO, Northwest Missouri Rgnl, RWY 18R, Amdt 2 Minimums and Obstacle DP, Orig VOR/DME OR GPS RWY 36, Amdt 4, Memphis, TN, Memphis Intl, RNAV (RNP) X Savannah, GA, Savannah/Hilton Head Intl, CANCELLED RWY 18L, Orig ILS OR LOC RWY 1, Amdt 8 Blair, NE, Blair Muni, RNAV (GPS) RWY 13, Memphis, TN, Memphis Intl, RNAV (RNP) X Savannah, GA, Savannah/Hilton Head Intl, Orig RWY 18R, Orig ILS OR LOC RWY 10, Amdt 27A Blair, NE, Blair Muni, RNAV (GPS) RWY 31, Memphis, TN, Memphis Intl, RNAV (RNP) Y Savannah, GA, Savannah/Hilton Head Intl, Orig RWY 18C, Orig RNAV (GPS) RWY 1, Amdt 2 Blair, NE, Blair Muni, Takeoff Minimums Memphis, TN, Memphis Intl, RNAV (RNP) Y Savannah, GA, Savannah/Hilton Head Intl, and Obstacle DP, Orig RWY 18L, Orig RNAV (GPS) RWY 10, Amdt 2 Reno, NV, Reno/Tahoe Intl, RNAV (RNP) Z Memphis, TN, Memphis Intl, RNAV (RNP) Y Savannah, GA, Savannah/Hilton Head Intl, RWY 16R, Orig-B RWY 18R, Orig Cleveland, OH, Cuyahoga County, ILS OR Mountain City, TN, Johnson County, RNAV RNAV (GPS) RWY 19, Amdt 2 LOC RWY 24, Amdt 14 (GPS) RWY 6, Orig Savannah, GA, Savannah/Hilton Head Intl, Cleveland, OH, Cuyahoga County, LOC/DME Mountain City, TN, Johnson County, RNAV RNAV (GPS) Z RWY 28, Amdt 2 BC RWY 6, Amdt 11 (GPS) RWY 24, Orig Savannah, GA, Savannah/Hilton Head Intl, Cleveland, OH, Cuyahoga County, NDB OR Savannah, TN, Savannah-Hardin County, Takeoff Minimums and Obstacle DP, Amdt GPS RWY 24, Amdt 8C, CANCELLED GPS RWY 1, Orig, CANCELLED 6 Cleveland, OH, Cuyahoga County, RNAV Savannah, TN, Savannah-Hardin County, Savannah, GA, Savannah/Hilton Head Intl, (GPS) RWY 6, Orig GPS RWY 19, Orig, CANCELLED VOR/DME–A, Orig-A Cleveland, OH, Cuyahoga County, RNAV Savannah, TN, Savannah-Hardin County, Savannah, GA, Savannah/Hilton Head Intl, (GPS) RWY 24, Orig RNAV (GPS) RWY 1, Orig VOR/DME OR TACAN RWY 1, Orig-B Port Clinton, OH, Carl R Keller Field, GPS Savannah, TN, Savannah-Hardin County, Savannah, GA, Savannah/Hilton Head Intl, RWY 27, Amdt 1A, CANCELLED RNAV (GPS) RWY 19, Orig VOR/DME OR TACAN RWY 19, Orig-A Port Clinton, OH, Carl R Keller Field, NDB Oak Harbor, WA, A.J. Eisenberg, RNAV (GPS) Richmond, IN, Richmond Muni, RNAV (GPS) RWY 27, Amdt 13 RWY 7, Amdt 2C RWY 33, Orig Port Clinton, OH, Carl R Keller Field, RNAV Houma, LA, Houma-Terrebonne, COPTER (GPS) RWY 9, Orig [FR Doc. E9–13872 Filed 6–12–09; 8:45 am] VOR/DME RWY 12, Amdt 4 Port Clinton, OH, Carl R Keller Field, RNAV BILLING CODE 4910–13–P Houma, LA, Houma-Terrebonne, GPS RWY (GPS) RWY 27, Orig 12, Amdt 1A, CANCELLED Port Clinton, OH, Carl R Keller Field, Takeoff Houma, LA, Houma-Terrebonne, GPS RWY Minimums and Obstacle DP, Amdt 6 DEPARTMENT OF TRANSPORTATION 18, Orig-A, CANCELLED Port Clinton, OH, Carl R Keller Field, VOR/ Houma, LA, Houma-Terrebonne, GPS RWY DME–A, Amdt 9 14 CFR Part 97 Erie, PA, Erie Intl/Tom Ridge Field, ILS OR 36, Orig-A, CANCELLED [Docket No. 30671; Amdt. No. 3325] Houma, LA, Houma-Terrebonne, ILS OR LOC LOC RWY 6, Amdt 16 RWY 18, Amdt 4 Erie, PA, Erie Intl/Tom Ridge Field, ILS OR LOC/DME RWY 24, Amdt 8 Standard Instrument Approach Houma, LA, Houma-Terrebonne, RNAV Procedures, and Takeoff Minimums (GPS) RWY 12, Orig Erie, PA, Erie Intl/Tom Ridge Field, NDB Houma, LA, Houma-Terrebonne, RNAV RWY 6, Amdt 1 and Obstacle Departure Procedures; (GPS) RWY 18, Orig Erie, PA, Erie Intl/Tom Ridge Field, NDB Miscellaneous Amendments Houma, LA, Houma-Terrebonne, RNAV RWY 24, Amdt 18 Erie, PA, Erie Intl/Tom Ridge Field, RNAV AGENCY: Federal Aviation (GPS) RWY 30, Orig Administration (FAA), DOT. Houma, LA, Houma-Terrebonne, RNAV (GPS) RWY 6, Orig (GPS) RWY 36, Orig Erie, PA, Erie Intl/Tom Ridge Field, RNAV ACTION: Final rule. Houma, LA, Houma-Terrebonne, Takeoff (GPS) RWY 24, Orig SUMMARY: This rule establishes, amends, Minimums and Obstacle DP, Amdt 5 Erie, PA, Erie Intl/Tom Ridge Field, Takeoff Minimums and Obstacle DP, Amdt 5 Houma, LA, Houma-Terrebonne, VOR/DME suspends, or revokes Standard Erie, PA, Erie Intl/Tom Ridge Field, VOR RWY 30, Amdt 12 Instrument Approach Procedures RWY 6, Amdt 16 Grand Rapids, MI, Gerald R. Ford Intl, ILS (SIAPs) and associated Takeoff Erie, PA, Erie Intl/Tom Ridge Field, VOR/ OR LOC RWY 8R, Amdt 6 Minimums and Obstacle Departure DME RWY 24, Amdt 12 Procedures for operations at certain Grand Rapids, MI, Gerald R. Ford Intl, ILS Wilkes-Barre/Scranton, PA, Wilkes-Barre/ OR LOC RWY 26L, Amdt 21 Scranton Intl, ILS OR LOC/DME RWY 22, airports. These regulatory actions are Grand Rapids, MI, Gerald R. Ford Intl, ILS Amdt 6 needed because of the adoption of new OR LOC RWY 35, Amdt 1 Wilkes-Barre/Scranton, PA, Wilkes-Barre/ or revised criteria, or because of changes Grand Rapids, MI, Gerald R. Ford Intl, RNAV Scranton Intl, RNAV (GPS) RWY 4, Orig occurring in the National Airspace (GPS) RWY 8L, Amdt 1 Wilkes-Barre/Scranton, PA, Wilkes-Barre/ System, such as the commissioning of Grand Rapids, MI, Gerald R. Ford Intl, RNAV Scranton Intl, RNAV (GPS RWY 22, Orig new navigational facilities, adding new (GPS) RWY 8R, Amdt 1 North Kingstown, RI, Quonset State, ILS OR obstacles, or changing air traffic Grand Rapids, MI, Gerald R. Ford Intl, RNAV LOC RWY 16, Amdt 10 (GPS) RWY 17, Amdt 1 requirements. These changes are Greenville, SC, Greenville Downtown, RNAV designed to provide safe and efficient Grand Rapids, MI, Gerald R. Ford Intl, RNAV (GPS) RWY 1, Orig (GPS) RWY 26L, Amdt 1 Greenville, SC, Greenville Downtown, RNAV use of the navigable airspace and to Grand Rapids, MI, Gerald R. Ford Intl, RNAV (GPS) RWY 10, Orig promote safe flight operations under (GPS) RWY 26R, Amdt 1 Newberry, SC, Newberry County, GPS RWY instrument flight rules at the affected Grand Rapids, MI, Gerald R. Ford Intl, RNAV 22, Orig, CANCELLED airports. (GPS) RWY 35, Amdt 1 Newberry, SC, Newberry County, RNAV DATES: This rule is effective June 15, Grand Rapids, MI, Gerald R. Ford Intl, (GPS) RWY 4, Orig 2009. The compliance date for each Takeoff Minimums and Obstacle DP, Amdt Newberry, SC, Newberry County, RNAV 2 (GPS) RWY 22, Orig SIAP, associated Takeoff Minimums, Grand Rapids, MI, Gerald R. Ford Intl, VOR Memphis, TN, Memphis Intl, ILS OR LOC and ODP is specified in the amendatory RWY 35, Amdt 1 RWY 18R, Amdt 14 provisions. Maryville, MO, Northwest Missouri Rgnl, Memphis, TN, Memphis Intl, RNAV (GPS) Z The incorporation by reference of RNAV (GPS) RWY 14, Orig RWY 18C, Amdt 2 certain publications listed in the

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regulations is approved by the Director The large number of SIAPs, their body of technical regulations for which of the Federal Register as of June 15, complex nature, and the need for a frequent and routine amendments are 2009. special format make their verbatim necessary to keep them operationally ADDRESSES: Availability of matter publication in the Federal Register current. It, therefore— (1) is not a incorporated by reference in the expensive and impractical. Further, ‘‘significant regulatory action’’ under amendment is as follows: airmen do not use the regulatory text of Executive Order 12866; (2) is not a For Examination— the SIAPs, but refer to their graphic ‘‘significant rule’’ under DOT regulatory 1. FAA Rules Docket, FAA depiction on charts printed by Policies and Procedures (44 FR 11034; Headquarters Building, 800 publishers of aeronautical materials. February 26, 1979); and (3) does not Independence Avenue, SW., Thus, the advantages of incorporation warrant preparation of a regulatory Washington, DC 20591; by reference are realized and evaluation as the anticipated impact is 2. The FAA Regional Office of the publication of the complete description so minimal. For the same reason, the region in which the affected airport is of each SIAP contained in FAA form FAA certifies that this amendment will located; documents is unnecessary. This not have a significant economic impact 3. The National Flight Procedures amendment provides the affected CFR on a substantial number of small entities Office, 6500 South MacArthur Blvd., sections and specifies the types of SIAP under the criteria of the Regulatory Oklahoma City, OK 73169 or and the corresponding effective dates. Flexibility Act. 4. The National Archives and Records This amendment also identifies the List of Subjects in 14 CFR Part 97 Administration (NARA). For airport and its location, the procedure information on the availability of this and the amendment number. Air Traffic Control, Airports, material at NARA, call 202–741–6030, The Rule Incorporation by reference, and or go to: http://www.archives.gov/ Navigation (Air). federal_register/ This amendment to 14 CFR part 97 is code_of_federal_regulations/ Issued in Washington, DC, on May 29, effective upon publication of each 2009. ibr_locations.html. separate SIAP as amended in the John M. Allen, Availability—All SIAPs are available transmittal. For safety and timeliness of online free of charge. Visit http:// change considerations, this amendment Director, Flight Standards Service. nfdc.faa.gov to register. Additionally, incorporates only specific changes Adoption of the Amendment individual SIAP and Takeoff Minimums contained for each SIAP as modified by and ODP copies may be obtained from: FDC/P–NOTAMs. ■ Accordingly, pursuant to the authority 1. FAA Public Inquiry Center (APA– The SIAPs, as modified by FDC P– delegated to me, Title 14, Code of 200), FAA Headquarters Building, 800 NOTAM, and contained in this Federal regulations, Part 97, 14 CFR part Independence Avenue, SW., amendment are based on the criteria 97, is amended by amending Standard Washington, DC 20591; or contained in the U.S. Standard for Instrument Approach Procedures, 2. The FAA Regional Office of the Terminal Instrument Procedures effective at 0901 UTC on the dates region in which the affected airport is (TERPS). In developing these changes to specified, as follows: located. SIAPs, the TERPS criteria were applied FOR FURTHER INFORMATION CONTACT: only to specific conditions existing at PART 97—STANDARD INSTRUMENT Harry J. Hodges, Flight Procedure the affected airports. All SIAP APPROACH PROCEDURES Standards Branch (AFS–420) Flight amendments in this rule have been ■ Technologies and Programs Division, previously issued by the FAA in a FDC 1. The authority citation for part 97 Flight Standards Service, Federal NOTAM as an emergency action of continues to read as follows: Aviation Administration, Mike immediate flight safety relating directly Authority: 49 U.S.C. 106(g), 40103, 40106, Monroney Aeronautical Center, 6500 to published aeronautical charts. The 40113, 40114, 40120, 44502, 44514, 44701, South MacArthur Blvd., Oklahoma City, circumstances which created the need 44719, 44721–44722. OK 73169 (Mail Address: P.O. Box for all these SIAP amendments requires ■ 2. Part 97 is amended to read as 25082, Oklahoma City, OK 73125) making them effective in less than 30 follows: telephone: (405) 954–4164. days. SUPPLEMENTARY INFORMATION: This rule Because of the close and immediate §§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, amends Title 14, Code of Federal relationship between these SIAPs and and 97.35 [Amended] Regulations, Part 97 (14 CFR part 97) by safety in air commerce, I find that notice By amending: § 97.23 VOR, VOR/ amending the referenced SIAPs. The and public procedure before adopting DME, VOR or TACAN, and VOR/DME complete regulatory description of each these SIAPs are impracticable and or TACAN; § 97.25 LOC, LOC/DME, SIAP is listed on the appropriate FAA contrary to the public interest and, LDA, LDA/DME, SDF, SDF/DME; Form 8260, as modified by the National where applicable, that good cause exists § 97.27 NDB, NDB/DME; § 97.29 ILS, Flight Data Center (FDC)/Permanent for making these SIAPs effective in less ILS/DME, MLS, MLS/DME, MLS/RNAV; Notice to Airmen (P–NOTAM), and is than 30 days. § 97.31 RADAR SIAPs; § 97.33 RNAV incorporated by reference in the SIAPs; and § 97.35 COPTER SIAPs, amendment under 5 U.S.C. 552(a), 1 Conclusion Identified as follows: CFR part 51, and § 97.20 of Title 14 of The FAA has determined that this the Code of Federal Regulations. regulation only involves an established * * * Effective Upon Publication

FDC date State City Airport FDC No. Subject

05/14/09 ...... CA AVALON ...... CATALINA ...... 9/9066 VOR/DME OR GPS–B, AMDT 2A. 05/14/09 ...... CA AVALON ...... CATALINA ...... 9/9067 VOR OR GPS–A, AMDT 4A. 05/15/09 ...... CA OAKDALE ...... OAKDALE ...... 9/0226 VOR–A, ORIG. 05/15/09 ...... CA OAKDALE ...... OAKDALE ...... 9/0227 RNAV (GPS) RWY 28, ORIG. 05/15/09 ...... CA OAKDALE ...... OAKDALE ...... 9/0228 RNAV (GPS) RWY 10, ORIG.

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FDC date State City Airport FDC No. Subject

05/26/09 ...... AZ PHOENIX ...... PHOENIX SKY HARBOR INTL ...... 9/0233 ILS OR LOC RWY 25L, AMDT 1C. 05/26/09 ...... CA PALO ALTO ..... PALO ALTO ARPT OF SANTA CLARA 9/0236 VOR/DME RWY 31, ORIG–A. CO.

[FR Doc. E9–13874 Filed 6–12–09; 8:45 am] and the Government Printing Office’s exemptions for firefighters under any BILLING CODE 4910–13–P Web page at: http:// circumstances. In his opinion, the www.access.gpo.gov/nara. requirements contained in 23 CFR 634 should, in the interest of safety, apply Background DEPARTMENT OF TRANSPORTATION to all firefighters all the time. Prior to The FHWA published an Interim the issuance of this Interim Final Rule, Federal Highway Administration Final Rule on 23 CFR Part 634 on the FHWA was made aware of several November 21, 2008, at 73 FR 70593. competing safety issues that could 23 CFR Part 634 Interested persons were invited to develop under certain conditions with submit comments to FHWA Docket No. the high visibility garments that are [FHWA Docket No. FHWA–2008–0157] FHWA–2008–0157. The Interim Final currently available, such as having the Rule revised existing regulations to RIN 2125–AF28 background material either catch fire or address safety concerns raised by the melt when exposed directly to fire. The Worker Visibility firefighting community in order to FHWA, therefore, did issue the provide an exemption for firefighters exemption for firefighters and other AGENCY: Federal Highway actively engaged in emergency emergency workers when they are Administration (FHWA), DOT. operations where they are directly working under the conditions ACTION: Final rule. exposed to flame, fire, heat and/or specifically listed in the Interim Final hazardous materials. This rule has been Rule. This exemption should provide a SUMMARY: The FHWA adopts as final an in effect since November 24, 2008. balance of increasing the visibility of the Interim Final Rule that amends its Summary of Comments workers under most conditions, but not regulations to address safety concerns create a condition that could endanger The FHWA received three comments raised by the firefighting community them with other hazards. regarding high-visibility safety apparel. to the docket from private individuals. The purpose of adopting the Interim The first commenter expressed his Conclusion Final Rule as final is to reflect the opinion that a statement contained in For the reasons stated above, the exemption of firefighters from the the background information of the FHWA adopts as final the Interim Final requirement to use high-visibility safety Interim Rule created confusion and the Rule published on November 21, 2008, apparel, as defined in this rule, when false impression that a firefighter does at 73 FR 70593. they are exposed to hazardous not need to comply with the regulation Rulemaking Analyses and Notices conditions where the use of such if he is wearing an NFPA 1971 standard apparel may increase the risk of injury compliant garment. He recommended Executive Order 12866 (Regulatory to firefighter personnel. that this language be clarified to ensure Planning and Review) and DOT the rule is interpreted correctly by all DATES: Effective Date: June 15, 2009. firefighters. The FHWA disagrees with Regulatory Policies and Procedures The interim rule became effective this comment. The background The FHWA has determined that this November 24, 2008. information was included to justify the final rule is not a significant regulatory FOR FURTHER INFORMATION CONTACT: For issuance of the Interim Final Rule due action within the meaning of Executive technical information: Mr. Hari Kalla, to safety concerns expressed by the Order 12866 and is not significant Office of Transportation Operations, firefighting community. However, the within the meaning of U.S. Department (202) 366–5915. For legal information: language in the Interim Final Rule is of Transportation regulatory policies Mr. Raymond Cuprill, Office of Chief accurate and does not require and procedures. The economic impact Counsel, (202) 366–0791, Federal modification. of this rulemaking will be minimal. The Highway Administration, 1200 New The second commenter supported the final rule would not adversely affect, in Jersey Avenue, SE., Washington, DC concept of the Interim Final Rule, but a material way, any sector of the 20590–0001. Office hours are from 7:45 also expressed concern about the economy. In addition, the final rule a.m. to 4:15 p.m., e.t., Monday through confusion that has resulted from the would not interfere with any action Friday, except Federal holidays. existence of several standards for high taken or planned by another agency and SUPPLEMENTARY INFORMATION: visibility garments and how they are would not materially alter the budgetary being referenced in this rulemaking as Electronic Access and Filing impact of any entitlements, grants, user well as a separate rulemaking in Docket fees, or loan programs. Consequently, a This document, the Interim Final No. FHWA–2007–28977. This full regulatory evaluation is not Rule, and all comments received may be rulemaking proposes to revise the 2003 required. viewed online through http:// edition of the Manual on Uniform www.regulations.gov. Electronic Traffic Control Devices. This comment Regulatory Flexibility Act submission and retrieval help and does not require any response to this In compliance with the Regulatory guidelines are available on the Web site. docket, but rather it will be considered Flexibility Act (Pub. L. 96–354, 5 U.S.C. It is available 24 hours each day, 365 in the analysis of comments to Docket 601–612) the FHWA has evaluated the days each year. An electronic copy of No. FHWA–2007–28977. effects of this action on small entities this document may also be downloaded The third commenter expressed the and has determined that the action from the Office of the Federal Register’s opinion that the Interim Final Rule would not have a significant economic home page at: http://www.archives.gov should not have provided any impact on a substantial number of small

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entities. This action does not affect any of information requirements for the Issued on: May 14, 2009. funding distributed under any of the purposes of the PRA. Jeffrey F. Paniati, programs administered by the FHWA. Executive Order 12988 (Civil Justice Acting Deputy Federal Highway For these reasons, the FHWA certifies Administrator. Reform) that this action would not have a [FR Doc. E9–13988 Filed 6–12–09; 8:45 am] significant economic impact on a This action meets applicable BILLING CODE 4910–22–P substantial number of small entities. standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Unfunded Mandates Reform Act of 1995 Reform, to minimize litigation, PENSION BENEFIT GUARANTY This final rule would not impose eliminate ambiguity, and reduce CORPORATION unfunded mandates as defined by the burden. Unfunded Mandates Reform Act of 1995 Executive Order 13045 (Protection of 29 CFR Parts 4022 and 4044 (Pub. L. 104–4, 109 Stat. 48). This rule Children) would not result in the expenditure by Allocation of Assets in Single- State, local, and tribal governments, in The FHWA has analyzed this rule Employer Plans; Benefits Payable in the aggregate, or by the private sector, of under Executive Order 13045, Terminated Single-Employer Plans; $128.1 million or more in any one year Protection of Children from Interest Assumptions for Valuing and (2 U.S.C. 1532). Environmental Health Risks and Safety Paying Benefits Risks. The FHWA certifies that this AGENCY: Executive Order 13132 (Federalism action would not cause any Pension Benefit Guaranty Corporation. Assessment) environmental risk to health or safety This action has been analyzed in that might disproportionately affect ACTION: Final rule. accordance with the principles and children. SUMMARY: Pension Benefit Guaranty criteria contained in Executive Order Executive Order 12630 (Taking of Corporation’s regulations on Allocation 13132, and the FHWA has determined Private Property) of Assets in Single-Employer Plans and that this action would not have Benefits Payable in Terminated Single- sufficient federalism implications to The FHWA has analyzed this rule Employer Plans prescribe interest warrant the preparation of a federalism under Executive Order 12630, assumptions for valuing and paying assessment. The FHWA has also Governmental Actions and Interface certain benefits under terminating determined that this action would not with Constitutionally Protected Property single-employer plans. This final rule preempt any State law or State Rights. The FHWA does not anticipate amends the asset allocation regulation regulation or affect the States’ ability to that this action would affect a taking of to adopt interest assumptions for plans discharge traditional State governmental private property or otherwise have with valuation dates in the third quarter functions. taking implications under Executive of 2009 and amends the benefit Order 12630. Executive Order 13211 (Energy Effects) payments regulation to adopt interest National Environmental Policy Act assumptions for plans with valuation We have analyzed this action under dates in July 2009. Interest assumptions Executive Order 13211, Actions The agency has analyzed this action for the purpose of the National are also published on PBGC’s Web site Concerning Regulations That (http://www.pbgc.gov). Significantly Affect Energy Supply, Environmental Policy Act of 1969 (42 DATES: Effective July 1, 2009. Distribution, or Use, dated May 18, U.S.C. 4321–4347) and has determined 2001. We have determined that it is not that this action would not have any FOR FURTHER INFORMATION CONTACT: a significant energy action under that effect on the quality of the environment. Catherine B. Klion, Manager, Regulatory and Policy Division, Legislative and order since it is not likely to have a Regulation Identification Number significant adverse effect on the supply, Regulatory Department, Pension Benefit distribution, or use of energy. Therefore, A regulation identification number Guaranty Corporation, 1200 K Street, a Statement of Energy Effects is not (RIN) is assigned to each regulatory NW., Washington, DC 20005, 202–326– required. action listed in the Unified Agenda of 4024. (TTY/TDD users may call the Federal Regulations. The Regulatory Federal relay service toll-free at 1–800– Executive Order 12372 Information Service Center publishes 877–8339 and ask to be connected to (Intergovernmental Review) the Unified Agenda in April and 202–326–4024.) Catalog of Federal Domestic October of each year. The RIN contained SUPPLEMENTARY INFORMATION: PBGC’s Assistance Program Number 20.205, in the heading of this document can be regulations prescribe actuarial Highway Planning and Construction. used to cross reference this action with assumptions—including interest The regulations implementing Executive the Unified Agenda. assumptions—for valuing and paying Order 12372 regarding List of Subjects in 23 CFR Part 634 plan benefits of terminating single- intergovernmental consultation on employer plans covered by title IV of Federal programs and activities apply to Design standards, Highways and the Employee Retirement Income this program. roads, incorporation by reference, Security Act of 1974. The interest Traffic regulations, Workers. assumptions are intended to reflect Paperwork Reduction Act ■ In consideration of the foregoing, and current conditions in the financial and Under the Paperwork Reduction Act under the authority of 23 U.S.C. 101(a), annuity markets. of 1995 (PRA) (44 U.S.C. 3501), Federal 109(d), 114(a), 315, and 402(a); Sec. These interest assumptions are found agencies must obtain approval from the 1402 of Pub. L. 109–59; 23 CFR 1.32; in two PBGC regulations: the regulation Office of Management and Budget for and 49 CFR 1.48(b), the Interim Final on Allocation of Assets in Single- each collection of information they Rule amending 23 CFR Part 634 that Employer Plans (29 CFR part 4044) and conduct, sponsor, or require through was published on November 21, 2008 at the regulation on Benefits Payable in regulations. The FHWA has determined 73 FR 70593, is adopted as a final rule Terminated Single-Employer Plans (29 that this rule does not contain collection without change. CFR part 4022). Assumptions under the

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asset allocation regulation are updated methodology for valuation dates during finds that good cause exists for making quarterly; assumptions under the benefit July 2009. the assumptions set forth in this payments regulation are updated The interest assumptions that PBGC amendment effective less than 30 days monthly. This final rule updates the will use for valuing benefits for after publication. assumptions under the asset allocation allocation purposes (set forth in PBGC has determined that this action regulation for the third quarter (July Appendix B to part 4044) will be 5.31 is not a ‘‘significant regulatory action’’ through September) of 2009 and updates percent for the first 20 years following under the criteria set forth in Executive the assumptions under the benefit the valuation date and 5.04 percent Order 12866. payments regulation for July 2009. thereafter. By comparison with the Because no general notice of proposed interest assumptions in effect for the The interest assumptions prescribed rulemaking is required for this second quarter of 2009, these interest amendment, the Regulatory Flexibility under the asset allocation regulation assumptions represent a decrease of (found in Appendix B to Part 4044) are Act of 1980 does not apply. See 5 U.S.C. 0.19 percent for the first 20 years 601(2). used for the valuation of benefits for following the valuation date and an allocation purposes under ERISA increase of 0.02 percent for all years List of Subjects section 4044. Two sets of interest thereafter. 29 CFR Part 4022 assumptions are prescribed under the The interest assumptions that PBGC benefit payments regulation: (1) A set will use for its own lump-sum payments Employee benefit plans, Pension for PBGC to use to determine whether (set forth in Appendix B to part 4022) insurance, Pensions, Reporting and a benefit is payable as a lump sum and will be 3.75 percent for the period recordkeeping requirements. to determine lump-sum amounts to be during which a benefit is in pay status 29 CFR Part 4044 paid by PBGC (found in Appendix B to and 4.00 percent during any years Part 4022), and (2) a set for private- preceding the benefit’s placement in pay Employee benefit plans, Pension sector pension practitioners to refer to if status. These interest assumptions insurance, Pensions. they wish to use lump-sum interest rates represent no change from those in effect ■ In consideration of the foregoing, 29 determined using PBGC’s historical for June 2009. For private-sector CFR parts 4022 and 4044 are amended methodology (found in Appendix C to payments, the interest assumptions (set as follows: Part 4022). forth in Appendix C to part 4022) will be the same as those used by PBGC for PART 4022—BENEFITS PAYABLE IN This amendment (1) adds to determining and paying lump sums (set Appendix B to Part 4044 the interest TERMINATED SINGLE-EMPLOYER forth in Appendix B to part 4022). PLANS assumptions for valuing benefits for PBGC has determined that notice and allocation purposes in plans with public comment on this amendment are ■ 1. The authority citation for part 4022 valuation dates during the third quarter impracticable and contrary to the public continues to read as follows: (July through September) of 2009, (2) interest. This finding is based on the adds to Appendix B to Part 4022 the Authority: 29 U.S.C. 1302, 1322, 1322b, need to determine and issue new 1341(c)(3)(D), and 1344. interest assumptions for PBGC to use for interest assumptions promptly so that its own lump-sum payments in plans the assumptions can reflect current ■ 2. In appendix B to part 4022, Rate Set with valuation dates during July 2009, market conditions as accurately as 189, as set forth below, is added to the and (3) adds to Appendix C to Part 4022 possible. table. the interest assumptions for private- Because of the need to provide sector pension practitioners to refer to if immediate guidance for the valuation Appendix B to Part 4022—Lump Sum they wish to use lump-sum interest rates and payment of benefits in plans with Interest Rates for PBGC Payments determined using PBGC’s historical valuation dates during July 2009, PBGC * * * * *

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For plans with a valuation Immediate Deferred annuities (percent) Rate set date annuity rate

On or after Before (percent) i1 i2 i3 n1 n2

******* 189 7–1–09 8–1–09 3.75 4.00 4.00 4.00 7 8

■ 3. In appendix C to part 4022, Rate Set Appendix C to Part 4022—Lump Sum 189, as set forth below, is added to the Interest Rates for Private-Sector table. Payments * * * * *

For plans with a valuation Immediate Deferred annuities (percent) Rate set date annuity rate i i n n On or after Before (percent) i1 2 3 1 2

******* 189 7–1–09 8–1–09 3.75 4.00 4.00 4.00 7 8

PART 4044—ALLOCATION OF Authority: 29 U.S.C. 1301(a), 1302(b)(3), Appendix B to Part 4044—Interest ASSETS IN SINGLE–EMPLOYER 1341, 1344, 1362. Rates Used To Value Benefits PLANS ■ 5. In appendix B to part 4044, a new * * * * * entry for July–September 2009, as set ■ 4. The authority citation for part 4044 continues to read as follows: forth below, is added to the table.

The values of it are: For valuation dates occurring in the months— it for t = it for t = it for t =

******* July–September 2009 ...... 0.0531 1–20 0.0504 >20 N/A N/A

Issued in Washington, DC, on this 9th day Menominee River during a vessel Monday through Friday, except Federal of June 2009. launching. This temporary safety zone is holidays. Vincent K. Snowbarger, necessary to protect the surrounding FOR FURTHER INFORMATION CONTACT: If Acting Director, Pension Benefit Guaranty public and vessels from the hazards you have questions on this temporary Corporation. associated with the vessel launching. rule, contact Petty Officer Kraft, U.S. [FR Doc. E9–14003 Filed 6–12–09; 8:45 am] DATES: This rule is effective from 10:45 Coast Guard Sector Lake Michigan; BILLING CODE 7709–01–P a.m. until 12:15 p.m. on June 26, 2009. telephone 414–747–7154, e-mail ADDRESSES: Documents indicated in this [email protected]. If you have preamble as being available in the questions on viewing the docket, call DEPARTMENT OF HOMELAND docket are part of docket USCG–2009– Renee V. Wright, Program Manager, SECURITY 0462 and are available Online by going Docket Operations, telephone 202–366– to http://www.regulations.gov, selecting 9826. Coast Guard the Advanced Docket Search option on SUPPLEMENTARY INFORMATION: the right side of the screen, inserting 33 CFR Part 165 USCG–2009–0462 in the Docket ID box, Regulatory Information [Docket No. USCG–2009–0462] pressing Enter, and then clicking on the The Coast Guard is issuing this item in the Docket ID column. They are temporary final rule without prior RIN 1625–AA00 also available for inspection or copying notice and opportunity to comment at two locations: The Docket pursuant to authority under section 4(a) Safety Zone; Marinette Marine Vessel Management Facility (M–30), U.S. of the Administrative Procedure Act Launch, Marinette, WI Department of Transportation, West (APA) (5 U.S.C. 553(b)). This provision AGENCY: Coast Guard, DHS. Building Ground Floor, Room W12–140, authorizes an agency to issue a rule ACTION: Temporary final rule. 1200 New Jersey Avenue, SE., without prior notice and opportunity to Washington, DC 20590, between 9 a.m. comment when an agency for good SUMMARY: The Coast Guard is and 5 p.m., Monday through Friday, cause finds that those procedures are establishing a temporary safety zone on except Federal holidays, and the U.S. ‘‘impracticable, unnecessary, or contrary Menominee River near Marinette, Coast Guard Sector Lake Michigan, 2420 to the public interest.’’ Under U.S.C. Wisconsin. This zone is intended to S. Lincoln Memorial Drive, Milwaukee, 553(b)(B), the Coast Guard finds that restrict vessels from a portion of the WI 53110, between 7 a.m. and 3:30 p.m., good cause exists for not publishing a

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notice of proposed rulemaking (NPRM) Order. The Office of Management and 888–REG–FAIR (1–888–734–3247). The with respect to this rule because it is in Budget has not reviewed it under that Coast Guard will not retaliate against the best interest of the public to ensure, Order. small entities that question or complain to the extent practicable, the safety of This determination is based on the about this rule or any policy or action vessels and spectators from the hazards minimal time that vessels will be of the Coast Guard. associated with the launch of the restricted from the zone and the zone is Collection of Information Marinette. an area where the Coast Guard expects For those same reasons, under 5 insignificant adverse impact to mariners This rule calls for no new collection U.S.C. 553(d)(3), the Coast Guard finds from the zones’ activation. of information under the Paperwork that good cause exists for making this Small Entities Reduction Act of 1995 (44 U.S.C. 3501– rule effective less than 30 days after 3520). publication in the Federal Register. Under the Regulatory Flexibility Act (5 U.S.C. 601–612), we have considered Federalism Background and Purpose whether this rule will have a significant A rule has implications for This temporary safety zone is economic impact on a substantial Federalism under Executive Order necessary to ensure, to the extent number of small entities. The term 13132, Federalism, if it has a substantial practicable, the safety of the public and ‘‘small entities’’ comprises small direct effect on State or local vessels from the hazards associated with businesses, not-for-profit organizations governments and would either preempt the vessel launching. The Captain of the that are independently owned and State law or impose a substantial direct Port Sector Lake Michigan has operated and are not dominant in their cost of compliance on them. We have determined that the launching of the fields, and governmental jurisdictions analyzed this rule under that Order and vessel does pose significant risks to with populations of less than 50,000. have determined that it does not have public safety and property. The likely The Coast Guard certifies under 5 implications for Federalism. combination of small recreational U.S.C. 605(b) that this rule will not have Unfunded Mandates Reform Act boaters and the large wake created by a significant economic impact on a the vessel launch could easily result in substantial number of small entities. The Unfunded Mandates Reform Act serious injuries or fatalities. This rule will affect the following of 1995 (2 U.S.C. 1531–1538) requires entities, some of which might be small Federal agencies to assess the effects of Discussion of Rule entities: The owners or operators of their discretionary regulatory actions. In The temporary safety zone will vessels intending to transit or anchor in particular, the Act addresses actions encompass all water of the Menominee a portion of the Menominee River, that may result in the expenditure by a River surrounding the Marinette Marine Marinette WI between 10:45 a.m. and State, local, or tribal government, in the Corporation piers and bounded by a line 12:15 p.m. on June 26, 2009. aggregate, or by the private sector of with a point of origin at 45°05′57″ N, This safety zone will not have a $100,000,000 or more in any one year. 087°36′0.3″ W; then northeast to significant economic impact on a Though this rule will not result in such 45°06′00″ N, 087°36′48.3″ W; then substantial number of small entities for expenditure, we do discuss the effects of northwest to 45°06′04.4″ N, 087°37′09.2″ the following reasons: This rule will this rule elsewhere in this preamble. W; then west to 45°06′04.5″ N, only be enforced while unsafe Taking of Private Property 087°37′14″ W; then southwest to conditions exist. In the event that this 45°06′02.8″ N, 087°37′15″ W; then temporary safety zone affects shipping, This rule will not affect a taking of southeast following the shoreline back commercial vessels may request private property or otherwise have to the point of origin (NAD 83). permission from the Captain of The Port taking implications under Executive All persons and vessels shall comply Sector Lake Michigan to transit through Order 12630, Governmental Actions and with the instructions of the Coast Guard the safety zone. The Coast Guard will Interference with Constitutionally Captain of the Port or the on-scene give notice to the public via a Broadcast Protected Property Rights. representative. Entry into, transiting, or to Mariners that the regulation is in Civil Justice Reform anchoring within the safety zone is effect. This rule meets applicable standards prohibited unless authorized by the Assistance for Small Entities Captain of the Port Sector Lake in sections 3(a) and 3(b)(2) of Executive Michigan or his on-scene representative. Under section 213(a) of the Small Order 12988, Civil Justice Reform, to The Captain of the Port or his on-scene Business Regulatory Enforcement minimize litigation, eliminate representative may be contacted via Fairness Act of 1996 (Pub. L. 104–121), ambiguity, and reduce burden. VHF Channel 16. we offer to assist small entities in understanding the rule so they may Protection of Children Regulatory Analyses better evaluate its effects on them and We have analyzed this rule under We developed this rule after participate in the rulemaking process. Executive Order 13045, Protection of considering numerous statutes and Small businesses may send comments Children from Environmental Health executive orders related to rulemaking. on the actions of Federal employees Risks and Safety Risks. This rule is not Below we summarize our analyses who enforce, or otherwise determine an economically significant rule and based on 13 of these statutes or compliance with, Federal regulations to does not concern an environmental risk executive orders. the Small Business and Agriculture to health or risk to safety that may Regulatory Enforcement Ombudsman disproportionately affect children. Regulatory Planning and Review and the Regional Small Business This rule is not a ‘‘significant Regulatory Fairness Boards. The Indian Tribal Governments regulatory action’’ under section 3(f) of Ombudsman evaluates these actions The Coast Guard recognizes the treaty Executive Order 12866, Regulatory annually and rates each agency’s rights of Native American Tribes. Planning and Review, and does not responsiveness to small business. If you Moreover, the Coast Guard is committed require an assessment of potential costs wish to comment on actions by to working with Tribal Governments to and benefits under section 6(a)(3) of that employees of the Coast Guard, call 1– implement local policies and to mitigate

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tribal concerns. We have determined which guide the Coast Guard in Captain of the Port Sector Lake that these regulations and fishing rights complying with the National Michigan or his on-scene representative. protection need not be incompatible. Environmental Policy Act of 1969 (2) This safety zone is closed to all We have also determined that this Rule (NEPA) (42 U.S.C. 4321–4370f), and vessel traffic, except as may be does not have tribal implications under have concluded this action is one of a permitted by the Captain of the Port Executive Order 13175, Consultation category of actions which do not Sector Lake Michigan or his on-scene and Coordination with Indian Tribal individually or cumulatively have a representative. Any person in a safety Governments, because it does not have significant effect on the human zone who has notice of a lawful order a substantial direct effect on one or environment. This rule is categorically or direction shall obey the order or more Indian tribes, on the relationship excluded, under figure 2–1, paragraph direction of the Captain of the Port or between the Federal Government and (34)(g) because this rule is for the his on-scene representative. Indian tribes, or on the distribution of establishment of a safety zone. (3) The ‘‘on-scene representative’’ of power and responsibilities between the The final environmental analysis the Captain of the Port is any Coast Federal Government and Indian tribes. check list and categorical exclusion Guard commissioned, warrant or petty Nevertheless, Indian Tribes that have determination are available in the officer who has been designated by the questions concerning the provisions of docket where indicated under Captain of the Port to act on his behalf. this Rule or options for compliance are ADDRESSES. The on-scene representative of the encouraged to contact the point of Captain of the Port will be aboard either contact listed under FOR FURTHER List of Subjects in 33 CFR Part 165 a Coast Guard or Coast Guard Auxiliary INFORMATION CONTACT. Harbors, Marine safety, Navigation vessel. (4) Vessel operators desiring to enter Energy Effects (water), Reporting and recordkeeping requirements, Security measures, or operate within the safety zone shall We have analyzed this rule under Waterways. contact the Captain of the Port Sector Executive Order 13211, Actions ■ Lake Michigan or his on-scene Concerning Regulations That For the reasons discussed in the representative to obtain permission to Significantly Affect Energy Supply, preamble, the Coast Guard amends 33 do so. The Captain of the Port or his on- Distribution, or Use. We have CFR part 165 as follows: scene representative may be contacted determined that it is not a ‘‘significant PART 165—REGULATED NAVIGATION via VHF Channel 16. Vessel operators energy action’’ under that order because AREAS AND LIMITED ACCESS AREAS given permission to enter or operate in it is not a ‘‘significant regulatory action’’ the safety zone must comply with all under Executive Order 12866 and is not ■ 1. The authority citation for part 165 directions given to them by the Captain likely to have a significant adverse effect continues to read as follows: of the Port Sector Lake Michigan or his on the supply, distribution, or use of Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. on-scene representative. energy. The Administrator of the Office Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; of Information and Regulatory Affairs 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Dated: June 1, 2009. has not designated it as a significant Pub. L. 107–295, 116 Stat. 2064; Department B.C. Jones, energy action. Therefore, it does not of Homeland Security Delegation No. 0170.1. require a Statement of Energy Effects Captain, U.S. Coast Guard, Captain of the under Executive Order 13211. ■ 2. A add temporary § 165.T09–0462 to Port Sector Lake Michigan. read as follows: [FR Doc. E9–13888 Filed 6–12–09; 8:45 am] Technical Standards BILLING CODE 4910–15–P The National Technology Transfer § 165.T09–0462 Safety Zone; Marinette Marine Vessel Launch, Marinette, and Advancement Act (NTTAA) (15 Wisconsin. U.S.C. 272 note) directs agencies to use DEPARTMENT OF HOMELAND voluntary consensus standards in their (a) Location. All water of the SECURITY regulatory activities unless the agency Menominee River surrounding the provides Congress, through the Office of Marinette Marine Corporation piers and Coast Guard bounded by a line with a point of origin Management and Budget, with an ° ′ ″ ° ′ ″ explanation of why using these at 45 05 57 N, 087 36 50.3 W; then 33 CFR Part 165 northeast to 45°06′00″ N, 087°36′48.3″ standards would be inconsistent with ° ′ ″ [Docket No. USCG–2009–0465] applicable law or otherwise impractical. W; then northwest to 45 06 04.4 N, 087°37′09.2″ W; then west to RIN 1625–AA00 Voluntary consensus standards are ° ′ ″ ° ′ ″ technical standards (e.g., specifications 45 06 04.5 N, 087 37 14 W; then southwest to 45°06′02.8″ N, 087°37′15″ Safety Zone; Chicago Harbor, Navy of materials, performance, design, or Pier Southeast, Chicago, IL operation; test methods; sampling W; then southeast following the procedures; and related management shoreline back to the point of origin. AGENCY: Coast Guard, DHS. systems practices) that are developed or (NAD 83). ACTION: Notice of enforcement of adopted by voluntary consensus (b) Enforcement period. This regulation. standards bodies. regulation will be enforced from 10:45 This rule does not use technical a.m. until 12:15 p.m. on June 26, 2009. SUMMARY: The Coast Guard will enforce standards. Therefore, we did not The Captain of the Port Sector Lake the Navy Pier Southeast Safety Zone in consider the use of voluntary consensus Michigan or the on-scene Patrol Chicago Harbor during July 1, 2009 standards. Commander may terminate this through July 29, 2009. This action is operation at anytime. necessary to protect vessels and people Environment (c) Regulations. (1) In accordance with from the hazards associated with We have analyzed this rule under the general regulations in § 165.23 of fireworks displays. This safety zone will Department of Homeland Security this part, entry into, transiting, or restrict vessel traffic from a portion of Management Directive 023–01 and anchoring within this safety zone is the Captain of the Port Lake Michigan Commandant Instruction M16475.lD, prohibited unless authorized by the Zone.

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DATES: The regulations in 33 CFR DEPARTMENT OF HOMELAND management in floodprone areas in 165.931 will be enforced from July 1, SECURITY accordance with 44 CFR part 60. 2009 through July 29, 2009. Interested lessees and owners of real Federal Emergency Management FOR FURTHER INFORMATION CONTACT: If property are encouraged to review the Agency you have questions on this notice, call proof Flood Insurance Study and FIRM or e-mail BM2 Kraft, Prevention 44 CFR Part 67 available at the address cited below for Department, Coast Guard Sector Lake each community. The BFEs and Michigan, Milwaukee, WI; telephone [Docket ID FEMA–2008–0020] modified BFEs are made final in the (414) 747–7154, e-mail communities listed below. Elevations at [email protected]. Final Flood Elevation Determinations selected locations in each community SUPPLEMENTARY INFORMATION: AGENCY: Federal Emergency are shown. The Coast Guard will enforce the Management Agency, DHS. special local regulation for the Safety National Environmental Policy Act. ACTION: Final rule. Zone; Chicago Harbor, Navy Pier This final rule is categorically excluded Southeast, Chicago, IL, 33 CFR 165.931 SUMMARY: Base (1% annual-chance) from the requirements of 44 CFR part for the following events: Flood Elevations (BFEs) and modified 10, Environmental Consideration. An (1) Navy Pier Wednesday Fireworks BFEs are made final for the environmental impact assessment has on July 1, 2009 from 9:15 p.m. through communities listed below. The BFEs not been prepared. 9:45 p.m.; on July 8, 2009 from 9:15 and modified BFEs are the basis for the Regulatory Flexibility Act. As flood p.m. through 9:45 p.m.; on July 15, 2009 floodplain management measures that elevation determinations are not within from 9:15 p.m. through 9:45 p.m.; on each community is required either to the scope of the Regulatory Flexibility July 22, 2009 from 9:15 p.m. through adopt or to show evidence of being Act, 5 U.S.C. 601–612, a regulatory 9:45 p.m.; on July 29, 2009 from 9:15 already in effect in order to qualify or flexibility analysis is not required. p.m. through 9:45 p.m.; remain qualified for participation in the Regulatory Classification. This final (2) Navy Pier Saturday Fireworks on National Flood Insurance Program July 04, 2009 from 8:45 p.m. through (NFIP). rule is not a significant regulatory action 9:30 p.m.; on July 11, 2009 from 10 p.m. under the criteria of section 3(f) of through 10:40 p.m.; on July 18, 2009 DATES: The date of issuance of the Flood Executive Order 12866 of September 30, from 10 p.m. through 10:40 p.m. Insurance Rate Map (FIRM) showing 1993, Regulatory Planning and Review, All vessels must obtain permission BFEs and modified BFEs for each 58 FR 51735. from the Captain of the Port or his on- community. This date may be obtained scene representative to enter, move by contacting the office where the maps Executive Order 13132, Federalism. within or exit the safety zone. Vessels are available for inspection as indicated This final rule involves no policies that and persons granted permission to enter on the table below. have federalism implications under the safety zone shall obey all lawful ADDRESSES: The final BFEs for each Executive Order 13132. orders or directions of the Captain of the community are available for inspection Executive Order 12988, Civil Justice Port or a designated representative. at the office of the Chief Executive Reform. This final rule meets the While within a safety zone, all vessels Officer of each community. The applicable standards of Executive Order shall operate at the minimum speed respective addresses are listed in the 12988. necessary to maintain a safe course. table below. This notice is issued under authority FOR FURTHER INFORMATION CONTACT: List of Subjects in 44 CFR Part 67 of 33 CFR 165.931 (72 FR 32520, June William R. Blanton Jr., Engineering Administrative practice and 13, 2007) and 5 U.S.C. 552(a). In Management Branch, Mitigation addition to this notice in the Federal procedure, Flood insurance, Reporting Directorate, Federal Emergency and recordkeeping requirements. Register, the Coast Guard will provide Management Agency, 500 C Street SW., the maritime community with advance Washington, DC 20472, (202) 646–3151. ■ Accordingly, 44 CFR part 67 is notification of these enforcement SUPPLEMENTARY INFORMATION: amended as follows: periods via Broadcast Notice to The Federal Emergency Management Agency Mariners or Local Notice to Mariners. PART 67—[AMENDED] The Captain of the Port will issue a (FEMA) makes the final determinations listed below for the modified BFEs for Broadcast Notice to Mariners notifying ■ each community listed. These modified 1. The authority citation for part 67 the public when enforcement of the continues to read as follows: safety zone established by this section is elevations have been published in suspended. The Captain of the Port may newspapers of local circulation and Authority: 42 U.S.C. 4001 et seq.; be contacted via U.S. Coast Guard ninety (90) days have elapsed since that Reorganization Plan No. 3 of 1978, 3 CFR, Sector Lake Michigan on channel 16, publication. The Assistant 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, VHF–FM. Administrator of the Mitigation 3 CFR, 1979 Comp., p. 376. Directorate has resolved any appeals Dated: June 2, 2009. resulting from this notification. § 67.11 [Amended] Bruce C. Jones, This final rule is issued in accordance ■ 2. The tables published under the Captain, U.S. Coast Guard, Captain of the with section 110 of the Flood Disaster authority of § 67.11 are amended as Port Lake Michigan. Protection Act of 1973, 42 U.S.C. 4104, follows: [FR Doc. E9–13890 Filed 6–12–09; 8:45 am] and 44 CFR part 67. FEMA has BILLING CODE 4910–15–P developed criteria for floodplain

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* Elevation in feet (NGVD) + Elevation in feet State City/town/county Source of flooding Location (NAVD) # Depth in feet above ground Modified

City of Radford, Virginia FEMA Docket No.: B–1012

Virginia ...... City of Radford ...... Plum Creek ...... Approximately 300 feet downstream of +1739 US Highway 11. Approximately at the upstream corporate +1782 limits for the City of Radford.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Radford Maps are available for inspection at the City of Radford Engineering Department, 619 2nd Street, Radford, VA 24141.

* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Archuleta County, Colorado, and Incorporated Areas FEMA Docket No.: B–1016

Stollsteimer Creek ...... 150 feet east of CR 700 Extension ...... +6783 Unincorporated Areas of Archuleta County. South of Hawthorne Drive and Highway 160 ...... +7023

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Archuleta County Maps are available for inspection at 449 San Juan Street, Pagosa Springs, CO 81147.

Orange County, Florida, and Incorporated Areas FEMA Docket No.: B–1000

Apache Lake ...... Bound by Arrowhead Boulevard to the north, Arrena Road +111 Unincorporated Areas of Or- to the west, Orange/Osceola county boundary to the ange County. south, and Strahan Boulevard to the east. Bear Bay ...... Bound by Hartzog Road to the north, Avalon Road to the +104 Unincorporated Areas of Or- west, Hartzog Road to the south and east. ange County. Border Lake ...... Entire shoreline ...... +77 City of Apopka. Cypress Creek ...... Approximately 1,580 feet downstream of Winter Garden +98 Unincorporated Areas of Or- Vineland Road. ange County. Approximately 2.6 miles upstream of Winter Garden Vine- +102 land Road. Doe Lake ...... Entire shoreline ...... +108 Unincorporated Areas of Or- ange County. Druid Lake ...... Bound by Chelsea Street to the north, North Bumby Ave- +104 City of Orlando. nue to the west, Seabee Street to the south, and Port Hueneme Avenue to the east. Flooding Effects from Han- Bound by Old YMCA Road to the north, Orange/Lake +110 Unincorporated Areas of Or- cock Lake (Lake County). county boundary to the west, Lake Star Road to the ange County. south, and Avalon Road to the east. Bound by Lake Ihrig to the north, Orange/Lake county +115 boundary to the west, Lake Star Road to the south, and Avalon Road to the east. Bound by Flemings Road to the north, Orange/Lake county +115 boundary to the west, County Road to the south, and Av- alon Road to the east. Flooding Effects from Bound by Unnamed Lake E to the north, Orange/Lake +106 Unincorporated Areas of Or- Sawgrass Bay (Lake Coun- county boundary to the west, Lake Ihrig to the south, and ange County. ty). Unnamed Lake I to the east.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Grass Lake ...... Bound by County Road to the north, Orange/Lake county +113 Unincorporated Areas of Or- boundary to the west, Bali Boulevard to the south, and ange County. Avalon Road to the east. Hickorynut Lake...... Bound by Old YMCA Road to the north, Orange/Lake +104 Unincorporated Areas of Or- county boundary to the west, Lake Star Road to the ange County. south, and Avalon Road to the east. Huckleberry Lake ...... Bound by Phil Ritson Way to the north, Avalon Road to the +97 Unincorporated Areas of Or- west, Seidel Road to the south, and Lake Hancock Road ange County. to the east. John Young Parkway Drain- Approximately 1,000 feet downstream of Mercy Drive ...... +89 Unincorporated Areas of Or- age Canal. ange County, City of Or- lando. Just downstream of North Texas Avenue ...... +94 Lake 74 ...... Bound by Canterclub Trail to the north, Haverlake Circle to +114 Unincorporated Areas of Or- the west, Orangehurst Street to the south, and Orange/ ange County. Seminole county boundary to the east. Lake Angel ...... Bound by 23rd Street to the north, S. Westmoreland Drive +104 Unincorporated Areas of Or- to the west, 26th Street to the south, and Interstate 4 to ange County, City of Or- the east. lando. Lake Austin ...... Entire shoreline ...... +113 Unincorporated Areas of Or- ange County. Lake Bessie ...... Entire shoreline ...... +101 Town of Windermere, Unin- corporated Areas of Or- ange County. Lake Blanche ...... Entire shoreline ...... +101 Unincorporated Areas of Or- ange County. Lake Britt ...... Bound by Hartzog Road to the north, Avalon Road to the +105 Unincorporated Areas of Or- west, and Hartzog Road to the south and east. ange County. Lake Burden ...... Bound by Chase Road to the north, Winter Garden Vine- +108 Unincorporated Areas of Or- land Road to the west and south, and Lake Tibet to the ange County. east. Lake Butler ...... Bound by Lake Butler Boulevard to the north, West Lake +101 Unincorporated Areas of Or- Butler Road to the west, Chase Road to the south, and ange County, Town of Main Street to the east. Windermere. Lake Cay Dee ...... Bound by Corrine Drive to the north, Falcon Drive to the +110 City of Orlando. west, Chelsea Street to the south, and Oriole Avenue to the east. Lake Chapin ...... Bound by Arrowhead Boulevard to the north, Avalon Road +111 Unincorporated Areas of Or- to the west, Interstate 192 to the south, and Arrena Road ange County. to the south. Lake Florence ...... Bound by Lake Florence to the north and west, Good +81 Unincorporated Areas of Or- Homes Road to the south and east. ange County, City of Ocoee. Lake Fran ...... Entire shoreline ...... +95 City of Orlando. Lake Gifford ...... Entire shoreline ...... +113 Unincorporated Areas of Or- ange County. Lake Hancock ...... Bound by McKinney Road to the north, Avalon Road to the +99 Unincorporated Areas of Or- west, Porter Road to the south, and Ficquette Road to ange County. the east. Lake Hartley ...... Entire shoreline ...... +99 Unincorporated Areas of Or- ange County. Lake Heney ...... Entire shoreline ...... +106 Unincorporated Areas of Or- ange County. Lake Ihrig ...... Entire shoreline ...... +106 Unincorporated Areas of Or- ange County. Lake Johio ...... Bound by New Victor Road to the north, Tuscany Mill Way +120 Unincorporated Areas of Or- to the west, Azalea Ranch Lane to the south, and Johio ange County, City of Shores Road to the east. Ocoee. Lake June ...... Bound by 18th Street to the north, Highway 441 to the +105 Unincorporated Areas of Or- west, West Kaley Avenue to the south, and South West- ange County. moreland Drive to the east. Lake Lotta ...... Bound by Floribunda Drive to the north, South Clarke Road +91 Unincorporated Areas of Or- to the west, State Highway 408 West to the south, and ange County, City of Good Homes Road to the east. Ocoee. Lake Lucy ...... Entire shoreline ...... +81 Unincorporated Areas of Or- ange County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Lake Mabel ...... Bound by Winter Garden Vineland Road to the north, +95 Unincorporated Areas of Or- Reams Road to the west, Vista Boulevard to the south, ange County. and Winer Garden Vineland to the east. Lake Moxie ...... Entire shoreline ...... +143 City of Ocoee. Lake Needham ...... Bound by Schofield Road to the north, Orange/Lake county +106 Unincorporated Areas of Or- boundary to the west, Old YMCA Road to the south, and ange County. Avalon Road to the east. Lake Notasulga ...... Bound by State Highway 50 to the north, Feguson Drive to +99 Unincorporated Areas of Or- the west, Old Winter Garden Road to the south, and ange County, City of Or- State Highway 423 to the east. lando. Lake Oliver ...... Entire shoreline ...... +113 Unincorporated Areas of Or- ange County. Lake Olympia ...... Entire shoreline ...... +102 Unincorporated Areas of Or- ange County. Lake Pit ...... Bound by Flemings Road to the north, to Orange/Lake +113 Unincorporated Areas of Or- county boundary the west, County Road to the south, ange County. and Avalon Road to the east. Lake Prima Vista ...... Bound by Starke Lake to the north, Lakewood Avenue to +102 Unincorporated Areas of Or- the west, East Orlando Avenue to the south, and East ange County, City of Lakeshore Drive to the east. Ocoee. Lake Reams ...... Entire shoreline ...... +99 Unincorporated Areas of Or- ange County. Lake Rexford ...... Bound by Hartzog Road to the north, Avalon Road to the +112 Unincorporated Areas of Or- west, Arrowhead Boulevard to the south and to the east. ange County. Lake Rhea ...... Bound by Roberson Road to the north, Windermere Road +118 Unincorporated Areas of Or- to the west, Willow Gardens Road to the south, and ange County. Maguire Road to the east. Lake Sawgrass ...... Bound by Porter Road to the north, Phil Ritson Way to the +99 Unincorporated Areas of Or- west, Lake Hancock Road to the south and to the east. ange County. Lake Sawyer...... Bound by Winter Garden Vineland Road to the north, +106 Unincorporated Areas of Or- Ficquette Hancock Road to the west, Overstreet Road to ange County. the south, and Winter Garden Vineland Road to the east. Lake Scott ...... Bound by Hartzog Road to the north, Avalon Road to the +112 Unincorporated Areas of Or- west, Arrowhead Boulevard to the south, and Vista Del ange County. Lago Boulevard to the east. Lake Sentinel ...... Bound by Lake Starr Road to the north and to the west, +110 Unincorporated Areas of Or- Flemings Road to the south, and Avalon Road to the ange County. east. Lake Sharp ...... Entire shoreline ...... +99 Unincorporated Areas of Or- ange County. Lake Speer ...... Bound by Tilden Road to the north, Tiny Road to the west, +101 Unincorporated Areas of Or- Ficquette Road to the south, and Winter Garden Vine- ange County. land Road to the east. Lake Stanley ...... Bound by Lowman Avenue to the north, Cedar Bluff Lane +84 Unincorporated Areas of Or- to the west, State Highway 438 to the south, and North ange County, City of Apopka Vineland Road to the east. Ocoee. Lake Star ...... Bound by Lake Starr Road to the north and to the west, +111 Unincorporated Areas of Or- Flemings Road to the south, and Avalon Road to the ange County, City of east. Ocoee. Lake Theresa ...... Bound by Pelican Road to the north, Executive Center +113 City of Orlando. Drive to the west, Maguire Boulevard to the south, and Bennet Road to the east. Lake William Davis ...... Bound by West Lake Butler Road to the north, Winter Gar- +101 Unincorporated Areas of Or- den Vineland Road to the west and to the south, and ange County. West Lake Butler Road to the east. Little Fish Lake ...... Entire shoreline ...... +101 Unincorporated Areas of Or- ange County. Little Lake Sawyer ...... Bound by Winter Garden Vineland Road to the north, +106 Unincorporated Areas of Or- Ficquette Hancock Road to the west, Overstreet Road to ange County. the south, and Winter Garden Vineland Road to the east. Little Osage Lake ...... Bound by Osage Lake to the north, Strahan Boulevard to +111 Unincorporated Areas of Or- the west, Orange/Osceola county boundary to the south, ange County. and Vista Del Lago Boulevard to the east. Mudd Lake ...... Entire shoreline ...... +113 Unincorporated Areas of Or- ange County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Orange County Pond Outfall Lake Gillooly ...... +83 Unincorporated Areas of Or- Canal. ange County, City of Or- lando. Approximately 2,640 feet upstream of East Landstreet +94 Road. Osage Lake ...... Bound by Arrowhead Boulevard to the north and west, Or- +111 Unincorporated Areas of Or- ange/Osceola county boundary to the south, and Vista ange County. Del Lago Boulevard to the east. Peach Lake ...... Entire shoreline ...... +151 City of Ocoee. Pond 740 ...... Bound by State Highway 50 to the north, Mercy Drive to +99 City of Orlando. the west, Old Winter Garden Road to the south, and Fer- guson Drive to the east. Ponding Area 395–1 ...... Bound by Orange/Lake county boundary to the north, +62 Unincorporated Areas of Or- Rainey Road to the west, Swain Road to the south, and ange County. Mt. Plymouth Road to the east. Ponding Area No. 30 ...... Bound by Lynx Lane to the north, State Highway 423 to the +98 City of Orlando. west, State Highway 438 to the south, and North Texas Avenue to the east. Ponding Area No. 31 ...... Bound by State Highway 438 to the north, State Highway +97 City of Orlando. 423 to the west, John Young Parkway Drainage Canal to the south, and Brinkley Way to the east. Ponding Area No. 32 ...... Bound by State Highway 438 to the north, State Highway +96 City of Orlando. 423 to the west, John Young Parkway Drainage Canal to the south, and North Texas Avenue to the east. Ponding Area No. 33 ...... Bound by W. Judge Drive to the north, Kensington Drive to +98 City of Orlando. the west, State Highway 50 to the south, and State High- way 423 to the east. Ponding Area No. 34 ...... Bound by West D. Judge Drive to the north, Kensington +96 City of Orlando. Drive to the west, State Highway 50 to the south, and State Highway 423 to the east. Ponding Area No. 35 ...... Bound by West D. Judge Drive to the north, Mercy Drive to +96 City of Orlando, Unincor- the west, State Highway 50 to the south, and Ferguson porated Areas of Orange Drive to the east. County. Ponding Area No. 36 ...... Bound by West D. Judge Drive to the north, Mercy Drive to +96 City of Orlando. the west, El Rey Road to the south, and Ferguson Drive to the east. Ponding Area No. 37 ...... Bound by Boston Common Street to the north, Mercy Drive +96 City of Orlando, Unincor- to the west, El Rey Road to the south, and Ferguson porated Areas of Orange Drive to the east. County. Ponding Area No. 38 ...... Bound by Racoon Lake to the north, Ranger Smiths Circle +105 Unincorporated Areas of Or- to the west, Orange/Osceola county boundary to the ange County. south, and Orange Lake Circle to the east. Ponding Area No. 39 ...... Bound by Orange Lake Circle to the north, Ponding Area +105 Unincorporated Areas of Or- No. 38 to the west, Orange/Osceola county boundary to ange County. the south, and Orange Lake Boulevard to the east. Ponding Area No. 40 ...... Bound by Aviendo Del Lago Drive to the north, Vista Del +110 Unincorporated Areas of Or- Lago to the west, Daeza Drive to the south, and Racoon ange County. Lake to the east. Ponding Area No. 41 ...... Bound by Lake Kem Way to the north, Racoon Lake to the +105 Unincorporated Areas of Or- west, and Orange Lake Boulevard to the south and to ange County. the east. Ponding Area No. 42 ...... Bound by Hartzog Road to the north, Lake Kem Way to the +105 Unincorporated Areas of Or- west and to the south, and Cypress Circle to the east. ange County. Ponding Area No. 43 ...... Bound by to Hartzog Road to the north, Avalon Road to the +110 Unincorporated Areas of Or- west, and Hartzog Road to the south and to the east. ange County. Ponding Area No. 44 ...... Bound by to Hartzog Road to the north, Avalon Road to the +107 Unincorporated Areas of Or- west, and Hartzog Road to the south and to the east. ange County. Ponding Area No. 45 ...... Bound by to Hartzog Road to the north, Avalon Road to the +106 Unincorporated Areas of Or- west, and Hartzog Road to the south and to the east. ange County. Ponding Area No. 49 ...... Bound by County Road to the north, Orange/Lake county +116 Unincorporated Areas of Or- boundary to the west, Bali Boulevard to the south, and ange County. Avalon Road to the east. Ponding Area No. 50 ...... Bound by Bali Avenue to the north, Orange/Lake county +112 Unincorporated Areas of Or- boundary to the west, Orange/Osceola county boundary ange County. to the south, and Bali Avenue to the east.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Ponding Area No. 51 ...... Bound by Hartzog Road to the north, Avalon Road to the +113 Unincorporated Areas of Or- west, Arrowhead Boulevard to the south, and Vista Del ange County. Lago Boulevard to the east. Ponding Area No. 52 ...... Bound by Hartzog Road to the north, Avalon Road to the +112 Unincorporated Areas of Or- west, Arrowhead Boulevard to the south, and Vista Del ange County. Lago Boulevard to the east. Ponding Area No. 53 ...... Bound by Hartzog Road to the north, Avalon Road to the +112 Unincorporated Areas of Or- west, Arrowhead Boulevard to the south, and Vista Del ange County. Lago Boulevard to the east. Ponding Area No. 54 ...... Bound by Vista Del Lago Boulevard to the north, Avalon +113 Unincorporated Areas of Or- Road to the west, Cordoba Street to the south, and Vista ange County. Del Lago Boulevard to the east. Ponding Area No. 55 ...... Bound by Vista Del Lago Boulevard to the north, Avalon +112 Unincorporated Areas of Or- Road to the west, Cordoba Street to the south, and Vista ange County. Del Lago Boulevard to the east. Ponding Area No. 56 ...... Bound by Cordoba Street to the north, Arrowhead Boule- +111 Unincorporated Areas of Or- vard to the west, Osage Lake to the south, and Vista Del ange County. Lago Boulevard to the east. Ponding Area No. 57 ...... Bound by Flemings Road to the north, Orange/Lake county +115 Unincorporated Areas of Or- boundary to the west, County Road to the south, and Av- ange County. alon Road to the east. Ponding Area No. 58 ...... Bound by Old YMCA Road to the north and to the west, +104 Unincorporated Areas of Or- Hickorynut Lake to the south, and Avalon Road to the ange County. east. Ponding Area No. 60 ...... Bound by Seidel Road to the north, Avalon Road to the +106 Unincorporated Areas of Or- west, Hartzog Road to the south, and Reedy Lake to the ange County. east. Ponding Area No. 61 ...... Bound by Malcom Road to the north, Avalon Road to the +100 Unincorporated Areas of Or- west, McKinney Road to the south, and Mann Road to ange County. the east. Ponding Area No. 62 ...... Bound by Tilden Road to the north, Tiny Road to the west, +102 Unincorporated Areas of Or- Lake Speer to the south, and Winter Garden Vineland ange County. Road to the east. Ponding Area No. 63 ...... Bound by McKinney Road to the north, Avalon Road to the +102 Unincorporated Areas of Or- west, Porter Road to the south, and Ficquette Hancock ange County. Road to the east. Ponding Area No. 64 ...... Bound by Lake Star Road to the north Flemings Road to +116 Unincorporated Areas of Or- the west and to the south, and Avalon Road to the east. ange County. Ponding Area No. 65 ...... Bound by Hartzog Road to the north, Avalon Road to the +107 Unincorporated Areas of Or- west, and Hartzog Road to the south and to the east. ange County. Ponding Area No. 66 ...... Bound by Whittenhorse Creek to the north, Hartzog Road +103 Unincorporated Areas of Or- to the west, Boggy Creek 2 to the south, and Perimeter ange County. Canal to the east. Ponding Area No. 67 ...... Bound by Porter Road to the north, Avalon Road to the +99 Unincorporated Areas of Or- west, Seidel Road to the south and to the east. ange County. Ponding Area No. 68 ...... Bound by West Lake Butler Road to the north, Winter Gar- +106 Unincorporated Areas of Or- den Vineland Road to the west and to the south, and ange County. West Lake Butler Road to the east. Ponding Area No. 69 ...... Bound by Overstreet Road to the north, Reams Road to +108 Unincorporated Areas of Or- the west and to the south, and Winter Garden Vineland ange County. Road to the east. Ponding Area No. 70 ...... Bound by Lake Butler to the north, Winter Garden Vineland +101 Unincorporated Areas of Or- Road to the west, Sandy Shores Drive to the south and ange County. to the east. Ponding Area No. 71 ...... Bound by Park Ridge Gotha Road to the north, Maguire +106 Unincorporated Areas of Or- Road to the west, Wonder Lane to the south, and Down ange County. Hollow Road to the east. Ponding Area No. 72 ...... Bound by Wonder Lane to the north, Maguire Road to the +103 Unincorporated Areas of Or- west, Down Yonder Lane to the south, and Lake Down ange County. to the east. Ponding Area No. 73...... Bound by Chase Road to the north and to the west, +102 Unincorporated Areas of Or- Isleworth Country Club Drive to the south, and railroad to ange County. the east. Ponding Area No. 75 ...... Bound by Brookline Drive to the north, railroad to the west +111 Unincorporated Areas of Or- and to the south, and Brookline Drive to the east. ange County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Ponding Area No. 76 ...... Bound by Bat Hill Boulevard to the north and to the west, +103 Unincorporated Areas of Or- Shawn Park Place to the south, and Donegal Drive to ange County. the east. Ponding Area No. 77 ...... Bound by Lost Cove Road to the north, Shawn Park Place +103 Unincorporated Areas of Or- to the west, South Bay Drive to the south, and Lost Cove ange County. Road to the east. Ponding Area No. 78 ...... Bound by State Highway 50 to the north, State Route 408 +92 Unincorporated Areas of Or- Off Ramp to the west and to the south, and Citrus Oaks ange County, City of Avenue to the east. Ocoee. Ponding Area No. 79 ...... Bound by Clarcona Ocoee Road to the north, Licaria Drive +89 Unincorporated Areas of Or- to the west, Nicole Boulevard to the south, and Lauren ange County, City of Beth Avenue to the east. Ocoee. Ponding Area No. 80 ...... Bound by Lumberjack Lane to the north, Log Wagon Road +96 City of Ocoee. to the west, Hackney Prairie Road to the south, and Tim- ber Ridge Trail to the east. Ponding Area No. 81 ...... Bound by Natchez Trace Boulevard to the north and to the +115 Unincorporated Areas of Or- west, Montevello Court to the south, and Sackett Circle ange County. to the east. Ponding Area No. 82 ...... Bound by White Road to the north, Rosemist Court to the +97 Unincorporated Areas of Or- west, and South Clarke Road to the south and to the ange County. east. Racoon Lake ...... Bound by Hartzog Road to the north, Boo Boo Road to the +105 Unincorporated Areas of Or- west, Orange/Osceola county boundary to the south, and ange County. Orange Lake Boulevard to the east. Reedy Lake ...... Bound by Overstreet Road to the north, Lake Reams Bou- +96 Unincorporated Areas of Or- levard to the west, Reams Road to the south and to the ange County. east. Rock Lake ...... Bound by Rock Lake Drive to the north, North Tampa Ave- +100 City of Orlando. nue to the west, West Washington Street to the south, and Highway 441 to the east. Shingle Creek ...... Orange/Osceola county boundary ...... +75 Unincorporated Areas of Or- ange County. Just downstream of Raleigh Street ...... +97 South Lake ...... Bound by Connie Drive to the north, World Drive to the +95 Unincorporated Areas of Or- west, Vista Boulevard to the south, and Winter Garden ange County. Vineland Road to the east. Southport Ditch ...... Just downstream of Tradeport Drive South ...... +87 City of Orlando. Approximately 1,000 feet upstream of Andros Place ...... +89 Spring Lake No. 3 ...... Bound by railroad to the north, Ridgefield Avenue to the +117 Unincorporated Areas of Or- west, Century Oak Drive to the south, and North Clarke ange County, City of Road to the east. Ocoee. Starke Lake ...... Bound by State Highway 438 to the north, North Lakeshore +102 Unincorporated Areas of Or- Drive to the west, East Lakeshore Drive to the south, ange County, City of and 1st Street to the east. Ocoee. Stream A No. 1 ...... Approximately 400 feet downstream of North Bluford Ave- +102 City of Ocoee. nue. Just downstream of North Kissimmee Avenue ...... +113 Stream B ...... Just downstream of Ocoee Apopka Road ...... +89 Unincorporated Areas of Or- ange County. Approximately 800 feet downstream of Ocoee Apopka +111 Road. Stream B (Swamp) ...... Bound by Fullers Cross Road to the north, Ocoee Apopka +119 Unincorporated Areas of Or- Road to the west, State Highway 438 to the south, and ange County, City of North Lakewood Avenue to the east. Ocoee. Stream C ...... Just upstream of State Road 429 ...... +89 Unincorporated Areas of Or- ange County, City of Ocoee. Just upstream of Palm Drive ...... +116 Texas Basin Ponding Area ... Bound by State Highway 50 to the north, State Highway +100 Unincorporated Areas of Or- 423 to the west, Old Winter Garden Road to the south, ange County, City of Or- and North Tampa Avenue to the east. lando. Tradeport Ditch ...... Just upstream of Wiley Drive ...... +82 City of Orlando. Just upstream of Oak Bluff Drive ...... +93 Tub Lake ...... Bound by Seidel Road to the north and to the west, Reedy +96 Unincorporated Areas of Or- Lake to the south, and Perimeter Canal to the east. ange County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Unnamed Flooding Area Bound by Orchard Drive to the north, Majestic Oak Drive to +64 Unincorporated Areas of Or- (Lake 72). the west and to the south, and Orange/Seminole county ange County. boundary to the east. Unnamed Lake 14 ...... Bound by Old YMCA Road to the north, Hickorynut Lake to +103 Unincorporated Areas of Or- the west and to the south, and Avalon Road to the east. ange County. Unnamed Lake 15 ...... Bound by Phil Ritson Way to the north, Avalon Road to the +103 Unincorporated Areas of Or- west, Seidel Road to the south and to the east. ange County. Unnamed Lake 17 ...... Bound by Roberson Road to the north, Windermere Road +106 Unincorporated Areas of Or- to the west and to the south, and Kane Park Way to the ange County. east. Unnamed Lake D ...... Entire shoreline ...... +105 Unincorporated Areas of Or- ange County. Unnamed Lake E ...... Entire shoreline ...... +105 Unincorporated Areas of Or- ange County. Unnamed Lake F ...... Entire shoreline ...... +104 Unincorporated Areas of Or- ange County. Unnamed Lake G ...... Entire shoreline ...... +104 Unincorporated Areas of Or- ange County. Unnamed Lake H ...... Entire shoreline ...... +104 Unincorporated Areas of Or- ange County. Unnamed Lake I ...... Entire shoreline ...... +104 Unincorporated Areas of Or- ange County. Unnamed Lake J ...... Entire shoreline ...... +107 Unincorporated Areas of Or- ange County.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Apopka Maps are available for inspection at the Apopka City Engineer’s Office, 120 East Main Street, Apopka, FL 32704–1229. City of Ocoee Maps are available for inspection at the Building and Zoning Department, 150 North Lakeshore Drive, Ocoee, FL 34761. City of Orlando Maps are available for inspection at the City of Orlando Permitting Services Division, 400 South Orange Avenue, Orlando, FL 32801. Town of Windermere Maps are available for inspection at the Windermere Town Hall, 614 Main Street, Windermere, FL 34786. Unincorporated Areas of Orange County Maps are available for inspection at the Orange County Stormwater Management Department, 4200 South John Young Parkway, Orlando, FL 32839.

Ben Hill County, Georgia, and Incorporated Areas FEMA Docket No.: B–1009

Turkey Creek ...... Just upstream of Industrial Drive ...... +315 Unincorporated Areas of Ben Hill County. Approximately 270 feet downstream of Cemetery Road ...... +319 At Cemetery Road ...... +319 Approximately 1,520 feet downstream of Monitor Drive ...... +327 Approximately 760 feet upstream of Sultana Drive ...... +341 Approximately 1,150 feet upstream of Rochelle Road ...... +344 Turkey Creek Tributary No. 1 Approximately 950 feet downstream of W. Roanoke Drive .. +328 Unincorporated Areas of Ben Hill County. Approximately 480 feet downstream of W. Roanoke Drive .. +329 Willacoochee River ...... Approximately 1,880 feet downstream of Irwinville Highway +324 Unincorporated Areas of Ben Hill County. Approximately 1,780 feet downstream of Irwinville Highway +324 Approximately 1,280 feet downstream of Irwinville Highway +325 Approximately 480 feet downstream of Irwinville Highway ... +326

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

ADDRESSES Unincorporated Areas of Ben Hill County Maps are available for inspection at the County Commissioner’s Office, 402–A East Pine Street, Fitzgerald, GA 31750.

Berrien County, Georgia, and Incorporated Areas FEMA Docket No.: B–1016

Cat Creek/Tributary 2 ...... Approximately 320 feet downstream of State Highway 37 ... +175 Unincorporated Areas of Berrien County. Approximately 1,270 feet upstream of North Street ...... +183

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Berrien County Maps are available for inspection at the County Courthouse, Town Square, Nashville, GA 31639.

Colquitt County, Georgia, and Incorporated Areas FEMA Docket No.: B–1016

Ochlockonee River ...... Approximately 3,380 feet downstream of Camilla Highway +256 Township of Riverside. Approximately 238 feet upstream of Camilla Highway ...... +258

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Township of Riverside Maps are available for inspection at City Hall, 301 Riverside Drive, Moultrie, GA 31768.

Crisp County, Georgia, and Incorporated Areas FEMA Docket No.: B–1017

Gum Creek ...... 9,000 feet downstream of West Eleventh Street ...... +277 Unincorporated Areas of Crisp County. 850 feet downstream of West Eleventh Street ...... +284

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Crisp County Maps are available for inspection at 210 7th Street, Cordele, GA 31015.

Decatur County, Georgia, and Incorporated Areas FEMA Docket No.: B–1014

Flint River ...... Approximately 2.4 miles downstream of U.S. Route 27 ...... +90 Unincorporated Areas of De- catur County, City of Bain- bridge. Approximately 2.9 miles upstream of Calhoun Street ...... +98 Flint River/Lake Seminole ..... At the confluence with Butlers Creek ...... +81 Unincorporated Areas of De- catur County. At Georgia/Florida state line ...... +81 Big Slough Tributary ...... Approximately 1,450 feet downstream of Thomasville Road +105 Unincorporated Areas of De- catur County, City of Bain- bridge. Approximately 440 feet downstream of Lake Douglas Road +107

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Bainbridge Maps are available for inspection at City Hall, 107 Broad Street, Bainbridge, GA 39817.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Unincorporated Areas of Decatur County Maps are available for inspection at the Decatur County Planning Department, 309 Airport Road, Bainbridge, GA 39817.

Dougherty County, Georgia, and Incorporated Areas FEMA Docket No.: B–1017

Dry Creek ...... Approximately 150 feet upstream of Liberty Expressway ..... +184 Unincorporated Areas of Dougherty County. At Liberty Expressway ...... +184 Dry Creek Tributary 1 ...... Approximately 1,875 feet downstream of Moultrie Road ...... +238 Unincorporated Areas of Dougherty County. Approximately 1,275 feet upstream of Moultrie Road ...... +249 Dry Creek Tributary 4 ...... Approximately 2,400 feet downstream of US Highway 19 ... +174 Unincorporated Areas of Dougherty County. Approximately 4,136 feet downstream of US Highway 19 ... +174

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Dougherty County Maps are available for inspection at 222 Pine Avenue, Albany, GA 31702.

Floyd County, Georgia, and Incorporated Areas FEMA Docket No.: B–7475

Booze Creek ...... Approximately 350 feet upstream of the confluence with Sil- +638 Unincorporated Areas of ver Creek. Floyd County. Approximately 840 feet upstream of the confluence with Sil- +638 ver Creek. Big Dry Creek ...... Just upstream of Martha Berry Road ...... +597 Unincorporated Areas of Floyd County, City of Rome. At the confluence of Tributary 1 to Big Dry Creek ...... +597 Big Dry Creek Tributary 1 ..... At the confluence with Big Dry Creek ...... +597 Unincorporated Areas of Floyd County, City of Rome. Approximately 2,500 feet upstream of CCC Road ...... +604 Big Dry Creek Tributary 2 ..... At confluence with Tributary 1 to Big Dry Creek ...... +597 Unincorporated Areas of Floyd County, City of Rome. Approximately 200 feet upstream of Lindsey Road NW ...... +603 Silver Creek ...... At the confluence with Etowah River ...... +596 City of Rome. Approximately 2,000 feet upstream of the confluence with +596 Etowah River. South Fork Horseleg ...... At the confluence with Horseleg Creek ...... +608 Unincorporated Areas of Floyd County, City of Rome. Approximately 100 feet upstream of the confluence with +608 Horseleg Creek.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. 1 The existing elevation data included on the effective FIRM is printed in the elevation datum of the National Geodetic Vertical Datum of 1929 (NGVD29). In order to convert this printed elevation data from the NGVD29 datum to the NAVD88 datum, please add 0.12 feet. ADDRESSES Unincorporated Areas of Floyd County Maps are available for inspection at the Rome-Floyd County Building Inspection Department, 607 Broad Street, Rome, GA 30161. City of Rome Maps are available for inspection at the Rome-Floyd County Building Inspection Department, 607 Broad Street, Rome, GA 30161.

Lamar County, Georgia, and Incorporated Areas FEMA Docket No.: B–1017

Tobesofkee Creek ...... Approximately 204 feet downstream of Barnesville Cor- +764 Unincorporated Areas of porate Limits. Lamar County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Approximately 1 foot downstream of Barnesville Corporate +765 Limits.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Lamar County Maps are available for inspection at 326 Thomaston Street, Lamar, GA 30204.

Mitchell County, Georgia, and Incorporated Areas FEMA Docket No.: B–1017

Big Slough ...... Upstream just within Camilla city limits ...... +161 Unincorporated Areas of Mitchell County. Directly downstream of US Hwy 19 ...... +163 Directly upstream of US Hwy 19 ...... +165 Upstream of Sylvester Road ...... +169 Big Slough Tributary 10 ...... Downstream of Moultrie Road ...... +169 Unincorporated Areas of Mitchell County. Upstream of S MacArthur Drive ...... +175

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Mitchell County Maps are available for inspection at P.O. Box 187, Camilla, GA 31730.

Seminole County, Georgia, and Incorporated Areas FEMA Docket No.: B–1014

Chattahoochee River ...... At Lake Seminole ...... +81 Unincorporated Areas of Seminole County. Approximately 1.6 miles upstream of State Highway 91 ...... +97 Lake Seminole/Spring Creek Flooding area bound by Cypress Pond Road to the north, +81 Unincorporated Areas of Georgia/Florida state line to the west and south, and the Seminole County. Seminole/Decatur county boundary to the east.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Seminole County Maps are available for inspection at the County Courthouse, 200 South Knox Avenue, Donalsonville, GA 39845.

Thomas County, Georgia, and Incorporated Areas FEMA Docket No.: B–1017

Gatling Branch Tributary 11 .. Approximately 40 feet upstream of Pine Tree Boulevard ..... +262 Unincorporated Areas of Thomas County, City of Thomasville. Approximately 128 feet downstream of Pine Tree Boule- +262 vard. Wards Creek ...... Approximately 1,900 feet downstream of Habersham Road +220 City of Thomasville, Unincor- porated Areas of Thomas County. Approximately 469 feet upstream of Habersham Road ...... +232

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Thomasville Maps are available for inspection at 111 Victoria Place, Thomasville, GA 31799.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Unincorporated Areas of Thomas County Maps are available for inspection at P.O. Box 920, Thomasville, GA 31799.

Upson County, Georgia, and Incorporated Areas FEMA Docket No.: B–1017

Bell Creek ...... Approximately 1,990 feet upstream of Raines Street ...... +584 Unincorporated Areas of Upson County. Approximately 1,800 feet downstream of Raines Street ...... +605 Potato Creek ...... Approximately 50 feet downstream of Crest Highway ...... +616 Unincorporated Areas of Upson County. Approximately 5,400 feet upstream of Crest Highway ...... +637 Potato Creek Tributary ...... At Jeff Davis Road ...... +712 Unincorporated Areas of Upson County. Approximately 100 feet upstream of Jeff Davis Road ...... +714 Town Branch ...... Approximately 5,461 feet downstream of Davis Lake Road +584 Unincorporated Areas of Upson County. Approximately 4,600 feet upstream of Davis Lake Road ..... +652

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Upson County Maps are available for inspection at P.O. Box 889, Thomaston, GA 30286.

Worth County, Georgia, and Incorporated Areas FEMA Docket No.: B–1017

Town Creek Tributary 2 ...... Approximately 270 feet upstream of Young Street ...... +358 Unincorporated Areas of Worth County. Approximately 10 feet upstream of West Franklin Street ..... +364

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Worth County Maps are available for inspection at 201 North Main Street, Sylvester, GA 31791.

Unincorporated Areas of Maui County, Hawaii Docket No.: FEMA–B–1002

Kaluaihakoko Stream ...... Approximately 25 feet upstream of confluence with Pacific ∧3 Unincorporated Areas of Ocean. Maui County. Approximately 500 feet upstream of Piilani Highway ...... ∧138 Kamaole Gulch ...... Approximately 90 feet upstream of confluence with Pacific ∧6 Unincorporated Areas of Ocean. Maui County. Approximately 325 feet upstream of Piilani Highway ...... ∧120 Waikapu Stream ...... Approximately 255 feet downstream of Kuihelani Highway .. ∧191 Unincorporated Areas of Maui County. Approximately 1.6 miles upstream of Honoapiilani Highway ∧781

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Local Tidal Datum. ADDRESSES Unincorporated Areas of Maui County Maps are available for inspection at the Maui County Planning Department, 250 South High Street, 2nd Floor, Wailuku, HI 96793.

Hendricks County, Indiana, and Incorporated Areas FEMA Docket No.: B–7752

Abner Creek ...... At the confluence with White Lick Creek ...... +751 Unincorporated Areas of Hendricks County.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Approximately 800 feet downstream of South County Road +751 525 East. Clarks Creek ...... At the confluence with White Lick Creek ...... +693 Unincorporated Areas of Hendricks County. Approximately 1,450 feet upstream of South Center Street +694 Cosner Branch ...... At the confluence with West Fork White Lick Creek ...... +748 Unincorporated Areas of Hendricks County. Approximately 600 feet upstream of the confluence with +750 West Fork White Lick Creek. Hughes Branch ...... Approximately 680 feet upstream of the confluence with Lit- +866 Unincorporated Areas of tle West Fork White Lick Creek. Hendricks County. Approximately 4,570 feet upstream of County road 651 +936 North. Keeney Ditch ...... At the confluence with Little West Fork White Lick Creek .... +931 Unincorporated Areas of Hendricks County. Approximately 4,580 feet upstream of North County Road +943 275 East. Little West Fork White Lick At the confluence with White Lick Creek ...... +848 Unincorporated Areas of Creek. Hendricks County, Town of Brownsburg, Town of Pitts- boro. Approximately 3,385 feet upstream of East County Road +941 1000 North. Ross Ditch ...... Approximately 740 feet downstream of North County Road +929 Unincorporated Areas of 200 West. Hendricks County, Town of Lizton. Approximately 3,985 feet upstream of North County Road +949 150 East. Thompson Creek ...... Approximately 140 feet upstream of the confluence with +863 Unincorporated Areas of West Fork White Lick Creek. Hendricks County. Approximately 550 feet upstream of the confluence with +864 West Fork White Lick Creek. West Fork White Lick Creek At the confluence with White Lick Creek ...... +677 Unincorporated Areas of Hendricks County. Approximately 2,100 feet upstream of the confluence with +680 White Lick Creek. West Fork White Lick Creek Approximately 300 feet upstream of the confluence with +706 Unincorporated Areas of Tributary No. 1. West Fork White Lick Creek. Hendricks County. Approximately 2,750 feet upstream of the confluence with +713 West Fork White Lick Creek. White Lick Creek ...... At the Morgan County boundary/East Hendricks County +677 Unincorporated Areas of Road. Hendricks County, Town of Avon, Town of Brownsburg, Town of Plainfield. Approximately 7,400 feet upstream of East County Road +915 1000 North. White Lick Creek Tributary At the confluence with White Lick Creek ...... +774 Unincorporated Areas of No. 3. Hendricks County, Town of Avon. Approximately 250 feet upstream of the confluence with +774 White Lick Creek. White Lick Creek Tributary At the confluence with White Lick Creek ...... +783 Unincorporated Areas of No. 4. Hendricks County. Approximately 150 feet downstream of County Road 91 +789 North.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Town of Avon Maps are available for inspection at 6570 East U.S. Highway 36, Avon, IN 46123. Town of Brownsburg Maps are available for inspection at 80 East Vermont, Brownsburg, IN 46112. Town of Lizton Maps are available for inspection at 106 North Lebanon Street, Lizton, IN 46149.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Town of Pittsboro Maps are available for inspection at 80 North Meridian Street, Pittsboro, IN 46167. Town of Plainfield Maps are available for inspection at 355 South Washington Street, Danville, IN 46122. Unincorporated Areas of Hendricks County Maps are available for inspection at 355 South Washington Street, Danville, IN 46122.

Tippecanoe County, Indiana, and Incorporated Areas FEMA Docket No.: B–7762

Cole Ditch ...... At its confluence with Burnett Creek ...... +627 Unincorporated Areas of Tip- pecanoe County. Approximately 4,000 feet upstream of County Road 150 ..... +669 Cole Ditch Unnamed Tribu- At its confluence with Cole Ditch ...... +647 Unincorporated Areas of Tip- tary 1. pecanoe County, City of West Lafayette. Approximately 1,250 feet upstream of Kalberger Road ...... +694 Cole Ditch Unnamed Tribu- At its confluence with Cole Ditch ...... +628 Unincorporated Areas of Tip- tary 2. pecanoe County. Approximately 1,340 feet upstream of County Road 500 ..... +655 Cuppy Ditch ...... At its confluence with Cole Ditch ...... +649 Unincorporated Areas of Tip- pecanoe County. Approximately 50 feet upstream of Morehouse Road ...... +655 East Branch Wea Creek ...... At its confluence with Wea Creek ...... +684 Unincorporated Areas of Tip- pecanoe County. Approximately 50 feet upstream of County Road 500 ...... +756 Indian Creek ...... Approximately 2,900 feet downstream of County Road 400 +631 Unincorporated Areas of Tip- pecanoe County. Approximately 1,775 feet upstream of U.S. Highway 52 ...... +654 Tippecanoe River ...... At its confluence with the Wabash River ...... +538 Unincorporated Areas of Tip- pecanoe County. At the County Boundary ...... +544

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of West Lafayette Maps are available for inspection at the Area Plan Commission of Tippecanoe County, 20 North 3rd Street, Lafayette, IN 47901. Unincorporated Areas of Tippecanoe County Maps are available for inspection at the Area Plan Commission of Tippecanoe County, 20 North 3rd Street, Lafayette, IN 47901.

Allen County, Kansas, and Incorporated Areas FEMA Docket No.: B–1002

Coon Creek ...... Approximately 0.60 mile downstream of Highway 54 ...... +954 City of Iola, Unincorporated Areas of Allen County. Approximately 115 feet upstream of North Kentucky Street +988

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Iola Maps are available for inspection at 2 West Jackson Avenue, Iola, KS 66749. Unincorporated Areas of Allen County Maps are available for inspection at 1 North Washington Avenue, Iola, KS 66749.

Genesee County, Michigan, and Incorporated Areas FEMA Docket No.: B–7774

Armstrong Creek ...... Downstream side of Francis Road ...... +682 Township of Flushing, Town- ship of Montrose. Approximately 2100 feet upstream of Stanley Road ...... +708 Copneconic Lake ...... Entire shoreline of Copneconic Lake ...... +846 Township of Fenton. Fenwin Pond ...... Entire shoreline of Fenwin Pond ...... +837 Township of Mundy.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Lum Drain ...... Downstream side of Moorish Road ...... +778 Township of Gaines. Upstream side of Elms Road ...... +783 Pierson Branch of Thread Approximately 680 feet downstream of S Center Road ...... +766 City of Burton. Creek. Approximately 1500 feet downstream of E Maple Avenue ... +822 Shinanguag Lake ...... Entire shoreline of Shinanguag Lake ...... +890 Township of Atlas.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Burton Maps are available for inspection at 4303 South Center Road, Burton, MI 48519. Township of Atlas Maps are available for inspection at 7386 Gale Road, Goodrich, MI 48439. Township of Fenton Maps are available for inspection at 12060 Mantawauka Drive, Fenton, MI 48430. Township of Flushing Maps are available for inspection at 6524 North Seymour Road, Flushing, MI 48433. Township of Gaines Maps are available for inspection at 9255 Grand Blanc Road, Gaines, MI 48436. Township of Montrose Maps are available for inspection at 139 South Saginaw Street, Montrose, MI 48457. Township of Mundy Maps are available for inspection at 3478 Mundy Avenue, Swartz Creek, MI 48473.

Brown County, Minnesota, and Incorporated Areas FEMA Docket No.: B–7751

Minnesota River ...... Approximately 5,530 feet downstream of Dakota, Min- +807 City of New Ulm, Unincor- nesota, and Eastern Railroad. porated Areas of Brown County. Approximately 1,673 feet upstream of county boundary ...... +825

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of New Ulm Maps are available for inspection at 100 North Broadway, New Ulm, MN 56073. Unincorporated Areas of Brown County Maps are available for inspection at 14 South State Street, New Ulm, MN 56073.

Goodhue County, Minnesota, and Incorporated Areas FEMA Docket No.: B–7755

Belle Creek ...... At the confluence with the Cannon River ...... +709 Unincorporated Areas of Goodhue County. Approximately 8,050 feet upstream of 390th Street ...... +1149 Cannon River ...... Approximately 4,570 feet upstream of Railroad Bridge ...... +686 Unincorporated Areas of Goodhue County, City of Cannon Falls, City of Red Wing. Approximatley 8,120 feet upstream of State Highway 56 .... +873 Gilbert Creek ...... Approximately 115 feet upstream of Railroad Bridge ...... +689 Unincorporated Areas of Goodhue County. Approximately 980 feet upstream of County 5 Boulevard .... +695 Hay Creek ...... Approximately 400 feet upstream of Old West Main Street +689 Unincorporated Areas of Goodhue County, City of Red Wing. Approximately 3,630 feet upstream of 350th Street ...... +1063 Little Cannon River ...... At the confluence with the Cannon River ...... +790 Unincorporated Areas of Goodhue County, City of Cannon Falls. Approximately 7,045 feet upstream of 20th Avenue ...... +1094

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Mississippi River ...... Located at the Goodhue/Wabasha County Line ...... +681 Unincorporated Areas of Goodhue County, City of Lake City, City of Red Wing. Located at the Goodhue/Dakota County Line ...... +688 North Fork Zumbro River ...... Approximately 7,370 feet downstream of Main Street ...... +1008 Unincorporated Areas of Goodhue County, City of Wanamingo. Approximately 3,830 feet upstream of Main Street ...... +1022 Pine Island Creek ...... Approximately 8,550 feet downstream of 230th Avenue ...... +996 Unincorporated Areas of Goodhue County. Approximately 1,790 feet upstream of County 43 Boulevard +1132 Wells Creek ...... At the confluence with the Mississippi River ...... +682 Unincorporated Areas of Goodhue County. Approximately 6,000 feet upstream of County 45 Boulevard +855

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Cannon Falls Maps are available for inspection at the City Offices Building, 918 River Road, Cannon Falls, MN 55009. City of Lake City Maps are available for inspection at City Hall, 205 West Center Street, Lake City, MN 55041. City of Red Wing Maps are available for inspection at the Community Development Building, 419 Bush Street, Red Wing, MN 55066. City of Wanamingo Maps are available for inspection at City Hall, 401 Main Street, Wanamingo, MN 55983. Unincorporated Areas of Goodhue County Maps are available for inspection at the Land Use Management Office, Room 102, 509 West 5th Street, Red Wing, MN 55066.

Renville County, Minnesota, and Incorporated Areas FEMA Docket No.: B–7773

Minnesota River ...... Approximately 4,850 feet downstream of the Nicollet Coun- +819 City of Franklin, City of Mor- ty Boundary. ton, Unincorporated Areas of Renville County. Approximately 4,600 feet upstream of the Chippewa Coun- +883 ty Boundary.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Franklin Maps are available for inspection at City Hall, 320 Second Avenue East, Franklin, MN 55333. City of Morton Maps are available for inspection at City Hall, 221 West 2nd Street, Morton, MN 56270. Unincorporated Areas of Renville County Maps are available for inspection at the Renville County Office Building, 105 South 5th Street, Room 311, Olivia, MN 56277.

Hillsborough County, New Hampshire, and Incorporated Areas FEMA Docket No.: B–1017

Baboosic Brook ...... At confluence with Souhegan River ...... +118 Town of Bedford, Town of Merrimack. Approximately 1,150 feet downstream of Stowell Road ...... +221 Chase Brook ...... Just upstream of State Route 3A ...... +136 Town of Litchfield. Approximately 100 feet upstream of Pilgrim Road ...... +174 Contoocook River ...... Approximately 1.52 miles upstream of Boston and Maine +594 Town of Hillsborough, Town Railroad. of Peterborough. Approximately 1.37 miles upstream of Drury Road ...... +854 Gumpas Road Brook ...... Just upstream of Marsh Road ...... +137 Town of Pelham. Just upstream of Debbie Drive ...... +167 Naticook Brook ...... At U.S. Route 3 ...... +117 Town of Merrimack. Approximately 70 feet downstream of Naticook Lake Outlet +204

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Nesenkeag Brook ...... Approximately 100 feet downstream of State Route 3A ...... +120 Town of Litchfield. Approximately 1 mile upstream of Albuquerque Boulevard .. +182 Nubanusit Brook ...... At confluence with Contoocook River ...... +722 Town of Peterborough. Approximately 30 feet upstream of Wilder Street ...... +863 Otter Brook ...... Approximately 450 feet downstream of State Route 136 ..... +703 Town of Peterborough, Town of Greenfield. Approximately 2,300 feet upstream of the confluence of +801 Otter Lake Brook. Pennichuck Brook ...... Just upstream of Harris Pond Dam ...... +142 City of Nashua. Just downstream of Pennichuck Pond Outlet ...... +189 Salmon Brook ...... At confluence with Merrimack River ...... +112 City of Nashua. Approximately 2,800 feet upstream of Ridge Road Bridge .. +156 Second Brook ...... Approximately 400 feet upstream of Radcliffe Road ...... +112 Town of Hudson. Approximately 40 feet upstream of Wason Road ...... +177 Pointer Club Brook ...... Approximately 480 feet downstream of U.S. Highway 3 ...... +146 Town of Merrimack. Just downstream of F.E. Everett Turnpike ...... +155 Stony Brook ...... Just downstream of Small Dam ...... +820 Town of Lyndeborough. Approximately 2,600 feet downstream of School House +825 Road. Tributary B No. 1 ...... At confluence with Chase Brook ...... +170 Town of Litchfield. Just upstream of State Route 102 ...... +193 Tributary B No. 2 ...... Approximately 400 feet upstream of Forest Road ...... +820 Town of Greenfield. Approximately 2,600 feet upstream of Forest Road ...... +835 Naticook Lake ...... For the entire Lake ...... +208 Town of Merrimack.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Town of Bedford Maps are available for inspection at the Bedford Town Planning Department, 24 North Amherst Road, Bedford, NH 03110. Town of Greenfield Maps are available for inspection at the Greenfield Town Hall, 7 Sawmill Road, Greenfield, NH 03047. Town of Hillsborough Maps are available for inspection at the Hillsborough Town Planning Department, 29 School Street, Hillsborough, NH 03244. Town of Hudson Maps are available for inspection at the Hudson Town Planning Department, 12 School Street, Hudson, NH 03051. Town of Litchfield Maps are available for inspection at the Litchfield Town Hall, 2 Liberty Way, Suite 1, Litchfield, NH 03052. Town of Lyndeborough Maps are available for inspection at the Lyndeborough Town Hall, 9 Citizens Hall Road, Lyndeborough, NH 03082. Town of Merrimack Maps are available for inspection at the Merrimack Town Hall, 6 Baboosic Lake Road, Merrimack, NH 03054. City of Nashua Maps are available for inspection at the City of Nashua Planning Department, 229 Main Street, Nashua, NH 03060. Town of Pelham Maps are available for inspection at the Town of Pelham Planning Department, 6 Village Green, Pelham, NH 03076. Town of Peterborough Maps are available for inspection at the Town of Peterborough Planning Department, One Grove Street, Peterborough, NH 03458.

Hunterdon County, New Jersey, and Incorporated Areas FEMA Docket No.: B–1003

Back Brook ...... Upstream of Van Lieu’s Rd ...... +119 Township of East Amwell. Upstream of Route 179 ...... +195 First Neshanic River ...... Downstream of U.S. Route 202 ...... +148 Township of Raritan. Upstream of Railroad ...... +160 Holland Brook ...... Downstream of Hillcrest/Centerville Rd ...... +101 Township of Readington. Upstream of Holland Brook Rd ...... +148 Neshanic River ...... Downstream of Rainbow Hill Rd ...... +104 Township of East Amwell. Downstream of Old York Rd ...... +125 Neshanic River ...... Upstream of Everitt Rd ...... +128 Township of Raritan. Downstream of Kuhl Rd ...... +137 Second Neshanic River ...... Upstream of U.S. Route 202 ...... +143 Township of Raritan. Upstream of Joanna Farm Rd ...... +172

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

South Branch Raritan River .. Downstream of Old York Rd ...... +97 Township of Raritan. Downstream of Railroad ...... +107 South Branch Raritan River .. Upstream of Higginsville Rd ...... +92 Township of Readington. Downstream of Rockafellows Mills Rd ...... +104 Third Neshanic River ...... Downstream of U.S. Route 202 ...... +140 Township of Raritan. Upstream of Everitt Rd ...... +152 Walnut Brook ...... Upstream of Railroad ...... +160 Township of Raritan. Upstream of Mine Rd ...... +191 Walnut Brook ...... Upstream of Corporate Limits ...... +170 Borough of Flemington. Upstream State Route 12 ...... +180

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Borough of Flemington Maps are available for inspection at the Borough Hall, 38 Park Avenue, Flemington, NJ 08822. Township of East Amwell Maps are available for inspection at the Municipal Building, 1070 Route 202/31, Ringoes, NJ 08551–1051. Township of Raritan Maps are available for inspection at the Municipal Building, 1 Municipal Drive, Flemington, NJ 08822. Township of Readington Maps are available for inspection at the Municipal Building, 509 Route 523, Whitehouse Station, NJ 08889.

Monmouth County, New Jersey, and Incorporated Areas Docket No.: FEMA–B–7783

Big Brook ...... At Boundary Road ...... +79 Township of Colts Neck. Approximately 34 feet upstream of Boundary Road ...... +79 Burkes Creek ...... Approximately 957 feet upstream of Rutgers Road ...... +100 Township of Howell. Approximately 904 feet upstream of Rutgers Road ...... +100 Deal Lake ...... Entire shoreline ...... +10 Borough of Interlaken. Deal Tributary 1 ...... At Wickapecko Drive ...... +11 Borough of Interlaken. Approximately 342 feet downstream of Wickapecko Drive .. +11 Doctors Creek ...... Approximately 915 feet upstream of South Main Street ...... +72 Township of Upper Freehold. Approximately 2,565 feet upstream of South Main Street .... +72 At Breza Road ...... +60 Approximately 57 feet upstream of Breza Road ...... +60 Hollow Brook ...... Approximately 133 feet upstream of Ridge Avenue ...... +13 City of Asbury Park. Approximately 176 feet upstream of Ridge Avenue ...... +13 Little Silver Creek Tributary Approximately 95 feet downstream of Harding Road ...... +14 Borough of Little Silver. 2B. Approximately 40 feet upstream of Harding Road ...... +24 Manalapan Brook ...... At County boundary ...... +76 Township of Manalapan, Township of Millstone. Approximately 510 feet upstream of Moonlight Court ...... +181 Manalapan Brook Tributary A At confluence with Manalapan Brook ...... +87 Township of Manalapan. Approximately 1,000 feet upstream of confluence with +89 Manalapan Brook. Manalapan Brook Tributary B At confluence with Manalapan Brook ...... +123 Township of Manalapan. Approximately 220 feet upstream of confluence with +123 Manalapan Brook. Musquash Brook ...... Approximately 3,350 feet downstream of Brighton Avenue .. +9 Borough of Neptune City. Approximately 40 feet downstream of Brighton Avenue ...... +23 North Branch Wreck Pond .... At Railroad ...... +8 Borough of Spring Lake Heights. Approximately 1,147 feet upstream of State Highway 71 .... +8 Poly Pond Brook ...... Approximately 944 feet downstream of State Highway 71 ... +17 Borough of Spring Lake Heights. Approximately 1,563 feet upstream of State Highway 71 .... +17 Raritan Bay ...... Approximately 1,035 feet east of Rose Lane ...... +11 Township of Hazlet, Borough of Keansburg, Borough of Union Beach, Township of Middletown. Approximately 570 feet northwest of the intersection of +11 State Highway 36 and Laurel Avenue. Approximately 480 feet east of William Street ...... +11

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Approximately 1,570 feet south of the intersection of State +11 Highway 36 and Thompson Avenue. Shark River ...... Approximately 235 feet downstream of Steiner Avenue ...... +9 Borough of Neptune City. Approximately 1,450 feet downstream of County Highway +9 17. Still House Brook ...... At confluence with Manalapan Brook ...... +93 Township of Manalapan. Approximately 600 feet upstream of confluence with +93 Manalapan Brook. Swimming River ...... At Swimming River Road ...... +22 Township of Colts Neck. Thornes Creek ...... At Raritan and Sandy Hook Bay Beach Erosion and Hurri- +11 Township of Hazlet, Borough cane Project Closure Gate. of Union Beach. At State Highway 36 ...... +11 Waackaack Creek ...... At Raritan and Sandy Hook Bay Beach Erosion and Hurri- +11 Township of Hazlet, Borough cane Project Closure Gate. of Keansburg, Borough of Union Beach, Township of Holmdel. Approximately 800 feet downstream of Middle Road ...... +11 Watson Creek ...... Approximately 1,150 feet downstream of Blansing Avenue +20 Borough of Manasquan. Extension. Approximately 960 feet downstream of Blansing Avenue +20 Extension. Whale Pond Brook ...... At Hope Road ...... +73 Borough of Tinton Falls. Approximately 54 feet upstream of Hope Road ...... +73 Yellow Brook 2 ...... Approximately 600 feet downstream of Hunt Road ...... +98 Township of Colts Neck. Approximately 124 feet downstream of Hunt Road ...... +98

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Borough of Interlaken Maps are available for inspection at the Interlaken Borough Hall, 100 Grasmere Avenue, Interlaken, NJ 07712. Borough of Keansburg Maps are available for inspection at the Keansburg Borough Municipal Building, 29 Church Street, Keansburg, NJ 07734. Borough of Little Silver Maps are available for inspection at the Little Silver Borough Hall, 480 Prospect Avenue, Little Silver, NJ 07739. Borough of Manasquan Maps are available for inspection at the Manasquan Borough Municipal Building, 201 East Main Street, Manasquan, NJ 08736. Borough of Neptune City Maps are available for inspection at the Borough of Neptune City Municipal Building, 106 West Sylvania Avenue, Neptune City, NJ 07753. Borough of Spring Lake Heights Maps are available for inspection at the Spring Lake Heights Borough Hall, 555 Brighton Avenue, Spring Lake Heights, NJ 07762. Borough of Tinton Falls Maps are available for inspection at the Tinton Falls Borough Municipal Building, 556 Tinton Avenue, Tinton Falls, NJ 07724. Borough of Union Beach Maps are available for inspection at the Union Beach Borough Municipal Building, 650 Poole Avenue, Union Beach, NJ 07735. City of Asbury Park Maps are available for inspection at the City of Asbury Park Municipal Building, 1 Municipal Plaza, Asbury Park, NJ 07712. Township of Colts Neck Maps are available for inspection at the Colts Neck Town Hall, 124 Cedar Drive, Colts Neck, NJ 07722. Township of Hazlet Maps are available for inspection at the Hazlet Township Municipal Building, 1766 Union Avenue, Hazlet, NJ 07730. Township of Holmdel Maps are available for inspection at the Holmdel Township Hall, 4 Crawfords Corner Road, Holmdel, NJ 07733. Township of Howell Maps are available for inspection at the Howell Township Municipal Building, 251 Preventorium Road, Howell, NJ 07731. Township of Manalapan Maps are available for inspection at the Manalapan Township Municipal Building, 120 Route 522 and Taylors Mill Road, Manalapan, NJ 07726. Township of Middletown Maps are available for inspection at the Middletown Township Municipal Building, 1 Kings Highway, Middletown, NJ 07748. Township of Millstone Maps are available for inspection at the Millstone Township Municipal Building, 470 Stagecoach Road, Millstone, NJ 08510. Township of Upper Freehold

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Maps are available for inspection at the Upper Freehold Township Municipal Building, 314 Route 539, Cream Ridge, NJ 08514.

Suffolk County, New York, and Incorporated Areas Docket No.: FEMA–B–1012

Atlantic Ocean ...... Approximately 700 feet west of the Oak Beach Road dead +8 Town of Babylon, Shinnecock end. Indian Reservation, Town of Brookhaven, Town of East Hampton, Town of Islip, Town of South- ampton, Village of Amity- ville, Village of Babylon, Village of Bellport, Village of East Hampton, Village of Lindenhurst, Village of Ocean Beach, Village of Quogue, Village of Sagaponack, Village of Saltaire, Village of South- ampton, Village of West Hampton Dunes, Village of Westhampton Beach. Approximately 160 feet south of Beach Lane extended ...... +23 Barley Field Cove ...... Approximately 1,000 feet east of the intersection of East +8 Town of Southold. End Drive and Brooks Point Road. Shoreline approximately 1,425 feet east of the intersection +16 of East End Drive and Brooks Point Road. Bellport Bay ...... At the intersection of Thorn Hedge Road and Bayberry +5 Village of Bellport, Town of Road. Brookhaven, Village of Patchogue. Shoreline at southwestern end of South Howells Point +8 Road. Block Island Sound ...... Approximately 850 feet northwest of the intersection of +5 Town of East Hampton, Town Montauk County Park Road and East Lake Drive. of Southold. Fishers Island—Shoreline approximately 900 feet east of +21 the intersection of Montauk Highway and Old Montauk Highway. Block Island Sound ...... Approximately 1,700 feet southwest of the intersection of #2 Town of East Hampton. Soundview Drive and Captain Kidd’s Path. Bostwick Bay ...... Gardiners Island—Approximately 1.4 miles northwest of the +7 Town of East Hampton. intersection of Gardiner Island Road and 4wd Road. Gardiners Island—Approximately 1.2 miles northwest of the +12 intersection of Gardiner Island Road and 4wd Road. Centerport Harbor ...... Approximately 500 feet south of the intersection of Pros- +9 Town of Huntington, Village pect Road and Mill Dam Road. of Huntington Bay, Village of North Haven. Shoreline approximately 1,500 feet northeast of the inter- +14 section of Monroe Drive and Garfield Street. Cocomount Cove...... Approximately 500 feet northwest of the intersection of +8 Town of Southold. East End Drive and Brooks Point Road. Shoreline approximately 735 feet northwest of the intersec- +13 tion of East End Drive and Brooks Point Road. Coecles Inlet ...... Burns Road, approximately 1,200 feet east of the intersec- +7 Town of Shelter Island, Vil- tion with North Cartwright Avenue. lage of Dering Harbor. Shoreline at eastern end of Burns Road ...... +10 Cold Spring Harbor ...... Approximately 150 feet north of the intersection of Shore +9 Town of Huntington. Road and Spring Street. Approximately 1,325 feet west of the intersection of Dog- +33 wood Lane and Fort Hill Drive. Conscience Bay ...... Approximately 175 feet southwest of the intersection of +8 Town of Brookhaven, Village Bobs Lane and Chickadee Way. of Old Field, Village of Poquott, Village of Port Jef- ferson. Shoreline approximately 1,340 feet west of the intersection +14 of Gaul Road North and Gun Path. Cutchogue Harbor ...... Shoreline approximately 50 feet west of the intersection of +6 Town of Southold. Skunk Lane and Sterling Road.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Shoreline approximately 1,260 feet south of the intersection +16 of Haywaters Road and West Cove Road. At the intersection of Orchard Street and 1st Street ...... #1 Approximately 65 feet northwest of the southeastern ter- #2 minus of Old Harbor Road. Dering Harbor ...... Approximately 700 feet east of the intersection of North +5 Town of Shelter Island, Vil- Ferry Road and W Neck Road. lage of Dering Harbor, Vil- lage of Greenport. Shoreline approximately 540 feet north of the intersection +17 of North Ferry Road and Winthrop Road. Duck Island Harbor ...... Approximately 200 feet east of the end of South Harbor +11 Town of Huntington, Village Road. of Asharoken, Village of Huntington Bay, Village of Northport. Approximately 1,200 feet southeast of the intersection of +16 Ponnell Road and South Harbor Road. Fishers Island Sound ...... Approximately 1,400 feet north of the intersection of East +7 Town of Southold. End Drive and Clay Point Road. Approximately 1,600 feet northwest of the intersection of +46 Fox Avenue and Crescent Avenue. Flanders Bay ...... At the intersection of Meeting House Creek Road and Har- +6 Town of Riverhead, Town of bor Road. Southampton. Shoreline approximately 1,850 feet east of the intersection +13 of Indian Point Road and Circle Drive. Flanders Bay ...... At the intersection of Indian Point Road and Circle Drive .... #2 Town of Riverhead. Approximately 75 feet east of the intersection of Harbor #2 Road and Meeting House Creek Road. Fort Pond Bay ...... Approximately 425 feet west of the intersection of South +5 Town of East Hampton. Erie Avenue and South Embassy Street. Shoreline approximately 1,500 feet west of the end of Wills +19 Point Road. Shoreline approximately 600 feet north of the end of Wills #2 Point Road. Shoreline approximately 1,600 feet north of the end of Wills #2 Point Road. Shoreline approximately 850 feet south of the end of Wills #2 Point Road. Gardiners Bay ...... Approximately 420 feet southwest of the intersection of +5 Town of East Hampton, Town Kings Point Road and Hog Creek Lane. of Shelter Island, Town of Southold, Village of Dering Harbor. Along the shoreline, approximately 1,500 feet west of Plum +19 Gut Harbor. Great Peconic Bay ...... At the intersection of West Street and 2nd Street ...... +6 Town of Riverhead, Town of Southampton, Town of Southold. Approximately 750 feet east 1st Street and Bray Avenue .... +11 West Street approximately 300 feet southeast of the inter- #1 section with 2nd Street. Oak Street approximately 175 feet southeast of the inter- #2 section with Bayside Avenue. Great South Bay ...... Intersection of Gibson Street and Huma Avenue ...... +4 Town of Babylon, Town of Islip, Village of Amityville, Village of Babylon, Village of Brightwaters, Village of Lindenhurst. At southern end of Norman Avenue ...... +10 Greenport Harbor ...... At the intersection of Sterling Avenue and Sterling Street ... +6 Town of Southold, Town of Shelter Island, Village of Greenport. Shoreline approximately 170 feet east-southeast of the +10 intersection of Sterling Avenue and Sterling Street. Hay Harbor ...... Approximately 300 feet north of the intersection of Eques- +11 Town of Southold. trian Avenue and Winthrop Drive. Approximately 0.5 mile north of the intersection of Eques- +16 trian Avenue and Winthrop Drive.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Huntington Bay ...... Approximately 50 feet south of the intersection of Surf Lane +9 Town of Huntington, Village and Lighthouse Road. of Asharoken, Village of Huntington Bay, Village of Lloyd Harbor. Shoreline approximately 1,000 feet east of the end of Cres- +21 cent Beach Drive. Huntington Harbor ...... Approximately 400 feet south of the intersection of Bouton +9 Town of Huntington, Village Road and Pine Point Road. of Huntington Bay, Village of Lloyd Harbor. Shoreline approximately 760 feet southeast of the intersec- +12 tion of Bouton Road and Pine Point Road. Lake Montauk ...... Farragut Road, approximately 1,400 feet northeast of the +5 Town of East Hampton. intersection with West Lake Drive. Approximately 350 feet west of the intersection of Prospect +11 Hill Lane and East Lake Drive. Little Peconic Bay ...... Approximately 350 feet south of the intersection of Arrow- +6 Town of Southold. head Lane and Campfire Lane. Approximately 1,700 feet northeast of the intersection of +16 Arrowhead Lane and Campfire Lane. Approximately 400 feet northeast of the intersection of Nas- #1 sau Point Road and Broadwaters Road. Approximately 400 feet southeast of the intersection of #2 Nassau Point Road and Broadwaters Road. Lloyd Harbor ...... Approximately 700 feet west of the intersection of Lloyd +9 Village of Lloyd Harbor. Harbor Road and Fiddlers Green Drive. Shoreline approximately 825 feet east-northeast of the +14 intersection of Lloyd Harbor Road and Fiddlers Green Drive. Long Island Sound ...... Approximately 1,300 feet north of the intersection of Main +6 Village of Lloyd Harbor, Town Road and Cove Beach Road. of Brookhaven, Town of Huntington, Town of Riverhead, Town of Shelter Island, Town of Smithtown, Town of Southold, Village of Asharoken, Village of Belle Terre, Village of Dering Harbor, Village of Greenport, Village of Head of The Harbor, Village of Huntington Bay, Village of Nissequogue, Village of Northport, Village of Old Field, Village of Poquott, Village of Port Jefferson, Village of Shoreham. Approximately 500 feet west of East Point on Plum Island .. +46 Long Island Sound ...... At the intersection of Carole Road and Old Cove Road ...... #2 Town of Southold. Majors Harbor ...... Along the shoreline, approximately 2,200 feet southeast +5 Town of Shelter Island, Town from the end of Mashomack Preserve Road. of Southampton, Village of North Haven. Shoreline at Majors Point ...... +8 Moriches Bay ...... At the intersection of South County Road and Raynor Drive +7 Town of Brookhaven, Poospatuck Indian Res- ervation, Town of South- ampton, Village of West Hampton Dunes, Village of Westhampton Beach. Shoreline, approximately 400 feet north of the intersection +12 of Dune Road and Dune Lane. Napeague Bay ...... Approximately 150 feet south of the intersection of Little +5 Town of East Hampton. Alberts Road and Alberts Landing. Shoreline approximately 0.6 mile west of the intersection of +14 Bayview Avenue and Lazy Point Road. Approximately 1,400 feet southeast of the intersection of #1 Waters Edge and Barnes Hole Road. Nicoll Bay ...... At the intersection of Cross Road and West Shore Road .... +5 Town of Islip.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Approximately 700 feet south of the intersection of Shore +7 Drive and Edgewood Avenue. Northeast Branch Approximately 425 feet upstream of Branch Drive ...... +46 Town of Smithtown. Nissequogue River. Approximately 525 feet upstream of Branch Drive ...... +46 Northport Bay ...... Approximately 45 feet west of the intersection of Eatons +9 Town of Huntington, Village Neck Road and Steers Avenue. of Asharoken, Village of Huntington Bay, Village of Northport. Shoreline approximately 1,100 feet northeast of the inter- +21 section of East Neck Road and Crest Road. Northport Harbor ...... At the intersection of Scudder Avenue and Bayview Ave- +9 Town of Huntington, Village nue. of Northport. Approximately 1,400 feet northwest of the intersection of +16 Bluff Point Road and Duffy Road. Northwest Harbor ...... Approximately 500 feet north of the intersection of Alewife +5 Town of East Hampton. Brook Road and Terrys Trail. Shoreline approximately 1,900 feet north of the western ter- +19 minus of Alewife Brook Road. Noyack Bay ...... At the intersection of Bay Avenue and Noyack Avenue ...... +6 Town of Southampton, Vil- lage of North Haven, Vil- lage of Sag Harbor. Shoreline approximately 560 feet west of the intersection of +23 Bay View Court and North Haven Way. Orient Harbor ...... At the intersection of Bay Avenue and Rabbit Lane ...... +6 Town of Southold, Town of Shelter Island, Village of Dering Harbor. Shoreline at the southeastern end of Bay Avenue ...... +9 Approximately 875 feet northeast of the intersection of East #1 Gillette Drive and Cleaves Point Road. Oyster Bay ...... Approximately 150 feet north of the intersection of Shore +9 Town of Huntington, Village Road and Spring Street. of Huntington Bay, Village of Lloyd Harbor. Approximately 750 feet southwest of Turtle Lane and Mal- +39 lard Drive. Patchogue Bay ...... At the intersection of Harrison Street and South Ocean Av- +5 Village of Patchogue, Town enue. of Brookhaven, Town of Islip. Shoreline at southern end of Durkee Lane ...... +8 Pipes Cove...... Approximately 190 feet north of the intersection of +6 Town of Southold, Town of Bayshore Road and August Road. Shelter Island, Village of Greenport. Shoreline approximately 220 feet east of the intersection of +13 Bayshore Road and August Road. Port Jefferson Harbor ...... Approximately 750 feet northwest of the intersection of Bar- +8 Town of Brookhaven, Village num Avenue and Maple Place. of Belle Terre, Village of Old Field, Village of Poquott, Village of Port Jef- ferson. Shoreline approximately 350 feet northeast of the intersec- +24 tion of Washington Street and Chestnut Avenue. Reeves Bay ...... Approximately 100 feet south of the intersection of Flan- +7 Town of Southampton, Town ders Road and Wood Road Trail. of Riverhead. Approximately 300 feet west of the intersection of Long +10 Neck Boulevard and Fantasy Drive. Sag Harbor Bay ...... Approximately 300 feet south of the intersection of Wood- +6 Village of Sag Harbor, Town land Drive and Division Avenue. of East Hampton, Village of North Haven. Shoreline approximately 190 feet north of the intersection +13 of Meredith Avenue and Terry Drive. Shelter Island Sound ...... Approximately 700 feet southwest of the intersection of +5 Town of Shelter Island, Town Nostrand Parkway and Bootleggers Alley. of Southold, Village of North Haven. Approximately 550 feet west of the intersection of North +23 Haven Way and On the Bluff.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Shelter Island Sound ...... Approximately 140 feet northwest of the intersection of #1 Town of Shelter Island, Town Peconic Avenue and Brander Parkway. of Southold, Village of Dering Harbor, Village of North Haven. Approximately 800 feet west-southwest of the intersection #2 of Nostrand Parkway and Bootleggers Alley. Shinnecock Bay ...... Approximately 100 feet east of the intersection of Bonita +8 Town of Southampton, Vil- Road and Whiting Road. lage of Quogue. Shoreline approximately 900 feet northeast of the intersec- +14 tion of Dune Road and Triton Lane. Smith Cove ...... Approximately 370 feet north of the intersection of Thomp- +5 Town of Shelter Island, Vil- son Road and Irene Lane. lage of North Haven. Approximately 700 feet southeast of the intersection of +21 Thompson Road and Irene Lane. Smithtown Bay ...... At the intersection of Riviera Drive and Magnolia Drive ...... +9 Town of Smithtown, Village of Nissequogue. Approximately 1,200 feet north of the intersection of Old +17 Dock Road and Upper Dock Road. Southold Bay ...... Approximately 850 feet east of the intersection of Route 25 +6 Town of Southold, Town of and Town Harbor Lane. Shelter Island. Approximately 275 feet north of the intersection of Basin +21 Road and Paradise Point Road. Tobaccolot Bay ...... Approximately 1.1 miles east of the intersection of Gardiner +6 Town of East Hampton. Island Road and 4WD Road. Approximately 1.4 miles east of the intersection of Gardiner +11 Island Road and 4WD Road. West Harbor ...... Approximately 0.6 mile east of the intersection of East End +7 Town of Southold. Drive and Peninsula Road. Shoreline, approximately 1,200 feet east of the intersection +19 of Montauk Avenue and Hedge Street. West Neck Harbor ...... Approximately 1,000 feet west of the intersection of Lake +5 Town of Shelter Island, Vil- Drive and South Midway Road. lage of North Haven. Shoreline approximately 1,500 feet south of the intersection +8 of Sea Gate Drive and South Midway Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Poospatuck Indian Reservation Maps are available for inspection at the Poospatuck Indian Reservation Administrative Offices, 138 Eleanor Avenue, Mastic, NY 11950. Shinnecock Indian Reservation Maps are available for inspection at the Shinnecock Indian National Tribal Office, 100 Church Street, Southampton, NY 11969. Town of Babylon Maps are available for inspection at the Babylon Town Hall, 200 East Sunrise Highway, Lindenhurst, NY 11757. Town of Brookhaven Maps are available for inspection at the Brookhaven Town Hall, 1 Independence Hill, Farmingville, NY 11738. Town of East Hampton Maps are available for inspection at the East Hampton Town Hall, 159 Pantigo Road, East Hampton, NY 11937. Town of Huntington Maps are available for inspection at the Huntington Town Hall, 100 Main Street, Huntington, NY 11743. Town of Islip Maps are available for inspection at the Islip Town Hall, 655 Main Street, Islip, NY 11751. Town of Riverhead Maps are available for inspection at the Riverhead Town Hall, 201 Howell Avenue, Riverhead, NY 11901. Town of Shelter Island Maps are available for inspection at the Shelter Island Town Hall, 38 North Ferry Road, Shelter Island, NY 11964. Town of Smithtown Maps are available for inspection at the Smithtown Town Hall, 99 West Main Street, Smithtown, NY 11787. Town of Southampton Maps are available for inspection at the Southampton Town Hall, 116 Hampton Road, Southampton, NY 11968. Town of Southold Maps are available for inspection at the Southold Town Hall, 53095 Route 25, Southold, NY 11971. Village of Amityville Maps are available for inspection at the Amityville Village Hall, 21 Greene Avenue, Amityville, NY 11701.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Village of Asharoken Maps are available for inspection at the Asharoken Village Hall, 1 Asharoken Avenue, Northport, NY 11768. Village of Babylon Maps are available for inspection at the Babylon Village Hall, 153 West Main Street, Babylon, NY 11702. Village of Belle Terre Maps are available for inspection at the Belle Terre Village Hall, 1 Cliff Road, Belle Terre, NY 11777. Village of Bellport Maps are available for inspection at the Bellport Village Hall, 29 Bellport Lane, Bellport, NY 11713. Village of Brightwaters Maps are available for inspection at the Brightwaters Village Hall, 40 Seneca Drive, Brightwaters, NY 11718. Village of Dering Harbor Maps are available for inspection at the Dering Harbor Village Hall, 23 Locust Point Road, Shelter Island Heights, NY 11965. Village of East Hampton: Maps are available for inspection at the East Hampton Village Hall, 86 Main Street, East Hampton, NY 11937. Village of Greenport Maps are available for inspection at the Greenport Village Hall, 236 3rd Street, Greenport, NY 11944. Village of Head of The Harbor Maps are available for inspection at the Head of the Harbor Village Hall, 500 North Country Road, St. James, NY 11780. Village of Huntington Bay Maps are available for inspection at the Huntington Bay Village Hall, 244 Vineyard Road, Huntington Bay, NY 11743. Village of Lindenhurst Maps are available for inspection at the Lindenhurst Village Hall, 430 South Wellwood Avenue, Lindenhurst, NY 11757. Village of Lloyd Harbor Maps are available for inspection at the Lloyd Harbor Village Hall, 32 Middle Hollow Road, Huntington, NY 11743. Village of Nissequogue Maps are available for inspection at the Nissequogue Village Hall, 631 Moriches Road, St. James, NY 11780. Village of North Haven Maps are available for inspection at the North Haven Village Hall, 335 Ferry Road, Sag Harbor, NY 11963. Village of Northport Maps are available for inspection at the Northport Village Hall, 224 Main Street, Northport, NY 11768. Village of Ocean Beach Maps are available for inspection at the Ocean Beach Village, 315 Cottage Walk, Ocean Beach, NY 11770. Village of Old Field Maps are available for inspection at the Old Field Village Hall, 207 Old Field Road, Setauket, NY 11733. Village of Patchogue Maps are available for inspection at the Patchogue Village Hall, 14 Baker Street, Patchogue, NY 11772. Village of Poquott Maps are available for inspection at the Poquott Village Hall, 45 Birchwood Avenue, East Setauket, NY 11733. Village of Port Jefferson Maps are available for inspection at the Port Jefferson Village Hall, 121 West Broadway, Port Jefferson, NY 11777. Village of Quogue Maps are available for inspection at the Quogue Village Hall, 7 Village Lane, Quogue, NY 11959. Village of Sag Harbor Maps are available for inspection at the Sag Harbor Village Hall, 22 Main Street, Sag Harbor, NY 11963. Village of Sagaponack Maps are available for inspection at the Sagaponack Village Hall, 20 Sagg Main Street, Sagaponack, NY 11962. Village of Saltaire Maps are available for inspection at the Saltaire Village Hall, 103 Broadway, Saltaire, NY 11706. Village of Shoreham Maps are available for inspection at the Shoreham Village Hall, 80 Woodville Road, Shoreham, NY 11786. Village of Southampton Maps are available for inspection at the Southampton Village Hall, 23 Main Street, Southampton, NY 11968. Village of Westhampton Dunes Maps are available for inspection at the Westhampton Dunes Village Hall, 4 Arthur Street, Westhampton Beach, NY 11977. Village of Westhampton Beach Maps are available for inspection at the Westhampton Beach Village Hall, 165 Mill Road, Westhampton Beach, NY 11978.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Ulster County, New York, and Incorporated Areas FEMA Docket No.: B–7748

Rondout Creek ...... Approximately 500 feet downstream of the Conrail Bridge +9 City of Kingston, Town of Structure. Esopus, Town of Rosendale, Town of Ulster. Approximately 200 feet upstream of Lawrenceville Road +91 (State Route 213). Saw Kill ...... At confluence with Esopus Creek ...... +151 Town of Kingston, Town of Ulster. Approximately 0.7 miles upstream of Powder Mill Road ...... +255 Twaalfskill Brook ...... At confluence with Rondout Creek ...... +10 City of Kingston. Approximately 55 feet upstream of Brook Street ...... +54

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Kingston Maps are available for inspection at City Hall, 420 Broadway, Kingston, NY 12401. Town of Esopus Maps are available for inspection at the Esopus Town Hall, 172 Broadway, Port Ewen, NY 12466. Town of Kingston Maps are available for inspection at the Kingston Town Hall, 906 Sawkill Road, Kingston, NY 12401. Town of Rosendale Maps are available for inspection at the Rosendale Town Hall, 424 Main Street, Rosendale, NY 12742. Town of Ulster Maps are available for inspection at the Ulster Town Hall, 1 Town Hall Drive, Lake Katrine, NY 12449.

Kay County, Oklahoma, and Incorporated Areas FEMA Docket No.: B–7755

Tributary B (Arkansas River) At the confluence with Tributary C ...... +941 City of Ponca City, Unincor- porated Areas of Kay County. Approximately just downstream of the intersection of Hart- +1037 ford Avenue. Tributary C (Arkansas River) Upstream of Lake Road at the Confluence with Tributary B +941 City of Ponca City, Unincor- porated Areas of Kay County. Approximately 100 feet upstream of the intersection of +1038 Donner Avenue. Tributary D (Arkansas River) At intersection with Lake Road ...... +943 City of Ponca City, Unincor- porated Areas of Kay County. Approximately 887 feet upstream from intersection with +1039 Kingston Road. Tributary E (Arkansas River) Upstream of Virginia Avenue at the intersection of East +970 City of Ponca City, Unincor- Overbrook Avenue. porated Areas of Kay County. Approximately 300 feet upstream of the intersection with +994 Donahoe Drive. Tributary G (Arkansas River) Approximately 100 feet downstream of Seventh Street at +961 City of Ponca City, Unincor- the intersection with Poplar Avenue. porated Areas of Kay County. Approximately 100 feet upstream of Second Street ...... +990 Tributary G Left Tributary 1 At the confluence with Tributary G (Arkansas River) ...... +962 City of Ponca City, Unincor- (Arkansas River). porated Areas of Kay County. Approximately 100 feet upstream of Virginia Avenue ...... +966 Tributary I (Arkansas River) .. At the intersection with Seventh Street ...... +945 City of Ponca City, Unincor- porated Areas of Kay County. Approximately 290 feet upstream from intersection with S. +953 6th Street.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Tributary L (Bois d’Arc Creek) At the intersection with North Flormable Street ...... +958 City of Ponca City, Unincor- porated Areas of Kay County. Approximately 100 feet upstream of Olympia Street ...... +978 Tributary M (Bois d’Arc At the intersection with Highland Avenue ...... +967 City of Ponca City, Unincor- Creek). porated Areas of Kay County. At intersection with Bradley Avenue ...... +1036 Tributary N (Bois d’Arc Approximately 168 feet upstream from intersection with Ori- +1034 City of Ponca City, Unincor- Creek). ole Street. porated Areas of Kay County. Approximately 2,558 feet upstream from intersection with +1042 Oriole Street. Tributary O (Bois d’Arc At the intersection with Liberty Avenue ...... +986 City of Ponca City, Unincor- Creek). porated Areas of Kay County. Approximately 1,038 feet upstream from intersection with +1008 Ast Street. Tributary O Tributary (Bois Approximately 767 feet upstream from intersection with Lib- +990 City of Ponca City, Unincor- d’Arc Creek). erty Avenue. porated Areas of Kay County. Approximately 2,463 feet upstream from intersection with +1003 Liberty Avenue. Tributary W (Arkansas River) Approximately 222 feet upstream from intersection with LA +933 City of Ponca City, Unincor- Cann Drive. porated Areas of Kay County. Approximately 3,099 feet upstream from intersection with +985 LA Cann Drive.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Blackwell Maps are available for inspection at 221 West Blackwell Avenue, Blackwell, OK 74631. City of Kaw City Maps are available for inspection at 115 South Maple Avenue, Newkirk, OK 74647. City of Newkirk Maps are available for inspection at 107 Main Street, Newkirk, OK 74647. City of Ponca City Maps are available for inspection at 516 East Grand Avenue, Ponca City, OK 74607. City of Tonkawa Maps are available for inspection at 113 South 7th Street, Tonkawa, OK 74653. Town of Braman Maps are available for inspection at 302 Broadway, Braman, OK 74632. Unincorporated Areas of Kay County Maps are available for inspection at 115 South Maple Avenue, Newkirk, OK 74647.

York County, Pennsylvania, and Incorporated Areas FEMA Docket No.: B–1017

Bald Eagle Creek ...... Approximately 170 feet downstream of Bald Eagle Road .... +363 Township of Fawn. 20 feet downstream of Bald Eagle Road ...... +363 Barsinger Creek & Barsinger Approximately 550 feet upstream on Arbor Road ...... +521 Township of North Hopewell. Creek Tributary 1. Approximately at Stine Hill Road ...... +660 Bennett Run ...... At Front Street Bridge over Bennett Run ...... +423 Township of Fairview. Approximately 230 feet downstream of Front Street ...... +423 Centerville Creek...... Approximately at confluence of South Branch Codorus +534 Township of Shrewsbury. Creek and Centerville Creek. Approximately 300 feet west of intersection of Fissels +623 Church Road and Ridge Road. Approximately 1,500 feet downstream of the confluence of +671 Centerville Creek & Centerville Creek Tributary. Approximately 1,700 feet upstream of the confluence of +712 Centerville Creek & Centerville Creek Tributary.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Codorus Creek ...... Approximately 2,000 feet upstream of Furnace Road ...... +275 Township of East Man- chester. Approximately 7,500 feet upstream of Furnace Road ...... +275 Codorus Creek ...... Approximately 2,000 feet upstream of Park Road ...... +519 Township of North Codorus. Approximately 500 feet upstream of Park Road at cross +528 section DC. Conewago Creek...... Approximately 1,800 feet upstream of confluence of +290 Township of Conewago. Conewago and Little Conewago Creek. Approximately 350 feet downstream of Bull Road ...... +344 Dogwood Run ...... Approximately 2,400 feet upstream of Greenhouse Road ... +677 Township of Franklin. Approximately 3,300 feet upstream of Greenhouse Road ... +692 Dogwood Run ...... Approximately 60 feet downstream of the confluence of +526 Borough of Dillsburg. Dogwood Run and Tributary A. Approximately 1,400 feet upstream of Old Mill Road ...... +531 Dogwood Run ...... Approximately 60 feet downstream of the confluence of +526 Township of Carroll. Dogwood Run and Tributary A. Approximately 2,000 feet upstream of Camp Ground Road +604 East Branch Codorus Creek Approximately 450 feet downstream of Log Road ...... +494 Township of Springfield. Approximately 600 feet downstream of Hess Farm Road .... +518 Hartman Run...... Approximately 200 feet Southeast of intersection of +389 Borough of Manchester. Lightner Avenue and Walnut Street. Approximately 1,500 feet downstream of Forge Hill Road ... +418 Kreutz Creek ...... Approximately 200 feet South of the end of Owl Valley +424 Township of Windsor, Town- Road. ship of Lower Windsor. Approximately 325 feet South of the end of Owl Valley +424 Road. Little Conewago Creek...... Approximately 800 feet upstream of confluence of +289 Township of Conewago. Conewago and Little Conewago Creek. Approximately 700 feet downstream of Harrisburg Balti- +323 more Expressway. Little Conewago Creek ...... Approximately at Bull Road and Hilton Avenue ...... +374 Township of Dover. Approximately at Carlisle Road ...... +381 Muddy Creek ...... Approximately at the confluence of Scott Creek & Muddy +220 Township of Lower Creek. Chanceford. Approximately at Bridgeton Road ...... +313 Pine Run ...... Approximately at confluence of Pine Run and Pine Run +551 Township of Windsor. Tributary 2. Approximately 900 feet downstream from the confluence of +587 Pine Run and Pine Run Tributary 1. South Branch Codorus Creek Approximately 2,000 feet upstream of intersection of Penn- +391 Township of North Codorus. sylvania Railroad and Days Mill Road. Approximately at confluence of South Branch Codorus +416 Creek & East Branch Codorus Creek. South Branch Codorus Creek Approximately at confluence of South Branch Creek & +478 Township of Springfield. South Branch Creek Tributary B. Approximately at confluence of South Branch Codorus +529 Creek & Centerville Creek. South Branch Codorus Creek Approximately 3,200 feet downstream from Dam ...... +519 Township of Heidelberg. Approximately 1,300 feet downstream from Dam ...... +519 Stony Run No. 1...... Approximately 850 feet downstream of intersection of +375 Township of Fairview. Andersontown Road and Brenneman Drive. Approximately at the intersection of Saw Mill Road and +419 South Wharf Road. Stony Run No. 3 ...... Approximately 80 feet downstream of Beaver Lane ...... +344 Township of Warrington. Approximately 1,450 feet upstream of Beaver Lane ...... +344 Susquehanna River ...... Approximately 3,000 feet East of Cooper Road ...... +112 Township of Peach Bottom. Approximately 800 feet upstream of Lay Road Access +113 Road. Tributary 1 (North Branch Approximately 450 feet upstream of Cabin Hollow Road ..... +542 Township of Carroll. Bermudian Creek). Approximately 1,300 feet downstream of Stony Run Road .. +571 Tyler Run ...... Approximately 2,000 feet upstream of Tri-Hill Drive ...... +478 Township of Spring Garden. Approximately 2,450 feet upstream of Tri-Hill Drive ...... +486

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

ADDRESSES Borough of Dillsburg Maps are available for inspection at the Municipal Building, 151 South Baltimore Street, Dillsburg, PA 17019. Borough of Manchester Maps are available for inspection at the Municipal Building, 225 South Main Street, Manchester, PA 17345. Township of Carroll Maps are available for inspection at the Municipal Building, 555 Chestnut Grove Road, Dillsburg, PA 17019. Township of Conewago Maps are available for inspection at the Municipal Building, 490 Copenhaffer Road, York, PA 17404. Township of Dover Maps are available for inspection at the Municipal Building, 2480 Wet Canal Road, Dover, PA 17315. Township of East Manchester Maps are available for inspection at the Municipal Building, 5080 North Sherman Street Extended, Mount Wolf, PA 17347. Township of Fairview Maps are available for inspection at the Municipal Building, 599 Lewisberry Road, New Cumberland, PA 17070. Township of Fawn Maps are available for inspection at the Municipal Building, 245 Alum Rock Road, New Park, PA 17352. Township of Franklin Maps are available for inspection at the Municipal Building, 150 Century Lane, Dillsburg, PA 17019. Township of Heidelberg Maps are available for inspection at the Municipal Building, 6424 York Road, Spring Grove, PA 17331. Township of Lower Chanceford Maps are available for inspection at the Municipal Building, 4120 Delta Road, Airville, PA 17302. Township of Lower Windsor Maps are available for inspection at the Township Office, 111 Walnut Valley Court, Wrightsville, PA 17368. Township of North Codorus Maps are available for inspection at the Municipal Building, 1986 Stoverstown Road, Spring Grove, PA 17362. Township of North Hopewell Maps are available for inspection at the Municipal Building, 13081 High Point Road, Felton, PA 17322. Township of Peach Bottom Maps are available for inspection at the Municipal Building, 545 Broad Street Extended, Delta, PA 17314. Township of Shrewsbury Maps are available for inspection at the Municipal Building, 12341 Susquehanna Trail South, Glen Rock, PA 17327. Township of Spring Garden Maps are available for inspection at the Administration Building, 558 Ogontz Street, York, PA 17403. Township of Springfield Maps are available for inspection at the Municipal Building, 9211 Susqehanna Trail South, Seven Valleys, PA 17327. Township of Warrington Maps are available for inspection at the Municipal Building, 3345 Rosstown Road, Wellsville, PA 17365. Township of Windsor Maps are available for inspection at the Municipal Building, 1480 Windsor Road, Red Lion, PA 17356.

Cocke County, Tennessee, and Incorporated Areas FEMA Docket No.: B–1013

Clear Creek ...... Approximately 2.2 miles upstream of the confluence of +1030 Unincorporated Areas of French Broad River. Cocke County. Approximately 927 feet upstream of the confluence of +1030 French Broad River. French Broad River/Douglas Approximately 4.7 miles downstream of US Highway 25 E +1002 Unincorporated Areas of Lake. Cocke County. Approximately 1.5 miles upstream of the confluence of Pi- +1014 geon River. Haney Branch ...... At the confluence of French Broad River ...... +1010 Unincorporated Areas of Cocke County. Approximately 1,290 feet upstream of Wynn Way ...... +1010 McCowan Creek ...... At the confluence of French Broad River ...... +1002 Unincorporated Areas of Cocke County. Approximately 1.1 miles upstream of the confluence of +1002 French Broad River. Nolichucky River ...... Approximately 1.2 miles upstream of Hale Road ...... +1022 Unincorporated Areas of Cocke County. Approximately 1.1 miles upstream of Glendale Road ...... +1044

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Cocke County Maps are available for inspection at the Cocke County Courthouse, 111 Court Avenue, Room 112, Newport, TN 37821.

Crockett County, Tennessee, and Incorporated Areas FEMA Docket No.: B–1003

South Fork of Forked Deer At the Crockett/Madison/Haywood county boundary ...... +319 Unincorporated Areas of River. Crockett County. Approximately 1,365 feet upstream of the confluence with +324 Connley Creek (At the Crockett/Madison county bound- ary).

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Crockett County Maps are available for inspection at the Courthouse, 1 South Bell Street, Alamo, TN 38001.

Dickson County, Tennessee, and Incorporated Areas FEMA Docket No.: B–1003

East Piney River ...... At the confluence of Piney River ...... +584 Unincorporated Areas of Dickson County, City of Dickson. Approximately 3,400 feet upstream of the confluence of +696 Willow Branch. Fivemile Creek ...... Approximately 2,700 feet downstream of County Highway +548 Unincorporated Areas of 1847. Dickson County, Town of White Bluff. Approximately 3,370 feet upstream of County Highway +584 1847. Piney River ...... At the confluence with East Piney River ...... +584 Unincorporated Areas of Dickson County. Approximately 200 feet upstream of County Road 1858 ...... +629

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Dickson Maps are available for inspection at the Office of the Director of Planning and Zoning, 200 Center Avenue, Dickson, TN 37055. Town of White Bluff Maps are available for inspection at 1016 Taylor Town Road, White Bluff, TN 37187. Unincorporated Areas of Dickson County Maps are available for inspection at the Office of the Director of Planning and Zoning, 2 Court Square, Charlotte, TN 37036.

Humphreys County, Tennessee, and Incorporated Areas FEMA Docket No.: B–1003

Kentucky Lake (Tennessee At the Humphreys/Perry/Benton county boundary ...... +375 Humphreys County, City of River). New Johnsonville. At the Humphreys/Houston/Benton county boundary ...... +375

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of New Johnsonville Maps are available for inspection at City Hall, 323 Long Street, New Johnsonville, TN 37134. Humphreys County Maps are available for inspection at the Chamber of Commerce, 124 East Main Street, Waverly, TN 37185.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Claiborne County, Tennessee, and Incorporated Areas FEMA Docket No.: B–1012

Clinch River/Norris Lake ...... Approximately 2.3 miles downstream of the confluence of +1055 Unincorporated Areas of Clai- Big Barren Creek. borne County. Approximately 3.3 miles upstream of US Highway 25 ...... +1055

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Claiborne County Maps are available for inspection at County Courthouse, 1740 Main Street, Tazewell, TN 37879.

Tarrant County, Texas, and Incorporated Areas FEMA Docket No.: B–7737

Big Bear Creek ...... Approximately 1270 ft downstream of the intersection at +527 City of Fort Worth, City of Eu- Highway 183. less, City of Grand Prairie, City of Grapevine, City of Keller, City of South Lake, Town of Colleyville, Unin- corporated Areas of Tarrant County. Approximately 93 ft downstream of the intersection with +758 Bear Creek Pkwy.. Hogpen Branch ...... Approximately 83 feet upstream from intersection with +582 City of Mansfield. Country Club Road. Approximately 100 feet downstream from intersection with +621 Highway 157. Johnson Creek ...... Intersection with Avenue K ...... +467 City of Grand Prairie. Approximately 200 feet upstream of intersection with High- +511 way 360. Nichols Branch ...... Intersection with Newt Patterson Road ...... +599 City of Mansfield. Approximately 560 feet downstream of intersection with +620 Columbria Drive. Plantation East Creek ...... Upstream of Llano Avenue approximately 290 feet ...... +651 City of Benbrook. Approximately 288 feet upstream of Circle S Road ...... +685 Plantation West Creek, Intersection with Twilight Drive W...... +671 City of Benbrook, City of Fort Stream MSC–1A. Worth. Approximately 705 feet from intersection with Dawn Drive .. +692 Pond Branch...... Approximately 95 feet downstream of intersection with +587 City of Mansfield. Depot Street. Approximately 37 feet downstream of East Kimball Street .. +600 Stream JC–1 ...... Approximately 300 feet downstream of West Tarrant Road +502 City of Grand Prairie. intersection. Intersection with Duncan Perry Road ...... +503 Timber Creek ...... Approximately 700 feet upstream of confluence with Clear +618 City of Benbrook. Fork of the Trinity River. Approximately 700 feet downstream of the intersection with +692 McKinley Street. Walnut Creek 3 ...... Approximately 4,850 feet downstream from intersection +546 City of Mansfield. with Highway 360. Approximately 80 feet downstream from the intersection of +588 287. Watson Branch ...... Confluence with Walnut Creek 3 ...... +580 City of Mansfield. Intersection with Highway 157 ...... +641 Willow Bend ...... The intersection with Willow Bend Creek at Meadowside +640 City of Benbrook. Drive. Approximately 70 feet downstream of intersection with Wil- +707 liams Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Benbrook

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) Flooding source(s) Location of referenced elevation # Depth in feet Communities affected above ground Modified

Maps are available for inspection at 911 Winscott Road, Benbrook, TX 76126. City of Euless Maps are available for inspection at 201 North Ector Drive, Euless, TX 76039. City of Fort Worth Maps are available for inspection at 1000 Throckmorton Street, Fort Worth, TX 76102. City of Grand Prairie Maps are available for inspection at 317 College Street, Grand Prairie, TX 75053. City of Grapevine Maps are available for inspection at 413 South Main Street, Grapevine, TX 76051. City of Keller Maps are available for inspection at 158 South Main Street, Keller, TX 76248. City of Mansfield Maps are available for inspection at 1305 East Broad Street, Mansfield, TX 76063. City of South Lake Maps are available for inspection at 667 North Carroll Avenue, Southlake, TX 76092. Town of Colleyville Maps are available for inspection at 401 Oak Valley Road, Colleyville, TX 76034. Unincorporated Areas of Tarrant County Maps are available for inspection at 100 East Weatherford Street, Fort Worth, TX 76196.

Salt Lake County, Utah, and Incorporated Areas FEMA Docket No.: B–7759

Midas Creek ...... Approximately 400 feet upstream of the confluence with the +4325 City of Riverton, City of South Jordan River. Jordan, Unincorporated Areas of Salt Lake County. Just upstream of 11800 South Street ...... +4566 Willow Creek (West) ...... Just upstream of 11400 South Street ...... +4362 City of Draper. Just downstream of 300 East Street ...... +4442

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES City of Draper Maps are available for inspection at 1020 East Pioneer Road, Draper, UT 84020. City of Riverton Maps are available for inspection at 12830 South Redwood Road, Riverton, UT 84065. City of South Jordan Maps are available for inspection at 1600 West Towne Center Drive, South Jordan, UT 84095. Unincorporated Areas of Salt Lake County Maps are available for inspection at 2001 South State Street, Suite N2100, Salt Lake City, UT 84190.

Montgomery County, Virginia, and Incorporated Areas FEMA Docket No.: B–1012

Plum Creek ...... Approximately 900 ft upstream of US Highway 11 ...... +1755 Unincorporated Areas of Montgomery County. Approximately at the intersection of Gate Road and Plum +1918 Creek Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ADDRESSES Unincorporated Areas of Montgomery County Maps are available for inspection at the Department of Planning and GIS Services, 755 Roanoke Street, Christiansburg, VA 24073.

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(Catalog of Federal Domestic Assistance No. Dated: June 1, 2009. 97.022, ‘‘Flood Insurance.’’) Deborah S. Ingram, Acting Deputy Assistant Administrator, Mitigation Directorate, Department of Homeland Security, Federal Emergency Management Agency. [FR Doc. E9–14042 Filed 6–12–09; 8:45 am] BILLING CODE 9110–12–P

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Proposed Rules Federal Register Vol. 74, No. 113

Monday, June 15, 2009

This section of the FEDERAL REGISTER Avenue, SE., Washington, DC 20590– address, or a telephone number in the contains notices to the public of the proposed 0001. body of your document so that we can issuance of rules and regulations. The (4) Hand Delivery: Same as mail contact you if we have questions purpose of these notices is to give interested address above, between 9 a.m. and 5 regarding your submission. persons an opportunity to participate in the p.m., Monday through Friday, except To submit your comment online, go to rule making prior to the adoption of the final Federal holidays. The telephone number http://www.regulations.gov, select the rules. is 202–366–9329. Advanced Docket Search option on the To avoid duplication, please use only right side of the screen, insert ‘‘USCG– DEPARTMENT OF HOMELAND one of these four methods. See the 2008–0085’’ in the Docket ID box, press SECURITY ‘‘Public Participation and Request for Enter, and then click on the balloon Comments’’ portion of the shape in the Actions column. If you Coast Guard SUPPLEMENTARY INFORMATION section submit your comments by mail or hand below for instructions on submitting delivery, submit them in an unbound 33 CFR Part 165 comments. format, no larger than 81⁄2 by 11 inches, suitable for copying and electronic [Docket No. USCG–2008–0085] FOR FURTHER INFORMATION CONTACT: If you have questions on this proposed filing. If you submit comments by mail RIN 1625–AA11 rule, call or e-mail Lieutenant and would like to know that they Commander Kristen Schroeder, reached the Facility, please enclose a Regulated Navigation Area; East stamped, self-addressed postcard or Rockaway Inlet to Atlantic Beach Prevention Department, CG Sector Long Island Sound at 203–468–4459 or envelope. We will consider all Bridge, Nassau County, Long Island, comments and material received during [email protected]. If you NY the comment period and may change have questions on viewing or submitting the proposed rule based on your AGENCY: Coast Guard, DHS. material to the docket, call Renee V. comments. ACTION: Notice of proposed rulemaking. Wright, Program Manager, Docket Operations, telephone 202–366–9826. Viewing Comments and Documents SUMMARY: The Coast Guard proposes to SUPPLEMENTARY INFORMATION: To view comments, as well as establish a regulated navigation area documents mentioned in this preamble extending from the entrance of East Public Participation and Request for as being available in the docket, go to Rockaway Inlet to the Atlantic Beach Comments http://www.regulations.gov, select the Bridge, Nassau County, New York. This We encourage you to participate in Advanced Docket Search option on the regulated navigation area will affect this rulemaking by submitting right side of the screen, insert USCG– commercial vessels carrying petroleum comments and related materials. All 2008–0085 in the Docket ID box, press products in excess of 250 barrels by comments received will be posted, Enter, and then click on the item in the requiring them to plan all transits of the without change, to http:// Docket ID column. You may also visit regulated navigation area so that they www.regulations.gov and will include the Docket Management Facility in maintain a minimum of two feet under any personal information you have Room W12–140 on the ground floor of keel clearance at all times. Additionally, provided. the Department of Transportation West they may not transit the regulated Submitting Comments Building, 1200 New Jersey Avenue SE., navigation area if a small craft advisory, Washington, DC 20590, between 9 a.m. or more severe weather warning, has If you submit a comment, please and 5 p.m., Monday through Friday, been issued, unless authorized by the include the docket number for this except Federal holidays. We have an Captain of the Port Long Island Sound. rulemaking (USCG–2008–0085), agreement with the Department of This action is necessary because indicate the specific section of this Transportation to use the Docket significant shoaling in this area has document to which each comment Management Facility. reduced the depths of the navigable applies, and provide a reason for each channel and has increased the risk of suggestion or recommendation. You Privacy Act vessels grounding in the channel and may submit your comments and Anyone can search the electronic the potential for a significant oil spill. material online via http:// form of comments received into any of DATES: Comments and related material www.regulations.gov or by fax, mail or our dockets by the name of the must be received by the Coast Guard on hand delivery, but please use only one individual submitting the comment (or or before August 14, 2009. of these means. If you submit a signing the comment, if submitted on ADDRESSES: You may submit comments comment online via http:// behalf of an association, business, labor identified by docket number USCG– www.regulations.gov, it will be union, etc.). You may review a Privacy 2008–0085 using any one of the considered received by the Coast Guard Act notice regarding our public dockets following methods: when you successfully transmit the in the January 17, 2008, issue of the (1) Federal eRulemaking Portal: comment. If you fax, hand deliver, or Federal Register (73 FR 3316). http://www.regulations.gov. mail your comment, it will be (2) Fax: 202–493–2251. considered as having been received by Public Meeting (3) Mail: Docket Management Facility the Coast Guard when it is received at We do not now plan to hold a public (M–30), U.S. Department of the Docket Management Facility. We meeting. But you may submit a request Transportation, West Building Ground recommend that you include your name for one using one of the four methods Floor, Room W12–140, 1200 New Jersey and a mailing address, an e-mail specified under ADDRESSES. Please

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explain why you believe a public such vessels are prohibited from Small Entities meeting would be beneficial. If we transiting the RNA during periods when determine that one would aid this a small craft advisory, or more severe Under the Regulatory Flexibility Act rulemaking, we will hold one at a time weather warning, has been issued, (5 U.S.C. 601–612), we have considered and place announced by a later notice unless authorized by the Captain of the whether this proposed rule would have in the Federal Register. Port Long Island Sound. In addition, a significant economic impact on a operators of vessels carrying petroleum substantial number of small entities. Background and Purpose products in excess of 250 barrels as The term ‘‘small entities’’ comprises East Rockaway Inlet is on the South cargo that require a nighttime transit small businesses, not-for-profit Shore of Long Island, in Nassau County. through East Rockaway Inlet may do so organizations that are independently Water depths in the federal navigation only after receiving approval from the owned and operated and are not channel change constantly and have Captain of the Port Long Island Sound. dominant in their fields, and been reduced in some areas to as low as The operator’s voyage plan must contain governmental jurisdictions with five feet at times. This channel was last parameters for transit of the RNA that populations of less than 50,000. dredged by the Army Corps of Engineers are acceptable to the Captain of the Port This rule may affect the following during the winter of 2008–2009 and is Long Island Sound. Parameters entities, some of which may be small on a 2 year cycle for dredge work. The addressed shall include: Forecasted entities: The owners or operators of channel buoys require regular relocation weather conditions for the duration of vessels carrying petroleum products to mark best water as the channel shoals the transit, restrictions due to state of intending to transit or anchor in those in between dredge cycles. East tide, the loaded draft of the vessel, and portions of the East Rockaway Inlet Rockaway Inlet is frequented by small minimum under keel clearance. covered by the regulated navigation coastal tankers and tugs towing oil Any violation of the RNA described area; and Sprague Energy Oceanside, barges supplying two facilities: Sprague herein, is punishable by, among others, located in Oceanside, Long Island, New Energy Oceanside, located in Oceanside, civil and criminal penalties, in rem York, a supplier of home heating oil, Long Island, New York, a supplier of liability against the offending vessel, and Keyspan E.S. Barrett, an electrical home heating oil for Long Island, and and license sanctions. power generation facility, located in Keyspan E.F. Barrett, an electrical The Captain of the Port Long Island Island Park, Long Island, New York, power generation facility, located in Sound will notify the maritime which receive the vessels affected by Island Park, Long Island, New York. For community of the requirements of this this regulated navigation area. For the vessels carrying 250 or more barrels of RNA publication in the Federal reasons outlined in the Regulatory petroleum, approximately 60 transits of Register, broadcast notifications and Evaluation section above, this rule will the area occur each year. The shoaling notifications in the local notice to not have a significant impact on a in this area has reduced depths to a mariners. substantial number of small entities. point where there is an increased risk of Regulatory Analyses Therefore, the Coast Guard certifies vessels grounding and the potential for under 5 U.S.C. 605(b) that this rule will a significant oil spill. Similar shoaling We developed this proposed rule after not have a significant economic impact led to the grounding in late 2003 of a considering numerous statutes and on a substantial number of small small coastal tanker carrying home executive orders related to rulemaking. entities. heating oil. Below we summarize our analyses This proposed rule will provide for based on 13 of these statutes or If you think that your business, the safety of vessel traffic and protection executive orders. organization, or governmental of the maritime environment in and jurisdiction qualifies as a small entity around East Rockaway Inlet, Long Regulatory Planning and Review and that this rule would have a Island, New York. This proposed rule is not a significant significant economic impact on it, regulatory action under section 3(f) of please submit a comment (see Discussion of Proposed Rule Executive Order 12866, Regulatory ADDRESSES) explaining why you think it This proposed rule establishes a Planning and Review, and does not qualifies and how and to what degree regulated navigation area (RNA) on the require an assessment of potential costs this rule would economically affect it. navigable waters of the East Rockaway and benefits under section 6(a)(3) of that Assistance for Small Entities Inlet in an area bounded by lines drawn Order. The Office of Management and from position 40°34′56″ N, 073°45′19″ Budget has not reviewed it under that Under section 213(a) of the Small W, [approximate position of Silver Point Order. We expect the economic impact Business Regulatory Enforcement breakwater buoy (LLNR 31500)] running of this proposed rule to be so minimal Fairness Act of 1996 (Pub. L. 104–121), north to a point of land on the that a full Regulatory Evaluation is we want to assist small entities in northwest side of the inlet at position unnecessary. understanding this proposed rule so that 40°35′28″ N, 073°46′12″ W, thence The regulated navigation area limits they can better evaluate its effects on easterly along the shore to the east side only vessels carrying petroleum them and participate in the rulemaking. of the Atlantic Beach Bridge, State products as cargo and allows vessels If the rule would affect your small Route 878, over East Rockaway Inlet, with sufficient under keel clearance to business, organization, or governmental thence across said bridge to the south transit during good weather and jurisdiction and you have questions side of East Rockaway Inlet, thence daylight hours without having to gain concerning its provisions or options for westerly along the shore and across the prior approval from the Captain of the compliance, please contact Lieutenant water to the point of origin. The rule Port Long Island Sound. Otherwise, a Commander Kristen Schroeder, described herein restricts the transit of vessel may request and receive approval Prevention Department, CG Sector Long vessels carrying petroleum products in from the Captain of the Port Long Island Island Sound at (203) 468–4459. The excess of 250 barrels such that they Sound, to transit at other times. Coast Guard will not retaliate against must plan all transits of the RNA to Recreational and other maritime traffic small entities that question or complain maintain at least two feet under keel is not otherwise restricted or prohibited about this proposed rule or any policy clearance at all times. Additionally, from transiting this area. or action of the Coast Guard.

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Collection of Information between the Federal Government and changing regulated navigation areas and This proposed rule would call for no Indian tribes, or on the distribution of security or safety zones. A preliminary new collection of information under the power and responsibilities between the ‘‘Environmental Analysis Checklist’’ Paperwork Reduction Act of 1995 (44 Federal Government and Indian tribes. supporting this determination is available in the docket where indicated U.S.C. 3501–3520.). Energy Effects under the ‘‘Public Participation and Federalism We have analyzed this proposed rule Request for Comments’’ section of this A rule has implications for federalism under Executive Order 13211, Actions preamble. We seek any comments or under Executive Order 13132, Concerning Regulations That information that may lead to the Federalism, if it has a substantial direct Significantly Affect Energy Supply, discovery of a significant environmental effect on State or local governments and Distribution, or Use. We have impact from this proposed rule. determined that it is not a ‘‘significant would either preempt State law or List of Subjects in 33 CFR Part 165 impose a substantial direct cost of energy action’’ under that order because compliance on them. We have analyzed it is not a ‘‘significant regulatory action’’ Harbors, Marine safety, Navigation this proposed rule under that Order and under Executive Order 12866 and is not (water), Reporting and recordkeeping likely to have a significant adverse effect requirements, Security measures, have determined that it does not have on the supply, distribution, or use of Waterways. implications for federalism. energy. The Administrator of the Office For the reasons discussed in the Unfunded Mandates Reform Act of Information and Regulatory Affairs preamble, the Coast Guard proposes to The Unfunded Mandates Reform Act has not designated it as a significant amend 33 CFR part 165 as follows: of 1995 (2 U.S.C. 1531–1538) requires energy action. Therefore, it does not Federal agencies to assess the effects of require a Statement of Energy Effects PART 165—REGULATED NAVIGATION their discretionary regulatory actions. In under Executive Order 13211. AREAS AND LIMITED ACCESS AREAS particular, the Act addresses actions Technical Standards 1. The authority citation for part 165 that may result in the expenditure by a The National Technology Transfer continues to read as follows: State, local, or tribal government, in the and Advancement Act (NTTAA) (15 aggregate, or by the private sector of Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. U.S.C. 272 note) directs agencies to use Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; $100,000,000 or more in any one year. voluntary consensus standards in their 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Though this proposed rule would not regulatory activities unless the agency Pub. L. 107–295, 116 Stat. 2064; Department result in such an expenditure, we do provides Congress, through the Office of of Homeland Security Delegation No. 0170.1. discuss the effects of this rule elsewhere Management and Budget, with an 2. Add § 165.156 to read as follows: in this preamble. explanation of why using these § 165.156 Regulated Navigation Area, East Taking of Private Property standards would be inconsistent with Rockaway Inlet to Atlantic Beach Bridge, This proposed rule would not effect a applicable law or otherwise impractical. Nassau County, Long Island, New York. taking of private property or otherwise Voluntary consensus standards are (a) Location. The following area is a have taking implications under technical standards (e.g., specifications Regulated Navigation Area: All waters Executive Order 12630, Governmental of materials, performance, design, or of East Rockaway Inlet in an area Actions and Interference with operation; test methods; sampling bounded by lines drawn from position Constitutionally Protected Property procedures; and related management 40°34′56″ N, 073°45′19″ W, Rights. systems practices) that are developed or [approximate position of Silver Point adopted by voluntary consensus Civil Justice Reform breakwater buoy (LLNR 31500)] running standards bodies. north to a point of land on the This proposed rule meets applicable This proposed rule does not use northwest side of the inlet at position standards in sections 3(a) and 3(b)(2) of technical standards. Therefore, we did 40°35′28″ N, 073°46′12″ W, thence Executive Order 12988, Civil Justice not consider the use of voluntary easterly along the shore to the east side Reform, to minimize litigation, consensus standards. of the Atlantic Beach Bridge, State eliminate ambiguity, and reduce Environment Route 878, over East Rockaway Inlet, burden. thence across the bridge to the south We have analyzed this proposed rule side of East Rockaway Inlet, thence Protection of Children under Department of Homeland westerly along the shore and across the Security Management Directive 023–01 We have analyzed this proposed rule water to the beginning. under Executive Order 13045, and Commandant Instruction (b) Regulations. (1) The general Protection of Children from M16475.lD, which guide the Coast regulations contained in 33 CFR Environmental Health Risks and Safety Guard in complying with the National § 165.10, § 165.11, and § 165.13 apply. Risks. This rule is not an economically Environmental Policy Act of 1969 (2) In accordance with the general significant rule and would not create an (NEPA) (42 U.S.C. 4321–4370f), and regulations, the following regulations environmental risk to health or risk to have made a preliminary determination apply to vessels carrying petroleum safety that might disproportionately that this action is one of a category of products in excess of 250 barrels: affect children. actions which do not individually or (i) The vessel must have plans in cumulatively have a significant effect on place to maintain a minimum of two Indian Tribal Governments the human environment. Therefore, this feet under keel clearance at all times. This proposed rule does not have rule is categorically excluded, under (ii) A vessel requiring a nighttime tribal implications under Executive section 2.B.2. Figure 2–1, paragraph transit through East Rockaway Inlet may Order 13175, Consultation and 34(g), of the instruction and neither an only do so only after receiving approval Coordination with Indian Tribal environmental assessment nor an from the Captain of the Port Long Island Governments, because it would not have environmental impact statement is Sound. a substantial direct effect on one or required. This rule involves the (iii) Vessels are prohibited from more Indian tribes, on the relationship establishing, disestablishing, or transiting East Rockaway Inlet if a small

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craft advisory or greater has been issued required either to adopt or show meet the floodplain management for the area unless specific approval is evidence of having in effect in order to requirements of the NFIP and are also received from the Captain of the Port qualify or remain qualified for used to calculate the appropriate flood Long Island Sound. participation in the National Flood insurance premium rates for new (iv) In an emergency, any vessel may Insurance Program (NFIP). In addition, buildings built after these elevations are deviate from the regulations in this these elevations, once finalized, will be made final, and for the contents in these section to the extent necessary to avoid used by insurance agents and others to buildings. endangering the safety of persons, calculate appropriate flood insurance Comments on any aspect of the Flood property, or the environment. If premium rates for new buildings and Insurance Study and FIRM, other than deviation from the regulations is the contents in those buildings. the proposed BFEs, will be considered. necessary, the master or their designee DATES: Comments are to be submitted A letter acknowledging receipt of any shall inform the Coast Guard as soon as on or before September 14, 2009. comments will not be sent. it is practicable to do so. ADDRESSES: The corresponding National Environmental Policy Act. (c) Waivers. (1) The Captain of the preliminary Flood Insurance Rate Map This proposed rule is categorically Port Long Island Sound may, upon (FIRM) for the proposed BFEs for each excluded from the requirements of 44 request, waive any regulation in this community are available for inspection CFR part 10, Environmental section. (2) A request for a waiver must at the community’s map repository. The Consideration. An environmental include the need for the waiver and respective addresses are listed in the impact assessment has not been describe the proposed vessel operations table below. prepared. through the Regulated Navigation Area. You may submit comments, identified Regulatory Flexibility Act. As flood Dated: May 27, 2009. by Docket No. FEMA–B–1057, to elevation determinations are not within Dale G. Gabel, William R. Blanton Jr., Chief, the scope of the Regulatory Flexibility Engineering Management Branch, Act, 5 U.S.C. 601–612, a regulatory Rear Admiral, U.S. Coast Guard, Commander, Mitigation Directorate, Federal First Coast Guard District. flexibility analysis is not required. Emergency Management Agency, 500 C Executive Order 12866, Regulatory [FR Doc. E9–13889 Filed 6–12–09; 8:45 am] Street, SW., Washington, DC 20472, Planning and Review. This proposed BILLING CODE 4910–15–P (202) 646–3151, or (e-mail) rule is not a significant regulatory action [email protected]. under the criteria of section 3(f) of FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF HOMELAND Executive Order 12866, as amended. William R. Blanton Jr., Chief, SECURITY Executive Order 13132, Federalism. Engineering Management Branch, This proposed rule involves no policies Federal Emergency Management Mitigation Directorate, Federal that have federalism implications under Agency Emergency Management Agency, 500 C Executive Order 13132. Street, SW., Washington, DC 20472, Executive Order 12988, Civil Justice 44 CFR Part 67 (202) 646–3151, or (e-mail) Reform. This proposed rule meets the [email protected]. [Docket ID FEMA–2008–0020; Internal applicable standards of Executive Order SUPPLEMENTARY INFORMATION: Agency Docket No. FEMA–B–1057] The 12988. Federal Emergency Management Agency List of Subjects in 44 CFR Part 67 Proposed Flood Elevation (FEMA) proposes to make Determinations determinations of BFEs and modified Administrative practice and BFEs for each community listed below, procedure, Flood insurance, Reporting AGENCY: Federal Emergency in accordance with section 110 of the and recordkeeping requirements. Management Agency, DHS. Flood Disaster Protection Act of 1973, Accordingly, 44 CFR part 67 is 42 U.S.C. 4104, and 44 CFR 67.4(a). ACTION: Proposed rule. proposed to be amended as follows: These proposed BFEs and modified SUMMARY: Comments are requested on BFEs, together with the floodplain PART 67—[AMENDED] the proposed Base (1% annual-chance) management criteria required by 44 CFR Flood Elevations (BFEs) and proposed 60.3, are the minimum that are required. 1. The authority citation for part 67 BFE modifications for the communities They should not be construed to mean continues to read as follows: listed in the table below. The purpose that the community must change any Authority: 42 U.S.C. 4001 et seq.; of this notice is to seek general existing ordinances that are more Reorganization Plan No. 3 of 1978, 3 CFR, information and comment regarding the stringent in their floodplain 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, proposed regulatory flood elevations for management requirements. The 3 CFR, 1979 Comp., p. 376. the reach described by the downstream community may at any time enact and upstream locations in the table stricter requirements of its own, or § 67.4 [Amended] below. The BFEs and modified BFEs are pursuant to policies established by other 2. The tables published under the a part of the floodplain management Federal, State, or regional entities. authority of § 67.4 are proposed to be measures that the community is These proposed elevations are used to amended as follows:

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Madison County, Alabama, and Incorporated Areas

Aldridge Creek ...... Approximately 0.4 miles upstream of Green Cove +577 +576 City of Huntsville, Unincor- Road. porated Areas of Madi- son County. Approximately 75 feet downstream of Drake Avenue +679 +682

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Huntsville Maps are available for inspection at 308 Fountain Circle Southwest, Huntsville, AL 35804. Unincorporated Areas of Madison County Maps are available for inspection at 100 North Side Circle, Huntsville, AL 35801.

Franklin County, Kansas, and Incorporated Areas

Nugent Creek ...... Just upstream of Marshall Road ...... None +904 City of Ottawa, Unincor- porated Areas of Frank- lin County. Just downstream of Interstate Highway 35 ...... None +940 Pottawatomie Creek ...... At confluence of Unnamed Tributary between Walnut None +874 City of Lane. Street and Cherry Street in eastern portion of the city. Just upstream of the intersection of Lane Road and None +875 South Kansas Avenue. Rock Creek ...... Just upstream of East 15th Street ...... None +902 City of Ottawa, Unincor- porated Areas of Frank- lin County. Just downstream of Interstate Highway 35 ...... None +913 Walnut Creek ...... Just upstream of Interstate Highway 35 ...... None +1012 City of Wellsville, Unincor- porated Areas of Frank- lin County. Just upstream of Utah Road ...... None +1040 Walnut Creek Tributary ...... At confluence with Walnut Creek ...... None +1030 Unincorporated Areas of Franklin County. Approximately 800 feet downstream from Hedge None +1038 Road.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Lane Maps are available for inspection at 520 3rd Street, P.O. Box 116, Lane, KS 66042. City of Ottawa Maps are available for inspection at 101 S Hickory, 2nd Floor, Ottawa, KS 66067. City of Wellsville Maps are available for inspection at 411 Main Street, Wellsville, KS 66092. Unincorporated Areas of Franklin County Maps are available for inspection at 315 South Main Street, Suite 202, Ottawa, KS 66067.

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* Elevation in feet (NGVD) + Elevation in feet (NAVD) # Depth in feet above ground Flooding source(s) Location of referenced elevation** ∧ Elevation in meters Communities affected (MSL) Effective Modified

Lincoln County, Missouri, and Incorporated Areas

Cuivre River ...... At confluence with Mississippi River at East Syca- +445 +444 Unincorporated Areas of more Road, east of City of Old Monroe. Lincoln County, City of Old Monroe. McLean Creek ...... At confluence with Mississippi River, just east of City +446 +445 Unincorporated Areas of of Winfield. Lincoln County, City of Winfield. Mississippi River ...... At southern county boundary, east of City of Old +445 +444 Unincorporated Areas of Monroe. Lincoln County, City of Elsberry, City of Foley, City of Old Monroe, City of Winfield. At northern county boundary at Dameron Road ...... +451 +450 Sandy Creek ...... At confluence with Mississippi River, east of City of +447 +446 Unincorporated Areas of Foley. Lincoln County, City of Foley.

* National Geodetic Vertical Datum. + North American Vertical Datum. # Depth in feet above ground. ∧ Mean Sea Level, rounded to the nearest 0.1 meter. ** BFEs to be changed include the listed downstream and upstream BFEs, and include BFEs located on the stream reach between the ref- erenced locations above. Please refer to the revised Flood Insurance Rate Map located at the community map repository (see below) for exact locations of all BFEs to be changed. Send comments to William R. Blanton, Jr., Chief, Engineering Management Branch, Mitigation Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472. ADDRESSES City of Elsberry Maps are available for inspection at 201 Broadway Street, Elsberry, MO 63343. City of Foley Maps are available for inspection at 617 Elm Street, Foley, MO 63347. City of Old Monroe Maps are available for inspection at 151 Main Street, P.O. Box 212, Old Monroe, MO 63369. City of Winfield Maps are available for inspection at 51 Old Troy Highway, P.O. Box 59, Winfield, MO 63389. Unincorporated Areas of Lincoln County Maps are available for inspection at 201 Main Street, Troy, MO 63379.

(Catalog of Federal Domestic Assistance No. DEPARTMENT OF TRANSPORTATION requirements. This action would be 97.022, ‘‘Flood Insurance.’’) taken pursuant to the Federal Civil Dated: May 27, 2009. National Highway Traffic Safety Monetary Penalty Inflation Adjustment Administration Act of 1990, as amended by the Debt Deborah S. Ingram, Collection Improvement Act of 1996, Acting Deputy Assistant Administrator for 49 CFR Part 578 which requires us to review and, as Mitigation, Mitigation Directorate, warranted, adjust penalties based on Department of Homeland Security, Federal [Docket No. NHTSA–2009–0066; Notice 1] inflation at least every four years. Emergency Management Agency. RIN 2127–AK40 [FR Doc. E9–14039 Filed 6–12–09; 8:45 am] DATES: Comments on the proposal are due July 15, 2009. BILLING CODE 9110–12–P Civil Penalties ADDRESSES: You may submit comments AGENCY: National Highway Traffic electronically [identified by DOT Docket Safety Administration (NHTSA), DOT. ID Number NHTSA–2009–0066] by ACTION: Notice of proposed rulemaking. visiting the following Web site: SUMMARY: This document proposes to • Federal eRulemaking Portal: Go to increase the maximum civil penalty http://www.regulations.gov. Follow the amounts for violations of motor vehicle online instructions for submitting safety requirements involving school comments. buses, bumper standards, consumer Alternatively, you can file comments information requirements, odometer using the following methods: tampering and disclosure requirements, • Mail: Docket Management Facility: and vehicle theft protection U.S. Department of Transportation, 1200

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New Jersey Avenue, SE., West Building 5167. At that time, we codified the adjust are available for violations of the Ground Floor, Room W12–140, penalties under statutes administered by (1) Motor Vehicle Safety Act involving Washington, DC 20590–0001. NHTSA, as adjusted, in 49 CFR Part school buses (single violations and a • Hand Delivery or Courier: West 578, Civil Penalties. On July 14, 1999, related series of violations), (2) bumper Building Ground Floor, Room W12–140, we further adjusted certain penalties. 64 requirements (a related series of 1200 New Jersey Avenue, SE., between FR 37876. In 2000, the Transportation violations), (3) consumer information 9 a.m. and 5 p.m. ET, Monday through Recall Enhancement, Accountability requirements regarding crashworthiness Friday, except Federal holidays. and Documentation (‘‘TREAD’’) Act and damage susceptibility (a related • Fax: (202) 493–2251. increased the maximum penalties under series of violations), (4) odometer Instructions: For detailed instructions the National Traffic and Motor Vehicle requirements including tampering and on submitting comments and additional Safety Act as amended (sometimes disclosure (a related series of information on the rulemaking process, referred to as the ‘‘Motor Vehicle Safety violations), and (5) the vehicle theft see the Public Participation heading of Act’’). We codified those amendments protection requirements (daily the SUPPLEMENTARY INFORMATION section in Part 578 on November 14, 2000. 65 violations and a series of related of this document. Note that all FR 68108. On August 7, 2001, we also violations). comments received will be posted adjusted certain penalty amounts Method of Calculation—Proposed without change to http:// pertaining to odometer tampering and Adjustments www.dms.dot.gov or http:// disclosure requirements and vehicle www.regulations.gov, including any theft prevention. 66 FR 41149. On Under the Adjustment Act, we first personal information provided. Please September 28, 2004, we adjusted the calculate the inflation adjustment for see the Privacy Act heading below. maximum penalty amounts for a related each applicable civil penalty by Privacy Act: Anyone is able to search series of violations involving the arithmetically increasing the maximum the electronic form of all comments agency’s provisions governing vehicle civil penalty amount per violation by a received into any of our dockets by the safety, bumper standards, and consumer cost-of-living adjustment. Section 5(b) of name of the individual submitting the information. 69 FR 57864. On the Adjustment Act defines the ‘‘cost-of- comment (or signing the comment, if September 8, 2005, the agency adjusted living’’ adjustment as: submitted on behalf of an association, its penalty amounts for violations of its The percentage (if any) for each civil business, labor union, etc.). You may vehicle theft protection standards and monetary penalty by which— review DOT’s complete Privacy Act those involving a related series of (1) The Consumer Price Index for the Statement in the Federal Register odometer-related violations. 70 FR month of June of the calendar year published on April 11, 2000 (65 FR 53308. On May 16, 2006, the agency preceding the adjustment exceeds 19477–78). adjusted its penalty amounts for (2) The Consumer Price Index for the Docket: For access to the docket to violations of the Motor Vehicle Safety month of June of the calendar year in read background documents or Act, as amended, and codified which the amount of such civil comments received, go to http:// amendments made to the Motor Vehicle monetary penalty was last set or www.regulations.gov. Follow the online Safety Act by the Safe, Accountable, adjusted pursuant to law. instructions for accessing the dockets. Flexible, Efficient Transportation Equity Because the proposed adjustment is FOR FURTHER INFORMATION CONTACT: Act—A Legacy for Users (SAFETEA– intended to be effective before Jessica Lang, Office of Chief Counsel, LU), 119 Stat. 1144, 1942–43 (Aug. 10, December 31, 2009, the ‘‘Consumer NHTSA, telephone (202) 366–5902, 2005). 71 FR 28279. Most recently, on Price Index [CPI] for the month of June February 25, 2008, the agency made facsimile (202) 366–3820, 1200 New of the calendar year preceding the adjustments to odometer-related Jersey Avenue, SE., Washington, DC adjustment’’ is the CPI for June 2008. violations and violations of certain 20590. This figure, based on the Adjustment administrative provisions of the Energy Act’s requirement of using the CPI ‘‘for SUPPLEMENTARY INFORMATION: Policy and Conservation Act. 73 FR all-urban consumers published by the Background 9955. Department of Labor,’’ is 655.5.1 The Energy Independence and Two of the penalty amounts that In order to preserve the remedial Security Act of 2007 (EISA), Public Law NHTSA proposes to adjust involve a impact of civil penalties and to foster 10–140, 121 Stat. 1492, 1506–07 (Dec. related series of violations of bumper compliance with the law, the Federal 19, 2007) (codified at 49 U.S.C. 32304A) standards and of consumer information Civil Monetary Penalty Inflation established a separate penalty provision requirements regarding crashworthiness Adjustment Act of 1990 (28 U.S.C. 2461, for a new consumer tire information and damage susceptibility. These Notes, Pub. L. 101–410), as amended by provision. As a matter of organization, amounts were both last adjusted in 2004 the Debt Collection Improvement Act of we intend to include this penalty (CPI = 568.2). Accordingly, the factor 1996 (Pub. L. 104–134) (referred to provision in 49 CFR 578.6(d). In order that we use to calculate the proposed collectively as the ‘‘Adjustment Act’’ or, to avoid confusion with the consumer increases is 1.15 (655.5/568.2) for these in context, the ‘‘Act’’), requires us and information penalty regarding penalties. other Federal agencies to adjust civil crashworthiness and damage The other penalty amounts that penalties for inflation. Under the susceptibility currently in this section, NHTSA proposes to adjust are for single Adjustment Act, following an initial we would bifurcate to 49 CFR 578.6(d) violations and a related series of adjustment that was capped by the Act, into two parts. The first would address violations pertaining to school bus these agencies must make further crashworthiness and damage adjustments, as warranted, to the susceptibility; the second would codify 1 Individuals interested in deriving the CPI amounts of penalties in statutes they consumer tire information under EISA. figures used by the agency may visit the Department administer at least once every four We have reviewed the civil penalty of Labor’s Consumer Price Index Home Page at years. amounts in 49 CFR Part 578 and, in this http://www.bls.gov/cpi/home.htm. Scroll down to ‘‘Most Requested Statistics’’ and select the ‘‘All NHTSA’s initial adjustment of civil notice, propose to adjust certain Urban Consumers (Current Series)’’ option, select penalties under the Adjustment Act was penalties under the Adjustment Act. the ‘‘U.S. ALL ITEMS 1967=100—CUUR0000AA0’’ published on February 4, 1997. 62 FR The civil penalties that we propose to box, and click on the ‘‘Retrieve Data’’ button.

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safety, a related series of violations the $15,000,000 to $16,950,000, an Change to Maximum Penalty (Related involving odometer tampering and increase of $1,950,000. Under the Series of Violations) Under the disclosure, as well as single violations rounding formula, any increase in a Odometer Tampering and Disclosure and a related series of violations penalty’s amount shall be rounded to Requirements, 49 U.S.C. Chapter 327 involving vehicle theft protection. These the nearest multiple of $25,000 in the (49 CFR 578.6(f)) amounts were last adjusted in 2005 (CPI case of penalties greater than $200,000. = 582.6). Accordingly, the factor that we Accordingly, we propose that The maximum civil penalty for a use to calculate the proposed increases § 578.6(a)(2)(ii) be amended to increase related series of violations of the is 1.13 (655.5/582.6). the maximum civil penalty from odometer requirements is $130,000, as Next, using these inflation factors, $15,000,000 to $16,950,000 for a series specified in 49 CFR 578.6(f)(1). The increases above the current maximum of related violations. underlying statutory penalty provision penalty levels are calculated and are is 49 U.S.C. 32709. Applying the then subject to a specific rounding Change to Maximum Penalty (Related appropriate inflation factor (1.13) raises formula set forth in section 5(a) of the Series of Violations) Under the Bumper the $130,000 to $146,900, an increase of Adjustment Act. 28 U.S.C. 2461, Notes. Standards Provision, 49 U.S.C. Chapter $16,900. Under the rounding formula, Under that formula: 325 (49 CFR 578.6(c)) any increase in a penalty’s amount shall Any increase shall be rounded to the be rounded to the nearest multiple of nearest: The maximum civil penalty for a $10,000 in the case of penalties greater (1) Multiple of $10 in the case of related series of violations of the than $100,000 but less than or equal to penalties less than or equal to $100; bumper standards provision or a $200,000. Accordingly, we propose that (2) Multiple of $100 in the case of regulation prescribed thereunder is § 578.6(f)(1) be amended to increase the penalties greater than $100 but less than $1,025,000 as specified in 49 CFR maximum civil penalty from $130,000 or equal to $1,000; 578.6(c)(2). The underlying statutory to $150,000 for a series of related (3) Multiple of $1,000 in the case of civil penalty provision is contained in violations. penalties greater than $1,000 but less 49 U.S.C. 32506. Applying the than or equal to $10,000; appropriate inflation factor (1.15) raises Change to Maximum Penalty (Daily (4) Multiple of $5,000 in the case of the $1,025,000 figure to $1,178,750, an Violation and a Related Series of penalties greater than $10,000 but less increase of $153,750. Under the Violations) Under the Vehicle Theft than or equal to $100,000; rounding formula, any increase in a Protection Provisions, 49 U.S.C. Chapter (5) Multiple of $10,000 in the case of penalty’s amount shall be rounded to 331 (49 CFR 578.6(g)(1), (2)) penalties greater than $100,000 but less the nearest multiple of $25,000 in the than or equal to $200,000; and The maximum civil penalty for a case of penalties greater than $200,000. (6) Multiple of $25,000 in the case of daily violation of vehicle theft In this case, the increase would be penalties greater than $200,000. protection provisions is $130,000, as $150,000. Accordingly, we propose that specified in 49 CFR 578.6(g)(2). The Proposed Amendments to Maximum § 578.6(c) be amended to increase the underlying statutory penalty provision Penalties maximum civil penalty from $1,025,000 is 49 U.S.C. 33114(a)(5). Applying the to $1,175,000 for a related series of Change to Maximum Penalty (Single appropriate inflation factor (1.13) raises violations. Violations and a Related Series of the $130,000 figure to $146,900, an Violations) Under the School Bus Safety Change to Maximum Penalty (Related increase of $16,900. Under the rounding Provisions, 49 U.S.C. Chapter 301, (49 Series of Violations) Under the formula, any increase in a penalty’s CFR 578.6(a)(2)) Consumer Information Regarding amount shall be rounded to the nearest The maximum civil penalty for a Crashworthiness and Damage multiple of $10,000 in the case of single violation under the school bus Susceptibility Requirements, 49 U.S.C. penalties greater than $100,000 but less safety provisions is $10,000, as specified Chapter 323 (49 CFR 578.6(d)) than or equal to $200,000. Accordingly, in 49 CFR 578.6(a)(2)(ii). The we propose that § 578.6(g)(2) be underlying statutory provision is 49 The maximum civil penalty for a amended to increase the maximum civil U.S.C. 30165(a)(2), as amended in 2005. related series of violations of the penalty from $130,000 to $150,00 for a Applying the appropriate inflation consumer information regarding daily violation. factor (1.13) raises the $10,000 to crashworthiness and damage The maximum civil penalty for a $11,300, an increase of $1,300. Under susceptibility requirements is $500,000, related series of violations of the vehicle the rounding formula, any increase in a as specified in 49 CFR 578.6(d). The theft protection provisions is $325,000, penalty’s amount shall be rounded to underlying statutory civil penalty as specified in 49 CFR 578.6(g)(1). The the nearest $1,000 in the case of provision is 49 U.S.C. 32308(b). penalties greater than $1,000 but less underlying statutory penalty provisions Applying the appropriate inflation are 49 U.S.C. 33114(a)(1)–(4). Applying than or equal to $10,000. Accordingly, factor (1.15) raises the $500,000 figure to we propose that § 578.6(a)(2)(ii) be the appropriate inflation factor (1.13) $575,000, an increase of $75,000. Under raises the $325,000 to $367,250, an amended to increase the maximum civil the rounding formula, any increase in a penalty for a single violation from increase of $42,250. Under the rounding penalty’s amount shall be rounded to formula, any increase in a penalty’s $10,000 to $11,000. the nearest multiple of $25,000 in the The maximum civil penalty for a amount shall be rounded to the nearest case of penalties greater than $200,000. related series of violations under the multiple of $25,000 in the case of In this case, the increase would be school bus safety provisions is penalties greater than $200,000. $15,000,000, as specified in 49 CFR $75,000. Accordingly, we propose that Accordingly, we propose that 578.6(a)(2)(ii). The underlying statutory § 578.6(d) be amended to increase the § 578.5(g)(1) be amended to increase the provision is 49 U.S.C. 30165(a)(2), as maximum civil penalty from $500,000 maximum penalty from $325,000 to amended in 2005. Applying the to $575,000 for a series of related $375,000 for a series of related appropriate inflation factor (1.13) raises violations. violations.

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Effective Date of Final Rule request confidential treatment for any agency enforces, and has been The amendments would be effective portion of their submissions are advised determined to be not ‘‘significant’’ 30 days after publication of the final to review 49 CFR part 512, particularly under the Department of rule in the Federal Register. The those sections relating to document Transportation’s regulatory policies and adjusted penalties would apply to submission requirements. Failure to procedures. violations occurring on and after the adhere to the requirements of Part 512 Regulatory Flexibility Act effective date. may result in the release of confidential information to the public docket. In We have also considered the impacts Request for Comments addition, you should submit two copies of this notice under the Regulatory from which you have deleted the Flexibility Act. I certify that a final rule How Do I Prepare and Submit based on this proposal will not have a Comments? claimed confidential business information, to Docket Management at significant economic impact on a Your comments must be written and the address given at the beginning of substantial number of small entities. in English. To ensure that your this document under ADDRESSES. The following provides the factual basis comments are correctly filed in the for this certification under 5 U.S.C. Docket, please include the docket Will the Agency Consider Late 605(b). number of this document in your Comments? The Small Business Administration comments. We will consider all comments that (SBA) regulations define a small Your comments must not be more Docket Management receives before the business in part as a business entity than 15 pages long (49 CFR 553.21). We close of business on the comment ‘‘which operates primarily within the established this limit to encourage you closing date indicated at the beginning United States.’’ 13 CFR 121.105(a). to write your primary comments in a of this notice under DATES. In SBA’s size standards were previously concise fashion. However, you may accordance with our policies, to the organized according to Standard attach necessary additional documents extent possible, we will also consider Industrial Classification (SIC) Codes. to your comments. There is no limit on comments that Docket Management SIC Code 336211 ‘‘Motor Vehicle Body the length of the attachments. receives after the specified comment Manufacturing’’ applied a small Please submit two copies of your closing date. If Docket Management business size standard of 1,000 comments, including the attachments, receives a comment too late for us to employees or fewer. SBA now uses size to Docket Management at the beginning consider in developing the proposed standards based on the North American of this document under ADDRESSES. You rule, we will consider that comment as Industry Classification System (NAICS), may also submit your comments an informal suggestion for future Subsector 336—Transportation Equipment Manufacturing, which electronically to the docket following rulemaking action. the steps outlined under ADDRESSES. provides a small business size standard How Can I Read the Comments of 1,000 employees or fewer for How Can I Be Sure That My Comments Submitted by Other People? automobile manufacturing businesses. Were Received? You may read the comments received Other motor vehicle-related industries If you wish Docket Management to by Docket Management at the address have lower size requirements that range notify you upon its receipt of your and times given near the beginning of between 500 and 750 employees. comments, enclose a self-addressed, Many small businesses are subject to this document under ADDRESSES. stamped postcard in the envelope You may also see the comments on the penalty provisions of Title 49 U.S.C. containing your comments. Upon the Internet. To read the comments on Chapters 301 (motor vehicles—school receiving your comments, Docket the Internet, go to http:// bus safety), 325 (bumper standards), 323 Management will return the postcard by www.regulations.gov and follow the on- (consumer information requirements), mail. line instructions provided. 327 (odometer requirements) and 331 (vehicle theft protection requirements); How Do I Submit Confidential Business You may download the comments. therefore, small businesses may be Information? The comments are imaged documents, affected by the proposed adjustments in If you wish to submit any information in either TIFF or PDF format. Please note that even after the comment closing this NPRM. By the proposed under a claim of confidentiality, you amendments, entities that are should submit the following to the Chief date, we will continue to file relevant information in the Docket as it becomes potentially affected vary by statute and Counsel (NCC–110) at the address given may include manufacturers of motor at the beginning of this document under available. Further, some people may submit late comments. Accordingly, we vehicles and motor vehicle equipment, the heading FOR FURTHER INFORMATION sellers of vehicles and equipment, repair CONTACT: (1) A complete copy of the recommend that you periodically search the Docket for new material. shops and others. submission; (2) a redacted copy of the The proposed adjustment to penalty submission with the confidential Rulemaking Analyses and Notices amounts in 49 U.S.C. 30165(a)(2) and information removed; and (3) either a relating to school bus safety potentially Executive Order 12866 and DOT second complete copy or those portions impacts numerous entities including Regulatory Policies and Procedures of the submission containing the school bus manufacturers, school bus material for which confidential We have considered the impact of this equipment manufacturers, school bus treatment is claimed and any additional rulemaking action under Executive and equipment sellers, and schools and information that you deem important to Order 12866 and the Department of school systems. We do not have data on the Chief Counsel’s consideration of Transportation’s regulatory policies and how many other entities within the your confidentiality claim. A request for procedures. This rulemaking document ambit of 49 U.S.C. 30165(a)(2) are small confidential treatment that complies was not reviewed under Executive businesses, but the number is with 49 CFR part 512 must accompany Order 12866, ‘‘Regulatory Planning and considerable. the complete submission provided to Review.’’ This action is limited to the The proposed adjustment to penalty the Chief Counsel. For further proposed adoption of adjustments of amounts in Chapter 325 relating to information, submitters who plan to civil penalties under statutes that the bumper standards and to penalty

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amounts in Chapter 323 involving This proposed rule does not set the various levels of government.’’ Under crashworthiness, damage susceptibility amount of penalties for any particular Executive Order 13132, the agency may and country of origin labeling violation or series of violations. Under not issue a regulation with Federalism potentially impacts manufacturers of the statutes for motor vehicle safety/ implications, that imposes substantial passenger motor vehicles and, in some school buses, consumer information, direct compliance costs, and that is not instances, equipment manufacturers as and vehicle theft prevention, the required by statute, unless the Federal variously included and defined in the penalty provisions require the agency to government provides the funds statutes and regulations. We estimate take into account the size of a business necessary to pay the direct compliance that of the 26 light vehicle when determining the appropriate costs incurred by State and local manufacturers reporting under the early penalty in an individual case. See 49 governments, the agency consults with warning program (EWR), 49 CFR part U.S.C. 30165(c) (school bus safety); 49 State and local governments, or the 579, six are small businesses. We U.S.C. 32308(b)(3) (consumer agency consults with State and local recognize that there are other, relatively information); 49 U.S.C. 33115(a)(3) officials early in the process of low production light vehicle (vehicle theft prevention). The statute developing the proposed regulation. manufacturers that are not subject to for odometers does not directly address This proposed rule will not have comprehensive EWR reporting. In small business size as a consideration, substantial direct effects on the States, addition, these statutes cover other but does require consideration of ‘‘any on the relationship between the national entities, but we do not have information effect on the ability to continue doing government and the States, or on the on the number of small businesses. business’’. 49 U.S.C. 32709(a)(3)(B). The distribution of power and The proposed adjustment to penalty agency would consider the size of the responsibilities among the various amounts in Chapter 327 relating to business in such a calculation. While levels of government, as specified in odometer requirements potentially the bumper standards penalty provision Executive Order 13132. Thus, the impacts a number of small businesses does not specifically require the agency requirements of Section 6 of the including repair businesses, used car to consider the size of the business, the Executive Order do not apply. dealers, businesses that are lessors of agency would consider business size Unfunded Mandates Reform Act of 1995 vehicles, auction houses, and entities under its civil penalty policy when making devices that could change an determining the appropriate civil The Unfunded Mandates Reform Act odometer’s mileage. Although we do not penalty amount. See 62 FR 37115 (July of 1995, Public Law 104–4, requires have information on how many of these 10, 1997) (NHTSA’s civil penalty policy agencies to prepare a written assessment entities are small businesses, we believe under the Small Business Regulatory of the cost, benefits and other effects of a large percentage are small businesses. Enforcement Fairness Act (SBREFA)). proposed or final rules that include a The proposed adjustment to penalty The penalty adjustments that are Federal mandate likely to result in the amounts in Chapter 331 relating to theft being proposed would not affect our expenditure by State, local, or tribal prevention potentially impacts civil penalty policy under SBREFA. As governments, in the aggregate, or by the manufacturers of regulated passenger a matter of policy, we intend to private sector, of more than $100 motor vehicle parts in passenger motor continue to consider the million annually. Because this proposed vehicles, some multi-purpose vehicles, appropriateness of the penalty amount rule will not have a $100 million effect, and some light trucks in high theft lines. to the size of the business charged. no Unfunded Mandates assessment will It also impacts other entities including Since this proposed regulation would be prepared. salvaging, repair and chop shops. As not establish penalty amounts, this Executive Order 12778 (Civil Justice previously stated, of the twenty six proposal will not have a significant Reform) manufacturers of passenger vehicles, six economic impact on small businesses. are small businesses. Although we do Small organizations and governmental This proposed rule does not have a not have data on the numbers of jurisdictions would not be significantly retroactive or preemptive effect. Judicial salvaging, repair or chop shops, we affected as the price of motor vehicles review of a rule based on this proposal believe many are small businesses. and equipment ought not to change as may be obtained pursuant to 5 U.S.C. Finally, we note that the new tire fuel the result of this proposed rule. As 702. That section does not require that efficiency information program under explained above, this action is limited a petition for reconsideration be filed 49 U.S.C. 32304A may affect a number to the proposed adoption of a statutory prior to seeking judicial review. of entities. That program has not yet directive, and has been determined to be Paperwork Reduction Act been adopted and therefore this notice not ‘‘significant’’ under the Department does not identify regulated entities. In of Transportation’s regulatory policies In accordance with the Paperwork any event, we note that there are 28 tire and procedures. Reduction Act of 1980, we state that manufacturers, none of which is a small there are no requirements for business. There are estimated to be over Executive Order 13132 (Federalism) information collection associated with 50,000 tire dealers and retailers; though Executive Order 13132 requires this rulemaking action. we do not have information on how NHTSA to develop an accountable List of Subjects in 49 CFR Part 578 many of these dealers and retailers are process to ensure ‘‘meaningful and Imports, Motor vehicle safety, Motor small businesses, we believe a large timely input by State and local officials vehicles, Rubber and rubber products, percentage is small businesses. in the development of regulatory As noted throughout this preamble, policies that have federalism Tires, Penalties. this proposed rule on civil penalties implications.’’ ‘‘Policies that have In consideration of the foregoing, we would only increase the maximum federalism implications’’ is defined in propose to amend 49 CFR part 578 as set penalty amounts that the agency could the Executive Order to include forth below. obtain for certain violations of regulations that have ‘‘substantial direct PART 578—CIVIL AND CRIMINAL provisions related to school bus safety, effects on the States, on the relationship PENALTIES bumper standards, certain consumer between the national government and information, odometer tampering and the States, or on the distribution of 1. The authority citation for 49 CFR disclosure, and vehicle theft prevention. power and responsibilities among the part 578 is amended to read as follows:

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Authority: Pub. L. No. 101–410, Pub. L. single motor vehicle to conform to an Ground Floor, Room W12–140, No. 104–134, 49 U.S.C. 30165, 30170, 30505, applicable standard under 49 U.S.C. Washington, DC 20590. 32308, 32309, 32507, 32709, 32710, 32912, 33102 and 33103 is only a single • Hand Delivery/Courier: 1200 New and 33115 as amended; delegation of violation. The maximum penalty under Jersey Avenue, SE., West Building, authority at 49 CFR 1.50. this paragraph for a related series of Ground Floor, Room W12–140, 2. Section 578.6, paragraphs (a)(2)(ii), violations is $375,000. Washington, DC 20590, between 9 a.m. (c)(2), (d), (f)(1), and (g), are revised to (2) A person that violates 49 U.S.C. and 5 p.m., Monday through Friday, read as follows: 33114(a)(5) is liable to the United States except Federal Holidays. Telephone: Government for a civil penalty of not 1–800–647–5527. § 578.6 Civil penalties for violations of • specified provisions of Title 49 of the United more than $150,000 a day for each Fax: (202) 493–2251. States Code. violation. Instructions: For detailed instructions (a) * * * * * * * * on submitting comments and additional information on the rulemaking process, (2) * * * Issued on: June 9, 2009. (ii) Violates section 30112(a)(2) of see the Public Participation heading of Stephen P. Wood, Title 49 United States Code, shall be the SUPPLEMENTARY INFORMATION section subject to a civil penalty of not more Acting Chief Counsel. of this document. Note that all than $11,000 for each violation. A [FR Doc. E9–13933 Filed 6–12–09; 8:45 am] comments received will be posted separate violation occurs for each motor BILLING CODE 4910–59–P without change to http:// vehicle or item of motor vehicle www.regulations.gov, including any equipment and for each failure or personal information provided. Please DEPARTMENT OF TRANSPORTATION refusal to allow or perform an act see the Privacy Act heading below. required by this section. The maximum Privacy Act: Anyone is able to search National Highway Traffic Safety the electronic form of all comments penalty under this paragraph for a Administration related series of violations is received into any of our dockets by the $16,950,000. name of the individual submitting the 49 CFR Part 581 comment (or signing the comment, if * * * * * submitted on behalf of an association, (c) * * * [Docket Number NHTSA–2009–0047] (2) The maximum civil penalty under business, labor union, etc.). You may this paragraph (c) for a related series of Bumper Standard; Petition for review DOT’s complete Privacy Act violations is $1,175,000. Rulemaking Statement in the Federal Register (d) Consumer Information—(1) published on April 11, 2000 (65 FR Crashworthiness and Damage AGENCY: National Highway Traffic 19477–78) or you may visit http:// Susceptibility. A person that violates 49 Safety Administration (NHTSA), docketsinfo.dot.gov/. U.S.C. 32308(a), regarding Department of Transportation. Docket: For access to the docket to crashworthiness and damage ACTION: Request for comments. read background documents or susceptibility, is liable to the United comments received, go to the street States Government for a civil penalty of SUMMARY: On July 1, 2008, the Insurance address listed above. The internet access not more than $1,100 for each violation. Institute for Highway Safety (IIHS) to the docket will be at http:// Each failure to provide information or petitioned the agency to amend the www.regulations.gov. Follow the online comply with a regulation in violation of existing bumper standard, to require instructions for accessing the dockets. 49 U.S.C. 32308(a) is a separate compliance by light trucks, vans, and FOR FURTHER INFORMATION CONTACT: violation. The maximum penalty under sport utility vehicles (SUVs), which Hisham Mohamed, Consumer Standards this paragraph for a related series of NHTSA often refers to collectively as Division, National Highway Traffic violations is $575,000 LTVs. The agency had already begun re- Safety Administration, 1200 New Jersey (2) Consumer Tire Information. A evaluating the bumper standard in Ave., SE., West Building, Room W43– person that violates 49 U.S.C. 32308(c), anticipation of the vote on a Global 437, NVS–131, Washington, DC 20590. regarding consumer tire information Technical Regulation on pedestrian Mr. Mohamed’s telephone number is established under 49 U.S.C. 32304A, is safety. NHTSA requests comments and 202–366–0307; E-mail: liable to the United States Government information to assist the agency in [email protected]. determining whether to grant or deny for a civil penalty of not more than SUPPLEMENTARY INFORMATION: $50,000 for each violation. the IIHS petition. * * * * * DATES: You should submit your Background (f) * * * comments early enough to ensure that The agency’s bumper standard, set (1) A person that violates 49 U.S.C. Docket Management receives them not forth at 49 CFR part 581, establishes Chapter 327 or a regulation prescribed later than August 14, 2009. requirements for the impact resistance or order issued thereunder is liable to ADDRESSES: Comments must refer to the of vehicles in low speed front and rear the United States Government for a civil docket notice number cited at the collisions. The purpose of the standard penalty of not more than $2,200 for each beginning of this notice and be is to reduce physical damage to the front violation. The maximum civil penalty submitted to Docket Management, Room and rear ends of a passenger motor under this paragraph for a related series W12–140, ground level, 1200 New vehicle from low speed collisions. The of violations is $150,000. Jersey Ave., SE., Washington, DC 20590 standard applies to passenger motor * * * * * by any of the following methods: vehicles other than multipurpose (g) Vehicle theft protection. (1) A • Federal eRulemaking Portal: http:// passenger vehicles and low speed person that violates 49 U.S.C. www.regulations.gov. Follow the vehicles. 33114(a)(1)–(4) is liable to the United instructions for submitting comments. The history of the Part 581 bumper States Government for a civil penalty of • Mail: Docket Management Facility, standard has been long and complex. In not more than $1,100 for each violation. U.S. Department of Transportation, 1200 its initial efforts in the field of bumper The failure of more than one part of a New Jersey Avenue, SE., West Building regulation, NHTSA issued Federal

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Motor Vehicle Safety Standard (FMVSS) Aug. 28, 1984). The first petitioner not be reasonable, practicable or No. 215, Exterior Protection, under the requested the agency to establish a appropriate for these vehicle types. National Traffic and Motor Vehicle bumper height requirement for all NHTSA also noted that while the Safety Act (the Safety Act), now vehicles. The second petitioner agency recognized that many of these codified as 49 U.S.C. Chapter 301. requested the agency to require rear other vehicles were manufactured with FMVSS No. 215 was initially bumpers on pick-up trucks. bumpers mounted somewhat higher implemented on September 1, 1972. NHTSA responded by stating that than passenger car bumpers, it did not On October 20, 1972, Congress while it was conceivable that a bumper have evidence of any significant safety enacted the Motor Vehicle Information height requirement for vehicles other problems resulting from those and Cost Savings Act (the Cost Savings than passenger cars could result in some differences. Additionally, the agency Act). Title I of that Act, now codified as slight, non-quantifiable safety benefits analyzed data from the 1989 Fatal 49 U.S.C. Chapter 325, provided for relating to unrepaired damage, the Accident Reporting System (FARS) promulgation of bumper standards to agency was unaware of any data file 1, a census of all fatal motor vehicle reduce the economic loss resulting from indicating any significant safety crashes on U.S. roads. The analysis damage to passenger motor vehicles problem with bumpers (or lack of rear indicated that there were no incidences involved in motor vehicle accidents. bumper) on pick-up trucks, vans or of underride or override reported as a The statute specifies that when utility vehicles, relating to mismatch specific cause of the car occupant prescribing a bumper standard, the problems, crash energy management, or fatality, and the agency stated it was agency must design the standard to side impact intrusion. Neither petitioner unaware of any data indicating a safety obtain the maximum feasible reduction provided any such data. problem to be addressed by a of costs to the public, considering the In its response, NHTSA also stated rulemaking addressing bumper heights costs and benefits of carrying out the that in considering possible rulemaking, of pickup trucks, vans or sport utility standard; the effect of the standard on the agency must consider both safety vehicles. However, a review of the 2007 insurance costs and legal fees and costs; issues and whether a proposed FARS data on ‘‘Deaths among savings in consumer time and requirement would be reasonable, Occupants of Passenger Cars with inconvenience; and health and safety, practicable and appropriate for the Underride or Override Reported’’ shows including emission standards. 49 U.S.C. particular type of motor vehicle or item that the data includes 206 occupants 32502(d). of motor vehicle equipment for which it who died in cars with underride or Pursuant to both the authority of the is prescribed. This is specifically override reported, including 34 in Cost Savings Act and the Safety Act, required by the Safety Act. crashes that involved at least one light NHTSA established the Part 581 The agency concluded that truck or van. Thirteen of these fatalities Bumper Standard in 1976. 41 RF 9346 establishing a bumper height occurred in two-vehicle crashes. All 13 (March 4, 1976). As adopted, this requirement for vehicles other than involved a pickup truck, and 10 standard combined the safety features of passenger cars or requiring rear bumpers involved front damage to the car. The FMVSS 215 with new damage resistance on pick-up trucks could significantly agency notes that although this data criteria intended to promote consumer reduce the utility of the vehicle types in reflects that some fatalities have cost savings. There have been a number question. At that time, the agency did involved occupants who died in cars of amendments to the bumper standard not have data showing that there was a with underride or override reported, the since that time. safety problem that would justify data does not reflect the travel or crash NHTSA’s bumper standard does not rulemaking. speed for these crashes. We note that the apply to vehicles classified as trucks In February 1991, the agency again crash or travel speed for these crashes (because they are not passenger motor denied a petition for rulemaking could be above the speed requirements vehicles) or multipurpose passenger regarding bumper heights for small of the bumper standard. vehicles (because they are a type of trucks and SUVs (56 FR 7826, Feb. 26, passenger motor vehicles excluded by 1991). The petitioner was concerned The IIHS Petition the agency when it established the that these vehicles could override the In July 2008 the Insurance Institute bumper standard) the category which hood of passenger cars in crashes. In for Highway Safety (IIHS) petitioned includes vehicles commonly referred to responding to the petition, the agency NHTSA to extend the bumper standard as SUVs. The Cost Savings Act noted that the bumper standard did not to light trucks, vans, and SUVs specifically excludes trucks from any apply to trucks or multipurpose (collectively, LTVs). The IIHS stated bumper standards and allows the passenger vehicles. NHTSA stated that that it is legal to sell new LTVs in the agency to exempt multipurpose it believed it would be inappropriate to United States without any bumpers, and passenger vehicles from bumper require bumpers of these vehicles to be this produces several undesirable standards. Both of these vehicle types at the same height as those of passenger consequences. The IIHS stated that could be regulated under the authority cars. The agency stated that these types many LTVs provide virtually no of the Safety Act. Since trucks are of vehicles require greater ground protection for vital safety-related parts excluded from bumper standards under clearance than passenger cars, to enable such as headlights and taillights, which the Cost Saving Act, any bumper them to clear obstacles and hazards often sustain damage in low-speed standard for these vehicles would need characteristic of commercial and collisions. The IIHS stated that LTVs to be issued solely on the criteria occasional off-road operation. The owners have to pay for expensive included in the Safety Act. agency stated that, for the same reason, repairs to fenders, grilles, and other In the past NHTSA has denied requiring underride guards on trucks parts that sustain unnecessary damage petitions to extend the bumper standard and multipurpose passenger vehicles in low-speed collisions. Further, IIHS to trucks and multipurpose passenger would be inappropriate. The stated that vehicle manufacturers which vehicles. In August 1984, the agency requirement recommended by the choose to equip their LTVs with denied two petitions for rulemaking, petitioner would have significantly bumpers do not have to make them asking the agency to establish safety reduced the utility of the vehicle types requirements for bumpers on vehicles in question. Therefore, the agency 1 The acronym ‘‘FARS’’ now stands for the other than passenger cars (49 FR 34049, believed that such a requirement would ‘‘Fatality Analysis Reporting System.’’

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compatible in height with passenger comparable data available for other NHTSA and the automotive industry. vehicle bumpers. IIHS stated that LTV LTVs? NHTSA is addressing self-protection in bumpers can be much higher than car (2) Are there any estimates of the the near-term through improved side bumpers, which results in excessive costs and benefits of extending the impact protection. On September 11, damage to the passenger vehicles with bumper standard to LTVs? Can these 2007 (72 FR 51908), the agency which they collide at low speeds. costs and benefits be estimated published a final rule upgrading the The IIHS also stated that crash test separately for SUVs, minivans, and requirements of FMVSS No. 214, ‘‘Side results and data from insurance claims pickups? Can these costs and benefits be impact protection,’’ to assure head and demonstrate the safety and property estimated separately for unibody and improved chest protection in side damage consequences of allowing body on frame SUVs, and for different crashes. It will lead to the installation of inadequate bumpers, or none at all, on SUVs by size? Can these costs and new technologies such as side curtain LTVs. The petitioner stated that by benefits be estimated separately for the air bags, which are capable of improving applying passenger vehicle bumper front and rear bumpers? Also, what head and thorax protection to occupants requirements to LTVs, NHTSA would would be the specific safety benefits of of vehicles that crash into poles and make bumpers more compatible across extending the bumper standard to these trees and vehicles that are laterally the range of passenger vehicles. The vehicles (separate from other types of struck by a higher-riding vehicle. petitioner also stated that this would benefits)? To improve partner protection for enhance occupant safety and, at the (3) Should NHTSA consider a more- occupants in struck vehicles, NHTSA same time, reduce costly damage to extensive upgrade to the bumper has conducted research enabling the property in low-speed collisions, a standard for all light vehicles? Does the effect of matching height of the frontal subject which NHTSA and the current standard adequately protect structures and stiffness. NHTSA is also automotive industry are addressing in passenger cars, given the current and pursuing refinement of its data the broader issue of vehicle projected mix of crash partners? What collection to enhance the better compatibility. (Docket: NHTSA–2003– are the estimated repair costs for understanding of the fleet geometry 14623). vehicles with matching and during crashes. mismatching bumpers at various crash In addition to NHTSA’s initiatives, We note that NHTSA had already speeds (for example, 2.5 and 5 mph)? the automobile industry has developed begun re-evaluating the bumper Can the benefits and costs be estimated and committed to a set of voluntary standard in anticipation of a vote on the separately for the front and rear design guidelines and performance Global Technical Regulation (GTR) on bumpers? criteria for enhancing vehicle-to-vehicle pedestrian safety, (see notice at 73 FR (4) Over the past decades, the compatibility. One of the requirement 55201 for further discussion of the passenger vehicle fleet has shifted from options is for the light truck’s primary GTR). The agency is also aware that a fleet containing primarily cars to a frontal energy absorbing structure to there has been a significant change in fleet with a much higher percentage of geometrically overlap at least 50 percent vehicle registration in the U.S. that has light trucks. FHWA data show that of the zone established by NHTSA in its resulted from an increased market shift growth in total miles driven by ‘‘Two- bumper standard (49 CFR part 581) for to light trucks since the most recent axle, four-tire trucks,’’ a category that passenger cars. An alternative to this revision of the bumper standard in includes most or all light trucks used as option is for a secondary structure to 1982. The IIHS petition on its own does passenger vehicles, averaged 5.1% have a lower edge no higher than the not provide sufficient support for the annually from 1985 through 2005.2 bottom of the Part 581 bumper zone. By requested action, but our evaluation While the future mix of the fleet is September 1, 2009, 100 percent of leads us to think that it may be an uncertain, the agency seeks comment participating manufacturers’ new light appropriate time to reconsider past and data on the current usage patterns truck production intended for sale in agency decisions on extending the for light trucks. Since past agency the United States must comply with one bumper standard to other vehicles. decisions have focused on the utility of of these approaches. NHTSA requests comments to assist these vehicles, are there any data that (6) IIHS reported that Ford has the agency in deciding whether to grant provide the current usage patterns of reduced the bumper height mismatch or deny the IIHS petition. To inform the light trucks? Are there vehicle features for one of its popular SUVs without agency’s decision, the following are key that distinguish light trucks which are compromising vehicle function on issues that the agency would like primarily work vehicles from those that loading ramps and off-road. What data commenters to address. In particular, are used primarily as passenger are available to support this statement? the agency requests that commenters vehicles? How have the design changes on this include documents, studies, test (5) For an LTV, what is the probability vehicle changed its approach and protocols, data, or references which of being involved in low speed crashes departure angles? What were the trade- support their comments. over the vehicle’s lifetime? And what is offs, if any, in reducing the bumper- Cost/Benefits the difference in repair and height mismatch for this vehicle? Would inconvenience costs for matching and there be problems in redesigning other (1) The petitioner reported that crash mismatching vehicle bumpers? Also LTVs to comply with the bumper tests demonstrate that there are bumper what is the frequency of vehicle crashes standard and what would these height mismatches between SUVs and at various low speed impacts (for problems be? What will be the cost of passenger cars based on four tested MY example, 2.5, 5, 7.5 and 10 mph)? Please redesigning LTVs to comply with the 2008 SUVs and five tested MY 2004 provide data. bumper standard? SUVs. The petitioner reported that crash (7) What data are available to indicate tests with greater bumper mismatches Vehicle Compatibility any significant safety problem with tend to produce damage with higher Bumper mismatch represents one bumpers (or lack of rear bumper) on repair costs. Are these results aspect of the broader issue of vehicle pick-up trucks, vans or utility vehicles, representative of the current SUV fleet? compatibility being addressed by relating to mismatch problems, crash Are the results likely to reflect the energy management, or side impact future mix of SUVs? Are there any 2 Docket No. NHTSA–2008–0089. intrusion?

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(8) How much overlap in bumper a requirement for these vehicles to meet three copies of your complete height is needed between the front of the current bumper standard? Are there submission, including the information one vehicle and the rear of another any data on the extent to which SUVs you claim to be confidential business vehicle to eliminate or reduce bumper operated on the public roads have their information, to the Chief Counsel, mismatch? height adjusted to on-road position? National Highway Traffic Safety (9) Is there a way to define vehicle Please provide information on these Administration, 1200 New Jersey characteristics that require a higher data. Avenue, SE., Washington, DC 20590. bumper, such that some LTVs could be Include a cover letter supplying the exempt from a bumper height standard, Statutory Criteria information specified in our while others would be required to (15) As noted earlier, since trucks are confidential business information supply bumpers of certain heights? excluded from bumper standards under regulation (49 CFR part 512). (10) Please provide data to support the Cost Savings Act, any bumper incidences of underride or override standards for these vehicles would need In addition, send two copies from reported as a specific cause of vehicle to meet the criteria in the Safety Act. which you have deleted the claimed occupant injury or fatality. What is the The current bumper standard was confidential business information to availability of data indicating a safety developed under the criteria of the Cost Docket Management at the address problem that could have been addressed Savings Act. Could a straight forward given above under ADDRESSES, or submit by a rulemaking addressing bumper extension of the bumper standard to them electronically through the Federal heights of pickup trucks, vans or sport trucks be justified under the criteria of eRulemaking Portal at http:// utility vehicles? Please provide specific the Safety Act alone? If so, how? If not, www.regulations.gov. details. why not? (11) To what extent does the U.S. fleet D. Will the agency consider late of LTVs meet the bumper standard Public Participation comments? requirements? What are the bumper A. How do I prepare and submit We will consider all comments that costs, weights and heights (i.e. comments? measurements of the bumper structural Docket Management receives before the element from the ground) of the Your comments must be written and close of business on the comment different types of LTVs in the U.S. fleet? in English. To ensure that your closing date indicated above under comments are correctly filed in the DATES. To the extent possible, we will Pedestrian Safety Docket, please include the docket also consider comments that Docket (12) Ongoing work on the pedestrian number of this document in your Management receives after that date. safety GTR has shown that changes in comments. the vehicle geometry can have a Your primary comments must not be E. How can I read the comments profound effect on pedestrian leg more than 15 pages long. (49 CFR submitted by other people? injuries when struck by the front 553.21). However, you may attach bumper. Any decision to change the additional documents to your primary You may read the comments received bumper standard should therefore comments. There is no limit on the by the Docket Management at the consider, if not provide, an in-depth length of the attachments. address given under ADDRESSES. The analysis of pedestrian injuries and Please submit two copies of your hours of the Docket are indicated above fatalities related to the bumper standard. comments, including the attachments, in the same location. To read the Are there any analyses on the effect of to Docket Management at the address comments on the Internet, go to http: vehicle frontal geometry changes on given above under ADDRESSES. //www.regulations.gov. Follow the pedestrian safety that could happen as Comments may also be submitted to online instructions for accessing the a result if LTVs were required to comply the docket electronically on the Federal docket. eRulemaking Portal at http:// with the existing bumper standard? Please note that even after the www.regulations.gov. Follow the online Please provide information on these comment closing date, we will continue analyses. instructions for submitting comments. (13) What impact would a change to to file relevant information on the B. How can I be sure my comments were the bumper standard have on the docket as it becomes available. Further, received? potential for manufacturers to also meet some people may submit late comments. the pedestrian safety GTR requirements? If you wish Docket Management to Accordingly, we recommend that you Please provide information on that data. notify you upon its receipt of your periodically check the docket for new comments, enclose a self-addressed, material. New Technologies stamped postcard in the envelope Authority: 49 U.S.C. 32502; 322, 30111, (14) Vehicle height could be adjusted containing your comments. Upon 30115, 30117 and 30166; delegation of for on or off-road usage, for example, by receiving your comments, Docket authority at 49 CFR 1.50. using air suspension. Recent Management will return the postcard by development in materials and designs mail. Issued on: June 4, 2009. has helped introduce height adjustable Stephen R. Kratzke, C. How do I submit confidential suspension on some SUVs. What is the Associate Administrator for Rulemaking. business information? available data on the feasibility, costs [FR Doc. E9–13531 Filed 6–12–09; 8:45 am] and benefits of using vehicle height If you wish to submit any information BILLING CODE 4910–59–P adjustment technologies to comply with under a claim of confidentiality, send

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Notices Federal Register Vol. 74, No. 113

Monday, June 15, 2009

This section of the FEDERAL REGISTER available for public inspection and preparing food for themselves and contains documents other than rules or posted without change, including any others, and who have an incentive to proposed rules that are applicable to the personal information, to http:// listen to food safety messages and adapt public. Notices of hearings and investigations, www.regulations.gov. or change their behaviors in response to committee meetings, agency decisions and Docket: For access to comments these messages. rulings, delegations of authority, filing of petitions and applications and agency received, go to the FSIS Docket Room at Before launching the mass media statements of organization and functions are the address listed above between 8:30 advertising pilot, 400 randomly selected examples of documents appearing in this a.m. and 4:30 p.m., Monday through women in the target audience will section. Friday. complete a 10 minute pre-test telephone For Additional Information: Contact survey. The pre-test survey will assess John O’Connell, Paperwork Reduction attitudes, beliefs, and behavior DEPARTMENT OF AGRICULTURE Act Coordinator, Food Safety and pertaining to food handling and food Inspection Service, USDA, 1400 safety, media habits, and demographic Food Safety and Inspection Service Independence Avenue, SW., Room 3532 and personal information (annual [Docket No. FSIS–2009–0013] South Building, Washington, DC 20250, household income, education level, and (202) 720–0345. ethnic origin). Approximately three to Notice of Request for a New SUPPLEMENTARY INFORMATION: four weeks after the pre-test survey and Information Collection (Be Food Safe Title: Be Food Safe Campaign Pilot immediately following the airing of the Campaign Pilot Surveys) Surveys. food safety messages, the post-test Type of Request: New information survey will be conducted with a second AGENCY: Food Safety and Inspection collection. unique sample of 400 women. The post- Service, USDA. Abstract: FSIS has been delegated the test survey will assess awareness of and ACTION: Notice and request for authority to exercise the functions of the reactions to the advertising and its food comments. Secretary as specified in the Federal safety messages, as well as gauge Meat Inspection Act (FMIA) (21 U.S.C. respondents’ association of the SUMMARY: In accordance with the 601, et seq.), the Poultry Products advertising with USDA. The post-test Paperwork Reduction Act of 1995 and Inspection Act (PPIA) (21 U.S.C. 451, et survey will also inventory respondents’ the Office of Management and Budget seq.), and the Egg Products Inspection attitudes, intentions, and behaviors (OMB) regulations, the Food Safety and Act (EPIA) (21 U.S.C. 1031, et seq.). related to food safety (i.e., clean, Inspection Service (FSIS) is announcing FSIS protects the public by verifying separate, cook, and chill). its intention to request a new that meat, poultry, and egg products are The data collected in these surveys information collection concerning safe, wholesome, unadulterated, and will allow FSIS to determine what surveys of consumers to assess the correctly labeled and packaged. knowledge members of the target effectiveness of the Be Food Safe FSIS is requesting a new information audience had about food safety before campaign mass media advertising pilot. collection addressing the paperwork the advertising, whether they were DATES: Comments on this notice must be burden related to the collection of aware of the campaign, and, if they received on or before August 14, 2009. information for the Be Food Safe were, whether they changed any food ADDRESSES: FSIS invites interested campaign pilot surveys. preparation behaviors as a result of the persons to submit comments on this FSIS has initiated the Be Food Safe advertising. The information collected notice. Comments may be submitted by campaign to educate consumers about will be used to refine the campaign’s either of the following methods: the importance of safe food handling messages, materials, and approaches in • Federal eRulemaking Portal: This and how to reduce the risks associated order to improve its overall Web site provides the ability to type with foodborne illness. As a part of the effectiveness. Addressing any issues short comments directly into the Be Food Safe campaign, the Agency identified during the evaluation of the comment field on this Web page or plans to purchase advertising through advertising in Oklahoma City, attach a file for lengthier comments. Go Oklahoma City, Oklahoma, mass media Oklahoma, will help ensure that the use to http://www.regulations.gov. Follow outlets to promote safe food handling of mass media advertising nation-wide the online instructions at that site for messages to consumers. The pilot for the Be Food Safe campaign is submitting comments. surveys will measure consumer successful in promoting proper food • Mail, including floppy disks or CD– awareness and response. The Oklahoma safety behavior among the general ROMs, and hand- or courier-delivered City, Oklahoma, pilot surveys will test population. items: Send to Docket Clerk, U.S. the effectiveness of the use of mass FSIS has made the following Department of Agriculture, Food Safety media advertising to promote the four estimates based upon an information and Inspection Service, 1400 Be Food Safe campaign safe food collection assessment: Independence Avenue, SW., Room handling messages: clean, separate, Estimate of Burden: FSIS estimates 2534, South Agriculture Building, cook, and chill. The pilot advertising that it will take participants an average Washington, DC 20250–3700. and surveys will be targeted at women, of 10 minutes per response and non- Instructions: All items submitted by aged 25 to 49, who are caregivers for participants 2 minutes per response. mail or electronic mail must include the children under the age of 10 or for older Respondents: Consumers. Agency name and docket number FSIS– adults. FSIS identified these women as Estimated Total No. of Respondents: 2009–0013. Comments received in the target audience because they are the 800 participants and 434 non- response to this docket will be made individuals who are most likely to be participants. (The Agency estimates that

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approximately 434 consumers contacted professionals, scientific professionals, Project could not be made consistent by telephone will decline to participate and other individuals who have with the LRMPs of the Rogue River, in the surveys). requested to be included. The Update Umpqua and Winema National Forests Estimated No. of Annual Responses also is available on the FSIS Web page. because of the nature of pipeline per Respondent: 1. Through Listserv and the Web page, construction. Therefore, in order to Estimated Total Annual Burden on FSIS is able to provide information to a comply with the requirements of the Respondents: 144.8 hours. much broader, more diverse audience. National Forest Management Act Copies of this information collection In addition, FSIS offers an e-mail (NFMA) the Forest Service must amend assessment can be obtained from John subscription service which provides these LRMPs to make provision for the O’Connell, Paperwork Reduction Act automatic and customized access to PCGP. Coordinator, Food Safety and Inspection selected food safety news and DATES: Comments concerning the scope Service, USDA, 1400 Independence, information. This service is available at of the analysis must be received by 30 SW., Room 3532, South Bldg., http://www.fsis.usda.gov/ days from the date this notice is Washington, DC 20250, (202)720–0345. news_and_events/email_subscription/. published in the Federal Register. The Comments are invited on: (a) Whether Options range from recalls to export draft environmental impact statement the proposed collection of information information to regulations, directives is necessary for the proper performance for amendment of forest plans is and notices. Customers can add or expected to be published in August, of FSIS’s functions, including whether delete subscriptions themselves, and the information will have practical 2009 and the final environmental have the option to password protect impact statement is expected in utility; (b) the accuracy of FSIS’s their accounts. estimate of the burden of the proposed December, 2009. collection of information, including the Done at Washington, DC, on June 9, 2009. ADDRESSES: Send written comments to: validity of the methodology and Alfred V. Almanza, Pam Sichting, Umpqua National Forest, assumptions used; (c) ways to enhance Administrator. 2900 NW. Stewart Parkway, Roseburg, the quality, utility, and clarity of the [FR Doc. E9–13936 Filed 6–12–09; 8:45 am] OR 97471. Comments may also be sent information to be collected; and (d) BILLING CODE 3410–DM–P via e-mail to: comments- ways to minimize the burden of the [email protected], or collection of information, including via facsimile to 541–957–3495. through the use of appropriate DEPARTMENT OF AGRICULTURE Comments may be hand-delivered to the automated, electronic, mechanical, or above address Monday through Friday, other technological collection Forest Service from 8 a.m. till 4:30 p.m., excluding legal holidays. techniques, or other forms of Proposed Amendment of Rogue River, information technology. Comments may Comments received in response to Umpqua and Winema National Forest this solicitation, including names and be sent to both FSIS, at the addresses (NF) Land and Resource Management provided above, and the Desk Officer for addresses of those who comment, will Plans for the Pacific Connector Gas be part of the public record for this Agriculture, Office of Information and Pipeline Regulatory Affairs, Office of proposed action. Comments submitted Management and Budget, Washington, AGENCY: Forest Service, USDA. anonymously will be accepted and considered; however, anonymous DC 20253. ACTION: Notice of intent to prepare an comments will not provide the Responses to this notice will be environmental impact statement for respondent with standing to appeal the summarized and included in the request Land and Resource Management Plan subsequent decision. for OMB approval. All comments will amendments. also become a matter of public record. FOR FURTHER INFORMATION CONTACT: Pam SUMMARY: The USDA Forest Service is Sichting at 541–957–3342 or by e-mail Additional Public Notification proposing to amend the Land and at [email protected]. Individuals who Public awareness of all segments of Resource Management Plans (LRMP) of use telecommunication devices for the rulemaking and policy development is the Rogue River (administered as the deaf (TDD) may call the Federal important. Consequently, in an effort to Rogue River-Siskiyou NF), Umpqua, and Information Relay Service (FIRS) at 1– ensure that the public and in particular Winema (administered as the Fremont- 800–877–8339 between 8 a.m. and 8 minorities, women, and persons with Winema NF) National Forests to make p.m., Eastern Time, Monday through disabilities are aware of this notice, provision for the proposed Pacific Friday. FSIS will announce it on-line through Connector Gas Pipeline (PCGP). The Information concerning the the FSIS Web page located at http:// Federal Energy Regulatory Commission construction and operation of the PCGP www.fsis.usda.gov/regulations/ (FERC) is the lead agency for the is contained in the FERC Jordon Cove- 2009_Notices_Index/index.asp. environmental analysis of the Pacific Connector Gas Pipeline Project FSIS also will make copies of this construction and operation of the Final Environmental Impact Statement. Federal Register publication available proposed natural gas pipeline (FERC Also information about the Project is through the FSIS Constituent Update, Docket No. CP07–441–000). The FERC available from the FERC Office of which is used to provide information has prepared an environmental impact External Affairs at 1–866–208 FERC regarding FSIS policies, procedures, statement (EIS) that discusses the (3372) or on the FERC Internet Web site regulations, Federal Register notices, environmental impacts that could result (http://www.ferc.gov) using the eLibrary FSIS public meetings, and other types of from the construction and operation of link. Click on the eLibrary link, click on information that could affect or would the PCGP. FERC issued the FEIS for the ‘‘General Search,’’ and enter the docket be of interest to our constituents and PCGP on May 1, 2009. number (CP07–441–000) excluding the stakeholders. The Update is The U.S. Department of Agriculture, last three digits in the Docket. For communicated via Listserv, a free e-mail Forest Service is a Cooperating Agency assistance, please contact FERC Online subscription service consisting of with the FERC in environmental Support at [email protected] industry, trade, and farm groups, analysis and preparation of the EIS for or toll free at 1–866–208–3676, or for consumer interest groups, allied health the PCGP. Certain features of the PCGP TTY, contact (202) 502–8659. The

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eLibrary link on the FERC Internet Web gas pipeline Right of Way Grants across developments that may adversely affect site also provides access to the texts of all Federal lands, including the Forest LSRs be minimized or mitigated (see final documents issued by the Service, under the Mineral Leasing Act. Standards and Guidelines for Commission, such as Orders, notices, The PCGP must have a Right of Way Management of Habitat for Late- and rule makings. Grant to occupy any Federal lands in Successional and Old-Growth Related Finally, PCGP has established a Web addition to the FERC’s Certificate. To Species Within the Range of the site for this project at http:// issue a Right of Way Grant across NFS Northern Spotted Owl, Page C–17). This www.pacificconnectorgp.com/. The Web lands, the BLM must obtain the consent change in land allocation is proposed to site includes a project overview, of the Forest Service. mitigate the potential adverse impact of timeline, safety and environmental The National Forest Management Act the PCGP on LSR 227 on the Rogue information, and answers to frequently (NFMA) requires all projects or River National Forest. This amendment asked questions. You can also request activities on a given National Forest to would change future management additional information by e-mailing be consistent with that Forest’s LRMP. direction for the lands transferred from PCGP at [email protected] Certain features of this project could not matrix to LSR. Additional mitigations or by phone at 866–227–9249. be made consistent with the LRMPs of for impacts to LSRs are included in the SUPPLEMENTARY INFORMATION: the Rogue River, Umpqua and Winema FERC FEIS in Appendix L for the PCGP. National Forests because of the nature of • By changing the Visual Quality Purpose and Need for Action pipeline construction. Therefore, the Objective (VQO) in the vicinity where Jordon Cove—Pacific Connector LP Forest Service must amend these LRMPs the 75 foot wide PCGP Right of Way (Company) has proposed to construct a in order to comply with the crosses the Big Elk Road from 36 inch natural gas pipeline from a requirements of NFMA prior to Foreground Retention to Foreground liquified natural gas terminal at Coos consenting to the BLM’s issuance of a Partial Retention and allowing ten to Bay, Oregon, to an interstate gas Right of Way Grant. This Notice of fifteen years for amended visual quality transmission pipeline at Malin, Oregon. Intent is for preparation of an EIS by the objectives to be attained. Existing The PCGP will provide natural gas to Forest Service that will consider and Standards and Guidelines for VQO in southern Oregon, the Willamette Valley, disclose the significance of these foreground retention where the PCGP California and Nevada. The Company proposed amendments pursuant to 36 crosses the Big Elk Road require VQO’s submitted its application for the Pacific CFR 219.10(f)(1982 Version). The issue be met within 1 year of completion of Connector Gas Pipeline (PCGP) project of whether a plan amendment is the project and that management to the FERC on September 4, 2007. The significant is guided by several factors, activities not be visually evident (Rogue applications were noticed in the Federal including the timing and duration of the River NF LRMP, Page 4–72, Register on September 13, 2007. The proposed change, the location and size Management Area 6). This amendment FERC authorizes the construction and of the project, and how the proposed applies only to the Right of Way of the operation of natural gas pipelines upon change may alter multiple-use goals and PCGP in the vicinity of the Big Elk Road its determination that the pipeline objectives for long-term land and and does not change future management fulfills a public need. The PCGP is resource management. In this analysis of direction for any other project. proposed to cross the Rogue River, significance, the Forest Service will rely Additional mitigations for impacts to Umpqua and Winema National Forests on the FERC EIS for consideration of scenic resources are included in the on its route between Coos Bay and environmental consequences of PCGP FEIS Appendix L. Malin, Oregon. Transmission of natural construction and operation of the PCGP. • By changing the Visual Quality gas is a legitimate use of public land These amendments of Forest Plans will Objective in the vicinity where the 75 consistent with the Natural Gas Act, the only be implemented if the FERC foot wide PCGP Right of Way crosses Energy Policy Act of 2005 and the authorizes the PCGP. the Pacific Crest Trail (PCT) from Forest Service’s National Strategic Plan, Foreground Partial Retention to 2007–2012. Proposed Action modification and allowing ten to fifteen A Notice of Intent (NOI) was issued This Proposed Action is to amend the years for amended visual quality by the FERC for construction and LRMPs of the Rogue River, Umpqua and objectives to be attained. Existing operation of the PCGP on June 23, 2006. Winema National Forests to make Standards and Guidelines for Visual Subsequently, a Draft Environmental provision for the PCGP. Quality Objectives in Foreground Partial Impact Statement (DEIS) was made Rogue River NF LRMP—The Forest Retention (Rogue River NF LRMP, Page available to the public on August 29, Service proposes to amend the Rogue 4–86, Management Area 7) where the 2008. The public comment period on River NF LRMP as follows: PCGP crosses the Pacific Crest Trail, the DEIS closed on December 4, 2008. • By establishing a Forest Plan requires visual mitigations to meet the The FERC, as lead Federal agency, objective that states: While considering stated visual quality objective within 2 issued the Jordan Cove-Pacific other multiple use values, the Forest years of the completion of the project Connector Gas Pipeline Final shall facilitate and make provision for and that management activities be Environmental Impact Statement (FEIS) energy transmission via the Pacific visually subordinate to the landscape. on May 1, 2009. For portions of the Connector Gas Pipeline consistent with This amendment applies only to the proposed PCGP that cross National the Energy Policy Act of 2005, the Right of Way of the PCGP in the vicinity Forest System lands, the Forest Service Mineral Leasing Act, the Natural Gas of the Pacific Crest Trail and does not was a cooperating agency with the FERC Act, the Multiple Use Sustained Yield change future management direction. in preparing the EIS for the Project. The Act and the National Forest Additional mitigations for visual FERC will use this FEIS to determine Management Act. impacts are included in the PCGP FEIS whether to issue a Certificate of Public • By changing the designation of Appendix L. Convenience and Necessity (Certificate). approximately 600 acres from the matrix • By waiving restrictions on The Certificate authorizes construction land allocation to the LSR 227 land detrimental soil conditions from and operation of the PCGP. allocation. Standards and Guidelines for displacement and compaction within The Bureau of Land Management Developments in Late Successional the Right of Way of the PCGP in all (BLM) issues and administers natural Reserves (LSRs) require that new management areas. Standards and

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Guidelines for detrimental soil impacts displacement and compaction within Retention where the PCGP is in the in all affected management areas require the Right of Way of the PCGP. Standards vicinity of the Clover Creek Road from that no more than 10% of the activity and Guidelines for Soils (Umpqua NF approximate pipeline milepost 170 to area be detrimentally compacted, LRMP, page IV–67) requires that not 175. This potentially affects puddled or displaced upon completion more than 20% of the project area approximately 50 acres where it will of a project. Additional mitigations for should have detrimental compaction, take additional time to meet the Partial detrimental soil conditions are in the displacement or puddling after Retention standard. Standards and PCGP FEIS in Appendix L. completion of the project. This Guidelines for Foreground Partial • By allowing the PCGP to cross the amendment applies only to the project Retention (Winema NF LRMP, page 4– Restricted Riparian land allocation. This area of the PCGP and does not change 107, MA 3B) requires that visual quality potentially affects two perennial streams future management direction. objectives be met within 1 year of and approximately 0.7 of an acre of the Mitigations for soils with detrimental completion of a project. The Forest Restricted Riparian land allocation. conditions are included in the PCGP Service proposes to allow a longer time Standards and Guidelines for the FEIS in Appendix L. frame to meet the amended VQO at this Restricted Riparian land allocation • By amending prescriptions C2–I, location. This amendment applies only (Rogue River NF LRMP, page 4–308, C2–II, C2–III, C2–IV, C2–V, and C2–VI to the project area of the PCGP in the Management Area 26) states that (Umpqua NF LRMP IV–169–182) to vicinity of the Clover Creek Road and transmission corridors should be allow the PCGP to cross Riparian Areas does not change future management located outside of this management and run parallel to streams. This direction. Mitigations for potential area. This amendment applies only to potentially affects approximately 0.8 of adverse impacts to scenic values are the project area of the PCGP and does an acre of Riparian Reserve. This included in the FEIS for the PCGP in not change future management amendment applies only to the project Appendix L. direction. Mitigations for potential area of the PCGP and does not change • By waiving restrictions on adverse impacts to the Restricted future management direction. detrimental soil conditions from Riparian land allocation are included in Mitigations for potential adverse displacement and compaction within the PCGP FEIS in Appendix L. impacts from Project stream crossings the Right of Way of the PCGP in all Umpqua NF LRMP—The Forest are included in the FEIS for the PCGP management areas. Standards and Service proposes to amend the Umpqua in Appendix L. Guidelines for detrimental soil impacts NF LRMP as follows: Winema National Forest—The Forest (Winema NF LRMP, page 4–73, 12–5) in • By changing the designation of Service proposes to amend the Winema all affected management areas require approximately 585 acres from the matrix NF LRMP as follows: that no more than 20% of the activity land allocation to the LSR 223 land • By amending Standards and area be detrimentally compacted, allocation. Standards and Guidelines for Guidelines for Management Area 3 puddled or displaced upon completion Developments in Late Successional (Winema NF LRMP, page 4–103–4, of a project. Additional mitigations for Reserves (LSRs) require that new Lands) to allow the 95 foot wide PCGP detrimental soil conditions are in the developments that may adversely affect corridor in MA–3 from the Forest PCGP FEIS in Appendix L. LSRs be minimized or mitigated (see Boundary to the Clover Creek Road • By waiving restrictions on Standards and Guidelines for corridor. This corridor is approximately detrimental soil conditions from Management of Habitat for Late- 1 mile long and affects and potentially displacement and compaction within Successional and Old-Growth Related affects approximately 11 acres. This the 75 foot wide Right of Way of the Species Within the Range of the amendment applies only to the project PCGP within Management Area 8 Northern Spotted Owl, Page C–17). This area of the PCGP and does not change Riparian Area. This potentially affects change in land allocation is proposed to future management direction. approximately 0.5 miles of Management mitigate the potential adverse impact of Mitigations for potential adverse Area 8 Riparian Area totaling an the PCGP on LSR 223 on the Umpqua impacts to scenic values are included in estimated 9.6 acres. Standards and NF. This amendment would change the FEIS for the PCGP in Appendix L. Guidelines for Soil and Water, • future management direction for the By allowing more time to achieve Management Area 8 (Winema NF LRMP, lands transferred from matrix to LSR. Visual Quality Objectives (VQO) in the page 4–137, 2) require that not more Additional mitigations for impacts to vicinity where the 75 foot wide PCGP than 10% of the total riparian zone in LSRs are included in the PCGP FEIS in corridor crosses the Dead Indian an activity area be in a detrimental soil Appendix L. Memorial Highway. Standards and condition upon the completion of a • By amending Standards and Guidelines for Scenic Management, project. This amendment applies only to Guidelines for Fisheries (Umpqua NF Foreground Retention (Winema NF the project area of the PCGP and does LRMP, page IV–33, Forest-Wide) to LRMP, page 4–103, MA 3A, Foreground not change future management allow the removal of effective shading Retention) require visual quality direction. Mitigations for potential vegetation where perennial streams are objectives for a given location be adverse soil impacts are included in the crossed by the PCGP. This potentially achieved within 1 year of completion of PCGP FEIS in Appendix L. affects approximately 5 perennial the project. The Forest Service proposes streams by removing an estimated 3 to allow a longer time frame to meet the Lead Agency acres of effective shade. This specified VQO at this location. This The Forest Service is the Lead Agency amendment applies only to the 75 foot amendment applies only to the project for amendments of Forest Plans. right of way where the PCGP crosses area of the PCGP and does not change perennial streams and does not change future management direction. Responsible Official future management direction at any Mitigations for visual impacts are The Responsible Officials for other location. Mitigations for impacts included in the FEIS for the PCGP in amendments of the Rogue River, on fisheries are included in the FERC Appendix L. Umpqua and Winema LRMPs are FEIS for the PCGP in Appendix L. • By allowing more time to meet respectively Forest Supervisors, Scott D. • By waiving restrictions on Visual Quality Objectives (VQO) for Conroy, Clifford J. Dils and Karen detrimental soil conditions from Scenic Management, Foreground Partial Shimamoto.

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Nature of Decision To Be Made indicate that domestic poultry in these Highly pathogenic avian influenza The nature of the decision to be made two counties continue to be affected (HPAI) is a highly infectious disease of is whether the respective LRMPs would with HPAI H5N1, we would conclude poultry. The H5N1 subtype of HPAI is be amended if the FERC authorizes the that the importation of live birds, an extremely infectious and fatal form of PCGP. poultry carcasses, parts of carcasses, and the disease. HPAI can strike poultry eggs (other than hatching eggs) of quickly without any warning signs of Scoping Process poultry, game birds, or other birds from infection and, once established, can This notice of intent initiates the Ba´cs-Kiskun and Csongra´d Counties in spread rapidly from flock to flock. HPAI scoping process, which guides the Hungary presents a low risk of viruses can also be spread by manure, development of the environmental introducing HPAI H5N1 into the United equipment, vehicles, egg flats, crates, impact statement. With this NOI, the States. and people whose clothing or shoes Forest Service is requesting public DATES: We will consider all comments have come in contact with the virus. comments on the proposed amendments that we receive on or before July 15, HPAI viruses can remain viable at of the Rogue River, Umpqua and 2009. moderate temperatures for long periods in the environment and can survive Winema NF LRMPs. ADDRESSES: You may submit comments It is important that reviewers provide indefinitely in frozen material. The by either of the following methods: H5N1 subtype of HPAI has been of their comments at such times and in • Federal eRulemaking Portal: Go to particular concern because it has such manner that they are useful to the http://www.regulations.gov/fdmspublic/ crossed the species barrier and caused agency’s preparation of the component/ disease in humans. environmental impact statement. main?main=DocketDetial&d=APHIS- Therefore, comments should be From June 9 to July 12, 2006, 2009-0005 to submit or view comments Hungary’s Department for Food Chain provided prior to the close of the and to view supporting and related comment period and should clearly Safety and Animal Health (DFCSAH) materials available electronically. reported to the World Organization for articulate the reviewer’s concerns and • Postal Mail/Commercial Delivery: Animal Health (OIE) seven outbreaks of contentions. The submission of timely Please send two copies of your comment and specific comments can affect a HPAI H5N1 in domestic waterfowl in to Docket No. APHIS–2009–0005, ´ reviewer’s ability to participate in Bacs-Kiskun County. Regulatory Analysis and Development, On January 21 and January 26, 2007, subsequent administrative appeal or PPD, APHIS, Station 3A–03.8, 4700 the DFCSAH detected two outbreaks of judicial review. River Road Unit 118, Riverdale, MD HPAI H5N1 in commercial flocks of Dated: June 8, 2009. 20737–1238. Please state that your geese in Csongra´d County. Clifford J. Dils, comment refers to Docket No. APHIS– To prevent the introduction of HPAI Forest Supervisor. 2009–0005. H5N1 into the United States, APHIS Reading Room: You may read any designated Hungary’s counties of Ba´cs- [FR Doc. E9–14045 Filed 6–12–09; 8:45 am] comments that we receive on the BILLING CODE 3410–11–P Kiskun and Csongra´d as regions where evaluation in our reading room. The HPAI was considered to exist and reading room is located in room 1141 of prohibited the importation of birds, the USDA South Building, 14th Street DEPARTMENT OF AGRICULTURE poultry, and poultry products from and Independence Avenue, SW., these regions into the United States. Animal and Plant Health Inspection Washington, DC. Normal reading room In a document titled ‘‘APHIS’ Service house are 8 a.m. to 4:30 p.m., Monday Evaluation of the Status of High through Friday, except holidays. To be [Docket No. APHIS–2009–0005] Pathogenicity Avian Influenza H5N1 sure someone is there to help you, Virus in Hungary’’ (November 2008), we please call (202) 690–2817 before Notice of Availability of an Evaluation present the results of our evaluation of coming. of the Highly Pathogenic Avian the status of HPAI H5N1 in domestic Other Information: Additional poultry in Hungary in light of the Influenza Subtype H5N1 Status of information about APHIS and its Hungary actions taken by Hungarian authorities programs is available on the Internet at since the outbreaks, and document our AGENCY: Animal and Plant Health http://www.aphis.usda.gov. analysis of the risk associated with Inspection Service, USDA. FOR FURTHER INFORMATION CONTACT: Mr. allowing the importation of birds, ACTION: Notice of availability and Javier Vargas, Case Manager, poultry, and poultry products from request for comments. Regionalization Evaluation Services Ba´cs-Kiskun and Csongra´d Counties, Staff, National Center for Import and Hungary, into the United States in the SUMMARY: We are advising the public Export, VS, APHIS, 4700 River Road, aftermath of the outbreaks. that the Animal and Plant Health Unit 38, Riverdale, MD 20737–1231; We based our evaluation of the HPAI Inspection Service has prepared an (301) 734–0756. H5N1 status of the two counties in evaluation of the animal health status of SUPPLEMENTARY INFORMATION: Hungary on the following critical two counties (Ba´cs-Kiskun and Background factors: Csongra´d) in Hungary relative to the • Hungary had been free of outbreaks H5N1 subtype of highly pathogenic Under the Animal Health Protection of the H5N1 subtype in its domestic avian influenza (HPAI). The evaluation Act (7 U.S.C. 8301 et seq.), the Animal poultry for at least 3 months as a result presents our assessment of the HPAI and Plant Health Inspection Service of effective control measures taken by a H5N1 detection, control, and (APHIS) has the authority to prohibit or competent veterinary infrastructure; eradication measures in place in those restrict the importation into the United • HPAI H5N1 was a notifiable disease two counties in Hungary during States of animals, animal products, and in Ba´cs-Kiskun and Csongra´d Counties outbreaks of HPAI H5N1 in 2006 and other articles in order to prevent the at the time of the outbreaks; 2007. If, after the close of the comment introduction of diseases and pests into • Hungary had an ongoing disease period, APHIS can identify no the U.S. livestock and poultry awareness program in place at the time additional risk factors that would populations. of the outbreaks;

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• Hungary investigated notified or FURTHER INFORMATION CONTACT. Please Dated in Washington, DC, June 9, 2009. suspected occurrences of the disease; refer to the title of the evaluation when Christopher Byrnes, • Hungary had an effective requesting copies. Chief, Regional Programs Coordination Unit. surveillance program in place that Authority: 7 U.S.C. 450, 7701–7772, 7781– supported the detection and Agenda and Notice of Public Meeting of 7786, and 8301–8317; 21 U.S.C. 136 and the Kansas Advisory Committee investigation of outbreaks; 136a; 31 U.S.C. 9701; 7 CFR. 2.22, 2.80, and • Diagnostic and laboratory 371.4. Notice is hereby given, pursuant to capabilities within Ba´cs-Kiskun and the provisions of the rules and Csongra´d Counties were both adequate Done in Washington, DC, this 9th day of June 2009. regulations of the U.S. Commission on and effective; Civil Rights (Commission), and the • Hungary undertook appropriate Kevin Shea, Federal Advisory Committee Act eradication and control measures and Acting Administrator, Animal and Plant (FACA), that a planning meeting of the movement restrictions in response to Health Inspection Service. Kansas Advisory Committee to the the outbreaks to prevent further spread [FR Doc. E9–14004 Filed 6–12–09; 8:45 am] Commission will convene by conference of disease; and BILLING CODE 3410–34–P call at 2 p.m. and adjourn at • Procedures used for repopulation of approximately 3 p.m. on Thursday, June affected premises in Ba´cs-Kiskun and 25, 2009. The purpose of this meeting is Csongra´d Counties included monitoring to discuss the SAC transcript to demonstrate that HPAI H5N1 had COMMISSION ON CIVIL RIGHTS concerning ‘‘Kansas’s Caucus Process been eradicated from the premises. Based on these factors, which are and Related Voting Rights Issues’’ and Agenda and Notice of Public Meeting ‘‘Enforcement of Employment Civil consistent with the OIE’s of the Minnesota Advisory Committee recommendations for reinstatement of Rights Laws’’ trade with a country that has Notice is hereby given, pursuant to This meeting is available to the public experienced an HPAI H5N1 outbreak,1 the provisions of the rules and through the following toll-free call-in our evaluation concludes that DFCSAH regulations of the U.S. Commission on number: (866) 364–7584, conference call was able to effectively control and Civil Rights (Commission), and the access code number 11616548. Any eradicate HPAI H5N1 in the domestic Federal Advisory Committee Act interested member of the public may poultry population and that the (FACA), that a planning and briefing call this number and listen to the Hungarian authorities have adequate meeting of the Minnesota Advisory meeting. Callers can expect to incur control measures in place to rapidly Committee to the Commission will charges for calls they initiate over identify, control, and eradicate the convene at 9 a.m. and adjourn at 12 p.m. wireless lines, and the Commission will disease should it be reintroduced into on June 25, 2009, at Johnson & Condon, not refund any incurred charges. Callers Hungary in either wild birds or P.A., 7401 Metro Boulevard, Edina, will incur no charge for calls they domestic poultry. Minnesota 55439. The purpose of the initiate over land-line connections to We are making the evaluation meeting is to conduct a SAC orientation, the toll-free telephone number. Persons available for public comment. We will hold a briefing on fair housing in with hearing impairments may also consider all comments that we receive Minnesota, and plan future activities. follow the proceedings by first calling on or before the date listed under the the Federal Relay Service at 1–800–977– heading DATES at the beginning of this Members of the public are entitled to 8339 and providing the Service with the notice. submit written comments. The address conference call number and contact If, after the close of the comment is 55 W. Monroe St., Suite 410, Chicago, name Farella E. Robinson. IL 60603. Persons wishing to e-mail period, APHIS can identify no To ensure that the Commission their comments, or to present their additional risk factors that would secures an appropriate number of lines comments verbally at the meeting, or indicate that domestic poultry in Ba´cs- for the public, persons are asked to who desire additional information Kiskun and Csongra´d Counties in register by contacting Corrine Sanders of should contact Carolyn Allen, Hungary continue to be affected with the Central Regional Office and TTY/ Administrative Assistant at (312) 353– HPAI H5N1, we would conclude that TDD telephone number, by 4 p.m. on 8311 or by e-mail: [email protected]. the importation of live birds, poultry June 19, 2009. carcasses, parts of carcasses, and eggs Hearing-impaired persons who will Members of the public are entitled to (other than hatching eggs) of poultry, attend the meeting and require the submit written comments. The address game birds, or other birds from Hungary services of a sign language interpreter is U.S. Commission on Civil Rights, 400 presents a low risk of introducing HPAI should contact the Regional Office at State Avenue, Suite 908, Kansas City, H5N1 into the United States. least ten (10) working days before the Kansas 66101. Comments may be e- The evaluation may be viewed on the scheduled date of the meeting. mailed to [email protected]. Records Regulations.gov Web site or in our Records generated from this meeting generated by this meeting may be reading room (see ADDRESSES above for may be inspected and reproduced at the inspected and reproduced at the Central a link to Regulations.gov and Midwestern Regional Office, as they Regional Office, as they become information on the location and hours of become available, both before and after available, both before and after the the reading room). You may request the meeting. Persons interested in the meeting. Persons interested in the work paper copies of the evaluation by calling work of this advisory committee are of this advisory committee are advised or writing to the person listed under FOR advised to go to the Commission’s Web to go to the Commission’s Web site, site, http://www.usccr.gov, or to contact http://www.usccr.gov, or to contact the 1 OIE (2008). Risk Analysis. In Terrestrial Animal Health Code, 17th edition. Paris, World the Midwestern Regional Office at the Central Regional Office at the above e- Organization for Animal Health: Chapter 2.2 on above e-mail or street address. mail or street address. Import Risk Analysis; Chapter 10.4 on Avian Influenza. To view the document on the Internet, The meeting will be conducted The meeting will be conducted go to http://www.oie.int/emg/normes/mcode/A- pursuant to the rules and regulations of pursuant to the rules and regulations of summry.htm?e1d11. the Commission and FACA. the Commission and FACA.

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Dated in Washington, DC, June 9, 2009. use by the Council. Amounts received 4. Recognize the importance of island Christopher Byrnes, by the Secretary attributable to fines and cultures and traditional fishing practices Chief, Regional Programs Coordination Unit. penalties imposed under the Magnuson- in managing fishery resources and foster [FR Doc. E9–13931 Filed 6–12–09; 8:45 am] Stevens Act for violations by foreign opportunities for participation; BILLING CODE 6335–01–P vessels occurring within the EEZ off any 5. Promote responsible domestic Pacific Insular Area (other than fisheries development to provided long American Samoa, Guam or the Northern term economic growth and stability and DEPARTMENT OF COMMERCE Mariana Islands) shall also be deposited local food production; into the Fund for use by the Council. 6. Promote regional cooperation to National Oceanic and Atmospheric An MCP must be consistent with the manage domestic and international Administration Council’s fishery management plans, fisheries; and must identify conservation and 7. Encourage development of RIN 0648–XP70 management objectives (including technologies and methods to achieve the most effective level of monitoring, Fisheries in the Western Pacific; criteria for determining when such objectives have been met), and must control and surveillance and to ensure Amended Marine Conservation Plan safety at sea. for Pacific Insular Areas; Western prioritize planned marine conservation Pacific Sustainable Fisheries Fund projects. Although no foreign fishing is contemplated at this time, the Council The amended MCP identifies major AGENCY: National Marine Fisheries developed an MCP for the Pacific task areas that include data collection Service (NMFS), National Oceanic and Insular Areas, here defined as the U.S. and monitoring, fishery management, Atmospheric Administration (NOAA), EEZ around Johnston and Palmyra social economic research and Commerce. Atoll, Kingman Reef and Jarvis, assessment, policy development, protected species conservation, public ACTION: Notice of agency decision. Howland, Baker, and Wake Islands. These areas are sometimes known as the outreach, media activities and products, SUMMARY: NMFS announces approval of Pacific remote island areas. meeting and event participation, workshops, plans and training, an amended marine conservation plan In August 2007, the Council approved infrastructure development, etc. Projects (MCP) for Pacific Insular Areas other an MCP for the Pacific Insular Area and are ranked in order of priority and than American Samoa, Guam, and the recommended its submission to the would aid in fulfilling the Council’s Northern Mariana Islands. Secretary for approval. NMFS, as conservation and management DATES: This agency decision is effective designee of the Secretary, received the objectives. The MCP also outlines a April 11, 2008, through April 10, 2011. MCP on November 6, 2007. That MCP, process by which the Council’s ADDRESSES: Copies of the MCP are dated August 27, 2007, satisfied the Executive Committee could revisit the available from the Western Pacific requirements of Magnuson-Stevens Act project ranking to adapt to changing Fishery Management Council (Council), Section 204(e), and was approved for management needs. 1164 Bishop St., Suite 1400, Honolulu, the three-year period April 11, 2008, This notice announces that NMFS has HI 96813, tel 808–522–8220, fax 808– through April 10, 2011 (73 FR 21111; determined that the amended MCP for 522–8226. April 18, 2008). the Western Pacific Sustainable FOR FURTHER INFORMATION CONTACT: At its 144th meeting in March 2009, Fisheries Fund satisfies the Jarad Makaiau, Sustainable Fisheries, the Council approved amendments to requirements of the Magnuson-Stevens NMFS Pacific Islands Regional Office, the MCP. On April 3, 2009, the Council Act and approves the amended MCP for 808–944–2108. submitted to NMFS the amended MCP, the three-year period April 11, 2008, SUPPLEMENTARY INFORMATION: Under dated March 2009, for approval. The through April 10, 2011. Section 204(e) of the Magnuson-Stevens amended MCP revises the previously- Fishery Conservation and Management approved August 2007 MCP by Dated: June 9, 2009. Act (Magnuson-Stevens Act), the streamlining the descriptions of the Kristen C. Koch, Secretary of State, with the concurrence projects associated with the MCP’s Acting Director, Office of Sustainable of the Secretary of Commerce conservation and management Fisheries, National Marine Fisheries Service. (Secretary) and in consultation with the objectives, and also includes evaluative [FR Doc. E9–14032 Filed 6–12–09; 8:45 am] Council, may negotiate and enter into a criteria for each program or project. BILLING CODE 3510–22–S Pacific Insular Area fishery agreement The amended MCP contains seven (PIAFA) to allow foreign fishing within conservation and management the U.S. Exclusive Economic Zone (EEZ) objectives, listed below. These DEPARTMENT OF COMMERCE adjacent to any Pacific Insular Area objectives are based upon the Council’s National Oceanic and Atmospheric other than American Samoa, Guam or guiding principles and five year Administration the Northern Mariana Islands, which, by Program Plan, and are consistent with definition, does not include the State of the Council’s fishery management plans: RIN 0648–XP74 Hawaii. Before entering into a PIAFA, 1. Support quality research and obtain the Council must develop a three-year the most complete scientific information Incidental Taking of Marine Mammals; Marine Conservation Plan (MCP) available to assess and manage fisheries; Taking of Marine Mammals Incidental providing details on uses for any funds 2. Promote an ecosystem approach in to the Explosive Removal of Offshore collected by the Secretary under the fisheries management, including Structures in the Gulf of Mexico PIAFA. reducing waste in fisheries and AGENCY: National Marine Fisheries The Magnuson-Stevens Act authorizes minimizing impacts on marine habitat Service (NMFS), National Oceanic and that any payments received under a and impacts on protected species; Atmospheric Administration (NOAA), PIAFA, in support of conservation and 3. Conduct education and outreach to Commerce. management objectives in an MCP, shall foster good stewardship principles and ACTION: Notice; issuance of a letter of be deposited into the Western Pacific broad and direct public participation in authorization. Sustainable Fisheries Fund (Fund) for the Council’s decision making process;

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SUMMARY: In accordance with the monitoring and reporting of such taking. Commerce, 14th Street and Constitution Marine Mammal Protection Act Regulations governing the taking Avenue, NW, Washington, DC 20230; (MMPA) and implementing regulations, incidental to EROS were published on telephone: (202) 482–1293 and (202) notification is hereby given that NMFS June 19, 2008 (73 FR 34889), and remain 482–0196, respectively. has issued a one-year Letter of in effect through July 19, 2013. For SUPPLEMENTARY INFORMATION: Authorization (LOA) to take marine detailed information on this action, mammals incidental to the explosive please refer to that Federal Register Background removal of offshore oil and gas notice. The species that applicants may structures (EROS) in the Gulf of Mexico. take in small numbers during EROS On May 5, 2009, the Department of DATES: This authorization is effective activities are bottlenose dolphins Commerce (the ‘‘Department’’) initiated from June 17, 2009 through June 16, (Tursiops truncatus), Atlantic spotted an investigation of certain oil country 2010. dolphins (Stenella frontalis), tubular goods from the People’s Republic of China (‘‘PRC’’). See Certain ADDRESSES: The application and LOA pantropical spotted dolphins (Stenella attenuata), Clymene dolphins (Stenella Oil Country Tubular Goods from the are available for review by writing to P. People’s Republic of China: Initiation of Michael Payne, Chief, Permits, clymene), striped dolphins (Stenella coeruleoalba), spinner dolphins Countervailing Duty Investigation, 74 FR Conservation, and Education Division, 20678 (May 5, 2009). Currently, the Office of Protected Resources, National (Stenella longirostris), rough-toothed dolphins (Steno bredanensis), Risso’s preliminary determination is due no Marine Fisheries Service, 1315 East- later than July 2, 2009. West Highway, Silver Spring, MD dolphins (Grampus griseus), melon- 20910–3235 or by telephoning the headed whales (Peponocephala electra), Postponement of Due Date for contact listed here (see FOR FURTHER short-finned pilot whales (Globicephala Preliminary Determination INFORMATION CONTACT), or online at: macrorhynchus), and sperm whales http://www.nmfs.noaa.gov/pr/permits/ (Physeter macrocephalus). Under section 703(c)(1)(B) of the incidental.htm. Documents cited in this Pursuant to these regulations, NMFS Tariff Act of 1930, as amended (the notice may be viewed, by appointment, has issued an LOA to SPN Resources, ‘‘Act’’), the Department may extend the during regular business hours, at the LLC. Issuance of the LOAs is based on period for reaching a preliminary aforementioned address. a finding made in the preamble to the determination in a countervailing duty FOR FURTHER INFORMATION CONTACT: final rule that the total taking by these investigation until no later than the Howard Goldstein or Ken Hollingshead, activities (with monitoring, mitigation, 130th day after the date on which the Office of Protected Resources, NMFS, and reporting measures) will result in administering authority initiates an 301–713–2289. no more than a negligible impact on the investigation, if the administration affected species or stock(s) of marine determines that the parties are SUPPLEMENTARY INFORMATION: Section mammals and will not have an cooperating and the case is 101(a)(5)(A) of the MMPA (16 U.S.C. unmitigable adverse impact on extraordinarily complicated. The 1361 et seq.) directs the NMFS to allow, subsistence uses. NMFS also finds that Department finds that the instant case is upon request, the incidental, but not extraordinarily complicated by reason of intentional, taking of small numbers of the applicant will meet the the number and complexity of the marine mammals by United States requirements contained in the alleged countervailable subsidy citizens who engage in a specified implementing regulations and LOA, activity (other than commercial fishing) including monitoring, mitigation, and practices, the need to determine the within a specified geographical region, reporting requirements. extent to which particular if certain findings are made by NMFS Dated: June 9, 2009. countervailable subsidies are used by individual manufacturers, producers, and regulations are issued. Under the James H. Lecky, MMPA, the term ‘‘taking’’ means to and exporters, and the number of firms Director, Office of Protected Resources, whose activities must be investigated. harass, hunt, capture, or kill or to National Marine Fisheries Service. attempt to harass, hunt capture, or kill Accordingly, we are fully extending the [FR Doc. E9–14024 Filed 6–12–09; 8:45 am] due date for the preliminary marine mammals. BILLING CODE 3510–22–S Authorization for incidental taking, in determination to no later than 130 days the form of annual LOAs, may be after the day on which the investigation granted by NMFS for periods up to five DEPARTMENT OF COMMERCE was initiated (i.e., September 5, 2009). years if NMFS finds, after notification However, September 5, 2009, falls on a and opportunity for public comment, International Trade Administration Saturday and it is the Department’s long–standing practice to issue a that the taking will have a negligible [C–570–944] impact on the species or stock(s) of determination the next business day when the statutory deadline falls on a marine mammals, and will not have an Certain Oil Country Tubular Goods weekend, federal holiday, or any other unmitigable adverse impact on the from the People’s Republic of China: day when the Department is closed. See availability of the species or stock(s) for Postponement of Preliminary Notice of Clarification: Application of subsistence uses (where relevant). In Determination in the Countervailing ‘‘Next Business Day’’ Rule for addition, NMFS must prescribe Duty Investigation regulations that include permissible Administrative Determination Deadlines methods of taking and other means AGENCY: Import Administration, Pursuant to the Tariff Act of 1930, As effecting the least practicable adverse International Trade Administration, Amended, 70 FR 24533 (May 10, 2005). impact on the species and its habitat Department of Commerce. Accordingly, the deadline for (i.e., mitigation), and on the availability EFFECTIVE DATE: June 15, 2009. completion of the preliminary of the species for subsistence uses, FOR FURTHER INFORMATION CONTACT: determination is now no later than paying particular attention to rookeries, Joseph Shuler or Nancy Decker, AD/ September 8, 2009. mating rounds, and areas of similar CVD Operations, Import This notice is issued and published significance. The regulations also must Administration, International Trade pursuant to section 703(c)(2) of the Act include requirements pertaining to the Administration, U.S. Department of and 19 CFR 351.205(e).

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Dated: June 8, 2009. 2. If approved, the action will result NPA: Alphapointe Association for the Blind, Carole Showers, in authorizing small entities to furnish Kansas City, MO. Contracting Activity: Federal Acquisition Acting Deputy Assistant Secretary For Policy the products and services to the Service, GSA/FSS OFC SUP CTR—Paper and Negotiations. Government. 3. There are no known regulatory Products, New York, NY. [FR Doc. E9–14037 Filed 6–12–09; 8:45 am] Coverage: A-list for the total government BILLING CODE 3510–DS–S alternatives which would accomplish requirement as aggregated by the General the objectives of the Javits-Wagner- Services Administration. O’Day Act (41 U.S.C. 46–48c) in NSN: 7520–00–NIB–2016—Highlighter, COMMITTEE FOR PURCHASE FROM connection with the products and Biodegradable. PEOPLE WHO ARE BLIND OR services proposed for addition to the NPA: West Texas Lighthouse for the Blind, San Angelo, TX. SEVERELY DISABLED Procurement List. Comments on this certification are Contracting Activity: Federal Acquisition invited. Commenters should identify the Service, GSA/FSS OFC SUP CTR—Paper Procurement List; Proposed Additions Products, New York, NY. statement(s) underlying the certification Coverage: A–list for the total government AGENCY: Committee for Purchase From on which they are providing additional requirement as aggregated by the General People Who Are Blind or Severely information. Services Administration. Disabled. End of Certification NSN: 3990–00–NSH–0075—Pallet, Demo, ACTION: Proposed Additions to the 24″ × 48″. Procurement List. The following products and services NPA: Bona Vista Programs, Inc., Kokomo, IN. are proposed for addition to Contracting Activity: Dept Of The Army, SR SUMMARY: The Committee is proposing Procurement List for production by the W39Z STK REC ACCT–CRANE AAP. to add to the Procurement List products nonprofit agencies listed: Coverage: C–List for the total requirement of and services to be furnished by Dept Of The Army, Crane IN. nonprofit agencies employing persons Products NSN: 7220–00–NSH–0007—Mat, Floor; NSN: 7220–00–NSH–0010—Mat, Floor; who are blind or have other severe NSN: 7530–00–NIB–0878—Folder, File; NSN: 7220–00–NSH–0009—Mat, Floor. disabilities. NSN: 7530–00–NIB–0879—Folder, File; NPA: Northeastern Michigan Rehabilitation NSN: 7530–00–NIB–0889—Folder, File; and Opportunity Center (NEMROC), DATES: Comments Must Be Received on NPA: Association for Vision Rehabilitation or Before: 7/13/2009. Alpena, MI. and Employment, Inc., Binghamton, NY; Contracting Activity: Federal Acquisition ADDRESSES: Committee for Purchase Contracting Activity: Federal Acquisition Service, GSA/FAS Southwest Supply From People Who Are Blind or Severely Service, GSA/FSS OFC SUP CTR—Paper Center (QSDAC), Fort Worth, TX. Disabled, Jefferson Plaza 2, Suite 10800, Products, New York, NY. Coverage: B-list for the broad government 1421 Jefferson Davis Highway, Coverage: A-list for the total government requirement as aggregated by General requirement as aggregated by the General Arlington, Virginia, 22202–3259. For Services Administration. Services Administration. NSN: MR 520—3 Pack Holiday Soy Candle. Further Information or To Submit NSN: 7530–00–NIB–0840—Label, Pressure Comments Contact: Lou Bartalot, NPA: Industries for the Blind, Inc., West Sensitive Adhesive; Allis, WI. Telephone: (703) 603–7740, Fax: (703) NSN: 7530–00–NIB–0894—Label, Pressure Contracting Activity: Military Resale-Defense 603–0655, or e-mail Sensitive Adhesive; Commissary Agency. [email protected]. NSN: 7530–00–NIB–0897—Label, Pressure Coverage: C–List for the total requirement of Sensitive Adhesive. Defense Commissary Agency. SUPPLEMENTARY INFORMATION: This Coverage: B-list for the Broad government notice is published pursuant to 41 U.S.C NSN: MR 300—Camelbak Thermos Shippers; requirement as aggregated by General NSN: MR 832—Tomato Saver Shippers. 47(a)(2) and 41 CFR 51–2.3. Its purpose Services Administration. NPA: Winston-Salem Industries for the is to provide interested persons an NSN: 7530–00–NIB–0841—Label, Pressure Blind, Winston-Salem, NC. opportunity to submit comments on the Sensitive Adhesive; Contracting Activity: Military Resale-Defense proposed actions. NSN: 7530–00–NIB–0898—Label, Pressure Commissary Agency. Sensitive Adhesive; Coverage: C–List for the total requirement of Additions NSN: 7530–00–NIB–0896—Label, Pressure Defense Commissary Agency. Sensitive Adhesive; If the Committee approves the NSN: 7530–00–NIB–0892—Label, Pressure Services proposed additions, the entities of the Sensitive Adhesive; Service Type/Location Federal Government identified in this NSN: 7530–00–NIB–0893—Label, Pressure notice for each product or service will Sensitive Adhesive; Custodial Services: U.S. Capitol Building, be required to procure the products and NSN: 7530–00–NIB–0895—Label, Pressure Capitol Visitor Center, 2nd and D Street, services listed below from nonprofit Sensitive Adhesive; SW., Washington DC. agencies employing persons who are NSN: 7530–00–NIB–0899—Label, Pressure NPA: Fedcap Rehabilitation Services, Inc., blind or have other severe disabilities. Sensitive Adhesive; New York, NY. NSN: 7530–00–NIB–0900—Label, Pressure Contracting Activity: Architect of the Capitol, Regulatory Flexibility Act Certification Sensitive Adhesive. Washington, DC. NPA: North Central Sight Services, Inc., Service Type/Location: I certify that the following action will Williamsport, PA. not have a significant impact on a Contracting Activity: Federal Acquisition Grounds Maintenance Service: substantial number of small entities. Service, GSA/FSS OFC SUP CTR—Paper Schofield Barracks, Schofield, HI; The major factors considered for this Products, New York, NY. Helemano Military Reservation, Wahiawa, certification were: Coverage: A-list for the total government HI; 1. If approved, the action will not requirement as aggregated by the General Tripler Army Medical Center, Tripler result in any additional reporting, Services Administration. AMC, HI; Wheeler Army Air Field, Schofield, HI; recordkeeping or other compliance NSN: 7510–00–NIB–0862—Tape, Pressure Sensitive .75X1000 6 rolls per pack; Fort Shafter, HI. requirements for small entities other NSN: 7510–00–NIB–0863—Tape, Pressure NPA: Lanakila Rehabilitation Center, than the small organizations that will Sensitive .75X1000 6 rolls per pack; Honolulu, HI. furnish the products and services to the NSN: 7510–00–NIB–0864—Tape, Pressure Contracting Activity: Dept of the Army, Ft Government. Sensitive .75X1000 10 rolls per pack. Shafter, HI.

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Service Type/Location The donee will be required to repair, and maintain the vessel used as Facility Management: maintain ex-CANON, ex-FORREST a static public display at its own Schofield Barracks, Schofield, HI; SHERMAN, or ex-RANGER as a static expense, in a condition satisfactory to Helemano Military Reservation, Wahiawa, display in a condition that is the Secretary of the Navy, in compliance HI; satisfactory to the Secretary of the Navy. with all Federal, State, and local laws, Tripler Army Medical Center, Tripler The Navy has revised its ship that no expense shall be incurred by the AMC, HI; donation application process, which Wheeler Army Air Field, Schofield, HI; United States Government, and that the Fort Shafter, HI. applies to ex-CANON, ex-FORREST applicant will not seek financing from NPA: Goodwill Contract Services of Hawaii, SHERMAN, and ex-RANGER. Phase I the United States Government; Inc., Honolulu, HI. documentation consists of a Letter of (5) Include a statement that the Contracting Activity: Dept of the Army, Ft Intent and an Executive Summary applicant understands and agrees to Shafter, HI. which must be submitted within sixty take delivery of the vessel in an ‘‘as is/ (60) days of this Federal Register notice. where is’’ condition, and assume all Lou Bartalot, The Navy will provide written costs associated with the vessel’s Director, Compliance. notification to those whose Phase I removal from Navy custody, including, [FR Doc. E9–13885 Filed 6–12–09; 8:45 am] documentation is acceptable to submit but not limited to, towing, insurance, BILLING CODE 6353–01–P Phase II documentation consisting of berthing, restoration, maintenance and Business/Financial and Environmental repair, periodic dry-docking, and, plans, within twelve (12) months of ultimately, ship dismantling in the DEPARTMENT OF DEFENSE such notice. The Navy will provide United States; written notification to those whose (6) Include a statement that the Department of the Navy Phase II documentation is acceptable to applicant will not use the vessel as a static public display other than as Notice of Availability for Donation of submit Phase III documentation stated, or destroy, transfer, or otherwise the Patrol Combatant ex-CANON (PG consisting of Towing, Mooring, dispose of such vessel or any artifacts 90), Destroyer ex-FORREST SHERMAN Maintenance, and Curatorial/Museum without the written approval of the (DD 931), and Aircraft Carrier ex- plans, within six (6) months of such Secretary of the Navy or his designee; RANGER (CV 61) notice. Applicants who fail to meet the minimum requirements at any phase (7) Include a statement that the AGENCY: Department of the Navy, DoD. may be disqualified from participating applicant will agree to indemnify, hold ACTION: Notice. in the next phase of these ship donation harmless, and defend the Government opportunities. from and against all claims, demands, SUMMARY: The Department of the Navy Actions Required: Within sixty (60) actions, liabilities, judgment costs, and (DoN) hereby gives notice of the days of this Federal Register notice, attorney’s fees, arising out of, claimed availability for donation, under the applicants must complete and submit on account of, or in any manner authority of 10 U.S.C. 7306, of the patrol Phase I documentation for ex-CANON, predicated upon personal injury, death, combatant ex-CANON (PG 90), ex-FORREST SHERMAN, or ex- or property damage caused by or destroyer ex-FORREST SHERMAN (DD RANGER, consisting of a Letter of Intent resulting from possession and/or use of 931), both located at Inactive Ships On- and Executive Summary. The minimum the donated property; site Maintenance Office, Philadelphia, requirements are identified herein. (8) If the applicant is not a State, PA, and aircraft carrier ex-RANGER (CV Applicants are advised to take special Commonwealth, or possession of the 61), located at Inactive Ships On-site notice of page length limitations for United States, or a political subdivision Maintenance Office, Bremerton, WA. Phase I documentation. or municipal corporation thereof, or the Availability for donation of these Phase I of the ship donation District of Columbia, the applicant must vessels was previously announced in application process must include the provide a copy of a determination letter Federal Register notices dated August following documentation addressing the by the Internal Revenue Service that the 13, 2002, for ex-CANON (PG 90), following areas: applicant is exempt from tax under the September 11, 2001, and June 18, 2004, a. Letter of Intent: The Letter of Intent Internal Revenue Code, Section for ex-FORREST SHERMAN (DD 931), must include the following: 501(c)(3), or submit evidence that the and March 22, 2004, for ex-RANGER (1) Identify the specific vessel sought applicant has filed the appropriate (CV 61). This notice cancels and for donation (ex-CANON, ex-FORREST documentation in order to obtain tax supersedes Federal Register notices Vol. SHERMAN, or ex-RANGER); exempt status; 67, No. 156, Vol. 66, No. 176, Vol. 69, (2) Include a statement that the vessel (9) If the applicant asserts that it is a No. 117, and Vol. 69, No. 55. will be used as a static public display corporation or an association whose DATES: The deadline for submission of as a museum or memorial without charter or articles of agreement deny it a Letter of Intent and Executive activating any system aboard the vessel the right to operate for profit, the Summary is sixty (60) days from the for the purpose of navigation or applicant must provide a properly date of this notice. movement of the vessel; notarized copy of its charter, a SUPPLEMENTARY INFORMATION: Under the (3) Identify the proposed permanent certificate of incorporation, and a copy authority of 10 U.S.C. 7306, eligible berthing location for the vessel to be of the organization’s by-laws; recipients for the transfer of a vessel for used as a static public display, identify (10) Provide a notarized copy of the donation include: (1) Any State, the current property owner of the resolution or other action of the Commonwealth, or possession of the proposed permanent berthing location, applicant’s governing board authorizing United States or any municipal and provide evidence from the current the person signing the Letter of Intent to corporation or political subdivision property owner of its intent to make the represent the organization and to sign thereof; (2) the District of Columbia; or proposed permanent berthing location on its behalf for the purpose of (3) any not-for-profit or nonprofit entity. available to the applicant; obtaining the vessel; The transfer of a vessel for donation (4) Include a statement that the (11) Provide a signed copy of the under 10 U.S.C. 7306 shall be at no cost applicant understands and agrees that it Assurance of Compliance Form in to the United States Government. will be solely responsible to obtain, compliance with Title VI of the Civil

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Rights Act of 1964. See the Ship use as a museum/memorial or in the donation consideration and proceed Donation web page for the Civil Rights event of bankruptcy or inability to with disposal of the vessel. Compliance (Assurance of Compliance) properly maintain the vessel to be used Note that any future changes to Form located as Appendix D to Ship as a static public display; guidelines, policy, and law will be Donation Program Manual (NAVSEA (6) Financial: Provide a summary of reflected in the guidance published on Instruction 4520.1B), at this link: projected sources of income to support the DoN Ship Donation web page http://teamships.crane.navy.mil/ both the acquisition/start-up costs and located at: http:// Inactiveships/Donation/ the annual operational and support teamships.crane.navy.mil/Inactiveships/ applicationinfo.htm; costs for the vessel used as a static Donation. Guidance and requirements b. Executive Summary: The applicant public display; posted on the Ship Donation Web page shall limit the Executive Summary (7) Environmental: Discuss the shall take precedence over the contents submission to eleven (11) pages total. challenges anticipated in meeting the of the Federal Register notice. The Executive Summary must address environmental requirements regarding Applicants are advised to read and the following: hazardous materials, maintenance of follow the Web page guidance for the (1) Organizational Description: polychlorinated biphenyls (PCB) most current set of ship donation Provide an overview of the applicant’s containing materials, endangered requirements. organizational structure, functional species, dredging disposal, and required For Further Information and components, and names of current key environmental permits from all Submission of Ship Donation leadership and staff positions; cognizant authorities; Applications, Contact: Ms. Elizabeth (2) Market Analysis: Summarize the (8) Mooring: Discuss the approach to Freese of the Naval Sea Systems local and regional market demand for be proposed for the mooring plan for the Command, Navy Inactive Ships Program additional museum/memorial vessel used as a static public display, (PMS 333), telephone number 202–781– attractions. Succinctly define the target including location, design, and mooring 4423. Mailed correspondence should be market. Discuss the available system in accordance with U.S. Coast addressed to: The Columbia Group, demographic information, the existing Guard (USCG) requirements; 1201 M Street SE., Suite 020, competition in the local and regional (9) Towing: Discuss the approach to Washington, DC 20003; marked for Ship area for visitor museum/memorial Donation Project Manager (PMS 333). attractions, visitor attendance numbers be proposed for relocating the vessel for existing area museum/memorial from its current location to the proposed Dated: June 8, 2009. attractions, and projected visitor permanent berth location in A.M. Vallandingham, attendance for the applicant’s proposal; conformance with the Navy Tow Lieutenant Commander, Judge Advocate (3) Marketing and Sales Outreach: Manual and USCG requirements; General’s Corps, U.S. Navy, Federal Register Outline the overarching marketing (10) Maintenance: Discuss the Liaison Officer. strategy for integrating the proposed challenges in restoring and preserving [FR Doc. E9–14043 Filed 6–12–09; 8:45 am] ship museum/memorial into the local for an indefinite period the steel-hulled BILLING CODE 3810–FF–P and regional community, and how the vessel proposed as a ship museum/ applicant plans to penetrate that market. memorial; and Provide an overview of customer and (11) Curatorial/Museum: Discuss the DEPARTMENT OF EDUCATION market analysis, marketing approach to be proposed for display and communications, and sales strategies; interpretation of the vessel used as a Office of Postsecondary Education; (4) Museum/Memorial Services static public display, including Overview Information; Underground Assessment: Discuss the benefits the collection management procedures. Railroad Educational and Cultural proposed ship museum/memorial will The Phase I documentation (Letter of Program; Notice Inviting Applications offer to visitors/customers and the Intent and Executive Summary) must be for New Awards for Fiscal Year (FY) community. Identify challenges submitted to the Navy Inactive Ships 2009 anticipated in establishing a new ship Program in hard copy and electronically Catalog of Federal Domestic Assistance museum/memorial. Cite available data/ on a CD–ROM in either an MS Word (CFDA) Number: 84.345A. evidence regarding the willingness of a document or word searchable PDF defined customer base to pay for the format. The Phase I documentation must Dates: services being offered; be mailed to: The Columbia Group, 1201 Applications Available: June 15, 2009. (5) Funding: Provide a Rough Order of M Street, SE., Suite 020, Washington, Deadline for Transmittal of Magnitude (ROM) cost estimate that the DC 20003; marked for the Ship Donation Applications: July 30, 2009. applicant anticipates will be required to Project Manager (PMS 333). Applicants Deadline for Intergovernmental cover all costs associated with the are discouraged from photocopying, Review: September 28, 2009. acquisition/start-up costs of the cutting and pasting, and generally Full Text of Announcement proposed ship donation transfer, providing information which is easily including mooring, towing, accessible via the internet and/or is I. Funding Opportunity Description environmental surveys and cleanup, already in the public domain. Original Purpose of Program: The purpose of dredging, museum development, content which is specific to the vessel the Underground Railroad Educational maintenance, refurbishment of the being donated is of greatest importance and Cultural (URR) Program is to help vessel to be used as a static public to the evaluators. preserve the Underground Railroad’s display, pier, insurance, legal services, If the DoN does not receive legacy and to help demonstrate how the etc. Separately provide a ROM cost satisfactory Phase I documentation Underground Railroad’s widespread estimate of the annual operational and (Letter of Intent and Executive operations network transformed our support costs of the proposed ship Summary) from any applicant, the DoN Nation. In addition, the URR also museum/memorial. In addition, provide reserves the right to enter into promotes the formation of public- a ROM cost estimate of the applicant’s discussions with all applicants in an private partnerships to help disseminate cost of dismantling the vessel in the effort to achieve at least one acceptable information regarding the Underground United States upon completion of its submission; or remove the vessel from Railroad throughout the United States,

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including lessons to be drawn from the the implementation of a public-private the application package for this history of the Underground Railroad. partnership between one or more State competition. Program Authority: 20 U.S.C. 1153. or local public entities and one or more Page Limit: The application narrative Applicable Regulations: The private entities. This public-private (Part III of the application) is where you, Education Department General partnership must provide the matching the applicant, address the selection Administrative Regulations (EDGAR) in funds from non-Federal sources for the criteria that reviewers use to evaluate 34 CFR parts 74, 75, 77, 79, 80, 82, 84, support of the facility, as described in your application. You must limit the 85, 86, 97, 98 and 99. the preceding section on cost sharing or application narrative to the equivalent Note: The regulations in 34 CFR part 86 matching. of no more than 30 pages, using the apply to institutions of higher education (c) Each grantee must create an following standards: only. endowment to fund any and all • A ‘‘page’’ is 8.5″ x 11″, on one side shortfalls in the costs of the on-going only, with 1″ margins at the top, bottom, II. Award Information facility operations. and both sides. Type of Award: Discretionary grants. (d) Grantees may establish and • Double space (no more than three Estimated Available Funds: maintain a network of satellite centers lines per vertical inch) all text in the $1,945,000. throughout the United States to help application narrative, except titles, Estimated Average Size of Awards: disseminate information regarding the headings, footnotes, quotations, $500,000–$1,000,000 total for up to Underground Railroad, including the references, and captions. Charts, tables, three years. lessons to be drawn from the history of figures and graphs in the application Estimated Number of Awards: 2. the Underground Railroad, if such narrative may be single spaced and will satellite centers raise 80 percent of the count toward the page limit. Note: The Department is not bound by any • estimates in this notice. funds required to establish the satellite Use a font that is either 12 point or centers from non-Federal public and larger, or no smaller than 10 pitch Project Period: Up to 36 months. private sources. (characters per inch). However, you may III. Eligibility Information (e) In addition, grantees must use a 10 point font in charts, tables, establish and maintain the capability to figures, and graphs. 1. Eligible Applicants: Nonprofit • educational organizations that are electronically link the facility with other Use one of the following fonts: established to research, display, local and regional facilities that have Times New Roman, Courier, Courier interpret, and collect artifacts relating to collections and programs that interpret New, or Arial. An application submitted the history of the Underground the history of the Underground in any other font (including Times Railroad, including the lessons to be Railroad, including the lessons to be Roman or Arial Narrow) will not be drawn from such history. drawn from such history. accepted. The page limit does not apply to Part 2. Cost Sharing or Matching: The IV. Application and Submission I, the cover sheet; Part II, the budget Federal Government may provide no Information more than 20 percent of the total funds section, including the narrative budget for any project funded under this 1. Address To Request Application justification; Part IV, the assurances and competition. See 20 U.S.C. 1153(b)(2). Package: You can obtain an application certifications; the table of contents; the Applicants must provide the remaining package via the Internet or from the project abstract; or the appendix. The funding from non-Federal public or Education Publications Center (ED appendix may include only project private entities in an amount equal to or Pubs). To obtain a copy via the Internet, documentation; one-page re´sume´s for greater than four times the amount of use the following address: http://e- key personnel; letters of commitment the grant awarded under this section. grants.ed.gov. To obtain a copy from ED from partners, satellite centers, or All applicants will be required to Pubs, write, fax, or call the following: electronic linkage partners; letters from provide documentation to substantiate Education Publications Center, P.O. Box professionals who will ensure that the their ability to meet the cost sharing 1398, Jessup, MD 20794–1398. applicant creates, designates, or raises requirement. Telephone, toll free: 1–877–433–7827. funds for the required project 3. Other: FAX: (301) 470–1244. If you use a endowment; and bibliographical (a) Each nonprofit educational telecommunications device for the deaf references or citations. organization awarded a grant under this (TDD), call, toll free: 1–877–576–7734. 3. Submission Dates and Times: competition must establish a facility You can contact ED Pubs at its Web Applications Available: June 15, 2009. to— site, also: http://www.ed.gov/pubs/ Deadline for Transmittal of (i) House, display, interpret, and edpubs.html or at its e-mail address: Applications: July 30, 2009. communicate information regarding the [email protected]. Applications for grants under this artifacts and other materials related to If you request an application from ED program must be submitted the history of the Underground Pubs, be sure to identify this program or electronically using the Electronic Grant Railroad, including the lessons to be competition as follows: CFDA number Application System (e-Application) drawn from such history; 84.345A. accessible through the Department’s e- (ii) Maintain such artifacts and Individuals with disabilities can Grants site. Please do not use Grant.gov; materials; obtain a copy of the application package the Department has moved its grant (iii) Make these efforts, as described in an accessible format (e.g., braille, application mechanism to e-Application in paragraph (i), available including large print, audiotape, or computer on e-Grants. For information (including through electronic means, to elementary diskette) by contacting the person or dates and times) about how to submit and secondary schools, institutions of team listed under Accessible Format in your application electronically, or in higher education, and the general section VIII of this notice. paper format by mail or hand delivery public. 2. Content and Form of Application if you qualify for an exception to the (b) Each grantee must demonstrate Submission: Requirements concerning electronic submission requirement, substantial public and private support the content of an application, together please refer to section IV. 6. Other for the operation of the facility through with the forms you must submit, are in Submission Requirements of this notice.

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We do not consider an application Please note the following: (2) The applicant’s Authorizing that does not comply with the deadline • You must complete the electronic Representative must sign this form. requirements. submission of your grant application by (3) Place the PR/Award number in the Individuals with disabilities who 4:30:00 p.m., Washington, DC time, on upper right hand corner of the hard- need an accommodation or auxiliary aid the application deadline date. copy signature page of the SF 424. in connection with the application E–Application will not accept an (4) Fax the signed SF 424 to the process should contact the person listed application for this competition after Application Control Center at (202) under FOR FURTHER INFORMATION 4:30:00 p.m., Washington, DC time, on 245–6272. CONTACT in section VII of this notice. If the application deadline date. • We may request that you provide us the Department provides an Therefore, we strongly recommend that original signatures on other forms at a accommodation or auxiliary aid to an you do not wait until the application later date. individual with a disability in deadline date to begin the application Application Deadline Date Extension connection with the application process. in Case of e-Application Unavailability: process, the individual’s application • The hours of operation of the e- If you are prevented from electronically remains subject to all other Grants Web site are 6:00 a.m. Monday submitting your application on the requirements and limitations in this until 7:00 p.m. Wednesday; and 6:00 application deadline date because notice. a.m. Thursday until 8:00 p.m. Sunday, e-Application is unavailable, we will Deadline for Intergovernmental Washington, DC time. Please note that, grant you an extension of one business Review: September 28, 2009. because of maintenance, the system is day to enable you to transmit your 4. Intergovernmental Review: This unavailable between 8:00 p.m. on application electronically, by mail, or by competition is subject to Executive Sundays and 6:00 a.m. on Mondays, and hand delivery. We will grant this Order 12372 and the regulations in 34 between 7:00 p.m. on Wednesdays and extension if— CFR part 79. Information about 6:00 a.m. on Thursdays, Washington, (1) You are a registered user of Intergovernmental Review of Federal DC time. Any modifications to these e-Application and you have initiated an Programs under Executive Order 12372 hours are posted on the e-Grants Web electronic application for this is in the application package for this site. competition; and competition. • You will not receive additional (2)(a) E-Application is unavailable for 5. Funding Restrictions: We reference point value because you submit your 60 minutes or more between the hours regulations outlining funding application in electronic format, nor of 8:30 a.m. and 3:30 p.m., Washington, restrictions in the Applicable will we penalize you if you qualify for DC time, on the application deadline Regulations section of this notice. an exception to the electronic date; or 6. Other Submission Requirements: submission requirement, as described (b) E-Application is unavailable for Applications for grants under this elsewhere in this section, and submit any period of time between 3:30 p.m. competition must be submitted your application in paper format. and 4:30:00 p.m., Washington, DC time, electronically unless you qualify for an • You must submit all documents on the application deadline date. exception to this requirement in electronically, including all information We must acknowledge and confirm accordance with the instructions in this you typically provide on the following these periods of unavailability before section. forms: The Application for Federal granting you an extension. To request a. Electronic Submission of Assistance (SF 424), the Department of this extension or to confirm our Applications. Education Supplemental Information for acknowledgment of any system Applications for grants under the SF 424, Budget Information—Non- unavailability, you may contact either Underground Railroad Educational and Construction Programs (ED 524), and all (1) the person listed elsewhere in this Cultural Program—CFDA number necessary assurances and certifications. notice under FOR FURTHER INFORMATION 84.345A—must be submitted You must attach any narrative sections CONTACT (see VII. Agency Contact) or (2) electronically using e-Application, of your application as files in a .DOC the e-Grants help desk at 1–888–336– accessible through the Department’s (document), .RTF (rich text), or .PDF 8930. If e-Application is unavailable e-Grants Web site at: http:// (Portable Document) format. If you due to technical problems with the e-grants.ed.gov. upload a file type other than the three system and, therefore, the application We will reject your application if you file types specified in this paragraph or deadline is extended, an e-mail will be submit it in paper format unless, as submit a password protected file, we sent to all registered users who have described elsewhere in this section, you will not review that material. initiated an e-Application. Extensions qualify for one of the exceptions to the • Your electronic application must referred to in this section apply only to electronic submission requirement and comply with any page limit the unavailability of e-Application. submit, no later than two weeks before requirements described in this notice. Exception to Electronic Submission the application deadline date, a written • Prior to submitting your electronic Requirement: You qualify for an statement to the Department that you application, you may wish to print a exception to the electronic submission qualify for one of these exceptions. copy of it for your records. requirement, and may submit your Further information regarding • After you electronically submit application in paper format, if you are calculation of the date that is two weeks your application, you will receive an unable to submit an application through before the application deadline date is automatic acknowledgment that will e-Application because–– provided later in this section under include a PR/Award number (an • You do not have access to the Exception to Electronic Submission identifying number unique to your Internet; or Requirement. application). • You do not have the capacity to While completing your electronic • Within three working days after upload large documents to e- application, you will be entering data submitting your electronic application, Application; and online that will be saved into a fax a signed copy of the SF 424 to the • No later than two weeks before the database. You may not e-mail an Application Control Center after application deadline date (14 calendar electronic copy of a grant application to following these steps: days or, if the fourteenth calendar day us. (1) Print SF 424 from e-Application. before the application deadline date

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falls on a Federal holiday, the next If you qualify for an exception to the If your application is not evaluated or business day following the Federal electronic submission requirement, you not selected for funding, we notify you. holiday), you mail or fax a written (or a courier service) may deliver your 2. Administrative and National Policy statement to the Department, explaining paper application to the Department by Requirements: We identify which of the two grounds for an hand. You must deliver the original and administrative and national policy exception prevents you from using the two copies of your application, by hand, requirements in the application package Internet to submit your application. If on or before the application deadline and reference these and other you mail your written statement to the date, to the Department at the following requirements in the Applicable Department, it must be postmarked no address: U.S. Department of Education, Regulations section of this notice. later than two weeks before the Application Control Center, Attention: We reference the regulations outlining application deadline date. If you fax CFDA Number 84.345A, 550 12th Street, the terms and conditions of an award in your written statement to the SW., Room 7041, Potomac Center Plaza, the Applicable Regulations section of Department, we must receive the faxed Washington, DC 20202–4260. this notice and include these and other statement no later than two weeks The Application Control Center specific conditions in the GAN. The before the application deadline date. accepts hand deliveries daily between GAN also incorporates your approved Address and mail or fax your 8:00 a.m. and 4:30:00 p.m., Washington, application as part of your binding statement to: Claire D. Cornell, U.S. DC time, except Saturdays, Sundays, commitments under the grant. Department of Education, 1990 K Street, and Federal holidays. 3. Reporting: At the end of your NW., room 6145, Washington, DC Note for Mail or Hand Delivery of project period, you must submit a final 20006–8544. FAX: (202) 502–7877. Paper Applications: If you mail or hand performance report, including financial Your paper application must be deliver your application to the information, as directed by the submitted in accordance with the mail Department— Secretary. If you receive a multi-year or hand delivery instructions described (1) You must indicate on the envelope award, you must submit an annual in this notice. and—if not provided by the performance report that provides the b. Submission of Paper Applications Department—in Item 11 of the SF 424 most current performance and financial by Mail. the CFDA number, including suffix expenditure information as specified by If you qualify for an exception to the letter, if any, of the competition under the Secretary in 34 CFR 75.118. The electronic submission requirement, you which you are submitting your Secretary may also require more may mail (through the U.S. Postal application; and frequent performance reports under 34 Service or a commercial carrier) your (2) The Application Control Center CFR 75.720(c). For specific application to the Department. You will mail to you a notification of receipt requirements on reporting, please go to: must mail the original and two copies of your grant application. If you do not http://www.ed.gov/fund/grant/apply/ appforms/appforms.html. of your application, on or before the receive this grant notification within 15 In the annual and final reports, application deadline date, to the business days from the application deadline date, you should call the U.S. applicants must provide documentation Department at the following address: of their efforts to collect, research, U.S. Department of Education, Department of Education Application Control Center at (202) 245–6288. display, and interpret artifacts, digital Application Control Center, Attention: resources, and other materials that (CFDA Number 84.345A), LBJ Basement V. Application Review Information collect, preserve, and disseminate Level 1, 400 Maryland Avenue, SW., information on the Underground Washington, DC 20202–4260. Selection Criteria: The selection criteria for this program are from 34 CFR Railroad’s history, including the lessons You must show proof of mailing to be drawn from such history. If they consisting of one of the following: 75.210 and include: significance (10 points); quality of the project design (40 have created or designated satellite (1) A legibly dated U.S. Postal Service centers, they must provide postmark. points); adequacy of resources (20 points); quality of project personnel (10 documentation of their creation or (2) A legible mail receipt with the designation of satellite centers, an date of mailing stamped by the U.S. points); and quality of the project evaluation (20 points). Additional account of the satellite centers’ Postal Service. activities, and documentation of the (3) A dated shipping label, invoice, or information regarding these criteria is in the application package for this satellite centers’ 4:1 cost share. Grantees receipt from a commercial carrier. must also provide evidence of their (4) Any other proof of mailing competition. In making grant awards for this creation of electronic links to other acceptable to the Secretary of the U.S. program, the Department will consider organizations and facilities that have Department of Education. information concerning the applicant’s collections and programs that interpret If you mail your application through the history of the Underground Railroad the U.S. Postal Service, we do not performance and use of funds from a prior grant in this program, or in any and lessons drawn from such history. accept either of the following as proof Grantees must document their efforts to of mailing: other Department program, and will consider the applicant’s failure to make their resources and efforts (1) A private metered postmark. available through electronic means, to (2) A mail receipt that is not dated by submit an acceptable performance elementary and secondary schools, to the U.S. Postal Service. report for a grant in this or any other institutions of higher education, and to If your application is postmarked after Department program. 34 CFR the general public. Finally, each annual the application deadline date, we will 75.217(d)(3). report must contain the audited not consider your application. VI. Award Administration Information financial statement of the organization Note: The U.S. Postal Service does not 1. Award Notices: If your application for the preceding fiscal year. uniformly provide a dated postmark. Before is successful, we notify your U.S. 4. Performance Measures: Under the relying on this method, you should check Representative and U.S. Senators and Government Performance and Results with your local post office. send you a Grant Award Notification Act (GPRA), the following measure will c. Submission of Paper Applications (GAN). We may notify you informally, be used by the Department in assessing by Hand Delivery. also. the performance of the Underground

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Railroad Educational and Cultural Dated: June 9, 2009. is empowered to conduct the Program: The extent to which funded Daniel T. Madzelan, teleconferences in a fashion that will projects have been institutionalized and Director, Forecasting and Policy Analysis. facilitate the orderly conduct of are able to continue after URR funding [FR Doc. E9–13881 Filed 6–12–09; 8:45 am] business. ends. BILLING CODE 4000–01–P Minutes: The minutes of the If funded, you will be asked to collect teleconferences will be available for and report data on these measures in public review and copying within 60 your project’s annual performance DEPARTMENT OF ENERGY days on the STEAB Web site, http:// report (EDGAR, 34 CFR 75.590). www.steab.org. State Energy Advisory Board (STEAB) Issued at Washington, DC, on June 10, VII. Agency Contact 2009. AGENCY: Department of Energy. Rachel Samuel, FOR FURTHER INFORMATION CONTACT: For ACTION: Notice of Open Teleconferences. Deputy Committee Management Officer. Further Information Contact: Claire D. Cornell, Underground Railroad SUMMARY: This notice announces two [FR Doc. E9–14001 Filed 6–12–09; 8:45 am] Educational and Cultural Program, U.S. teleconferences of the State Energy BILLING CODE 6450–01–P Department of Education, 1990 K Street, Advisory Board (STEAB). The Federal NW., Room 6145, Washington, DC Advisory Committee Act (Pub. L. 92– DEPARTMENT OF ENERGY 20006–8544. Telephone: (202) 502–7609 463; 86 Stat.770) requires that public notice of these teleconferences be or by e-mail: [email protected]. The Hydrogen and Fuel Cell Technical announced in the Federal Register. agency contact person does not mail Advisory Committee (HTAC) application materials and does not DATES: July 22, 2009, at 2–3 p.m. EDT accept applications. and August 26, 2009, at 2–3 p.m. EDT. AGENCY: Department of Energy, Office of If you use a TDD, call the Federal FOR FURTHER INFORMATION CONTACT: Gary Energy Efficiency and Renewable Relay Service, toll free, at 1–800–877– Burch, STEAB Designated Federal Energy. 8339. Officer, Office of Commercialization and ACTION: Notice of open meeting. Project Management, Golden Field VIII. Other Information Office, U.S. Department of Energy, 1617 SUMMARY: The Hydrogen and Fuel Cell Cole Boulevard, Golden, CO 80401, Technical Advisory Committee (HTAC) Accessible Format: Individuals with Telephone 303–275–4801. was established under section 807 of the disabilities can obtain this document Energy Policy Act of 2005 (EPACT), and a copy of the application package in SUPPLEMENTARY INFORMATION: Purpose of the Board: To make Public Law 109–58; 119 Stat. 849. The an accessible format (e.g., braille, large Federal Advisory Committee Act, Public print, audiotape, or computer diskette) recommendations to the Assistant Secretary for the Office of Energy Law 92–463, 86 Stat. 770, requires that on request to the program contact agencies publish notice of an advisory person listed under For Further Efficiency and Renewable Energy regarding goals and objectives, committee meeting in the Federal Information Contact in section VII of Register. To attend the meeting and/or this notice. programmatic and administrative policies, and to otherwise carry out the to make oral statements during the Electronic Access to This Document: Board’s responsibilities as designated in public comment period, please e-mail You can view this document, as well as the State Energy Efficiency Programs [email protected] at least 5 business days all other documents of this Department Improvement Act of 1990 (Pub. L. 101– before the meeting. Please indicate if published in the Federal Register, in 440). you will be attending the meeting, text or Adobe Portable Document Tentative Agenda: Discuss ways whether you want to make an oral Format (PDF) on the Internet at the STEAB can support DOE’s statement on July 15, 2009, and what following site: http://www.ed.gov/news/ implementation of the Economic organization you represent (if fedregister. Recovery Act, support appropriate). To use PDF, you must have Adobe commercialization efforts for both DATES: Wednesday, July 15, 2009, from Acrobat Reader, which is available free energy efficiency and renewable energy, 8:30 a.m.–5:30 p.m. at this site. If you have questions about consider potential collaborative ADDRESSES: Hartford/Windsor Marriott, using PDF, call the U.S. Government activities involving the State Energy 28 Day Hill Road, Windsor, CT 06095. Printing Office (GPO), toll free, at 1– Offices, and update members on other FOR FURTHER INFORMATION CONTACT: 888–293–6498; or in the Washington, routine business matters. [email protected]. DC, area at (202) 512–1530. Public Participation: The SUPPLEMENTARY INFORMATION: Note: The official version of this document teleconferences are open to the public. Members of the public who wish to Purpose of the Meeting: To provide is the document published in the Federal advice, information, and Register. Free Internet access to the official make oral statements pertaining to agenda items, or who simply want to recommendations to the Secretary on edition of the Federal Register and the Code the program authorized by title VIII of of Federal Regulations is available on GPO listen to the teleconferences, should EPACT. Access at: http://www.gpoaccess.gov/nara/ contact Gary Burch at the address or Tentative Agenda: (Subject to change; index.html. telephone number listed above. Requests to make oral comments must updates will be posted on http:// Delegation of Authority: The Secretary be received five days prior to the hydrogen.energy.gov and copies of the of Education has delegated authority to teleconferences; reasonable provision final agenda will available the date of Daniel T. Madzelan, Director, will be made to include requested the meeting). The following items will Forecasting and Policy Analysis for the topic(s) on the agenda. Written be covered on the agenda: Office of Postsecondary Education, to statements may be filed with the Board • DOE Program Update; perform the functions of the Assistant either before or after the • Updates on Key Foreign Government Secretary for Postsecondary Education. teleconferences. The Chair of the Board Programs;

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• Overview of the DOE Fuel Cell Cost b. Project Number: 2188–172. (202) 502–8371. This filing may also be Analysis; c. Date Filed: February 4, 2009, and viewed on the Commission’s Web site at • Activity Updates from Local supplemented on May 4, 2009. http://www.ferc.gov using the Connecticut Businesses; d. Applicant: PPL Montana, LLC. ‘‘eLibrary’’ link. Enter the docket • Electric Vehicle Technology e. Name of Project: Missouri-Madison number excluding the last three digits in Overview; Hydroelectric Project. the docket number field (p–2188) to • Discussion on the Appropriate Role of f. Location: The project is located access the document. You may also the Government in Hydrogen and along the Missouri and Madison Rivers register online at http://www.ferc.gov/ Fuel Cell RD&D; in Gallatin, Madison, Lewis and Clark, docs-filing/esubscription.asp to be • 2009 HTAC Report Planning; and Cascade Counties, Montana. The notified via e-mail of new filings and • Open Discussion. proposed action would be located at the issuances related to this or other Public Participation: In keeping with Gates of the Mountains Lakeshore pending projects. For assistance, call 1– procedures, members of the public are Homes Subdivision in American Bar 866–208–3372 or e-mail welcome to observe the business of the area of the project’s Holter Development [email protected], for TTY, meeting of HTAC and to make oral in Lewis and Clark County. The project call (202) 502–8659. A copy is also statements during the specified period occupies Federal lands administered by available for inspection and for public comment. The public the Bureau of Land Management and the reproduction at the address in item (h) comment period will take place between U.S. Forest Service. above. 8:30 a.m. and 9 a.m. on July 15, 2009. g. Filed Pursuant to: Federal Power m. Individuals desiring to be included To attend the meeting and/or to make Act, 16 U.S.C. 791 (a) 825(r) and 799 on the Commission’s mailing list should oral statements regarding any of the and 801. so indicate by writing to the Secretary h. Applicant Contact: Mr. Jon items on the agenda, e-mail of the Commission. Jourdonnais, PPL Montana, LLC, 45 [email protected] at least 5 business days Basin Creek Road, Butte, MT 59701. n. Comments, Protests, or Motions to before the meeting. Please indicate if Telephone: (406) 533–3443. E-mail: Intervene: Anyone may submit you will be attending the meeting, [email protected]. comments, a protest, or a motion to whether you want to make an oral i. FERC Contact: Any questions on intervene in accordance with the statement, and what organization you this notice should be addressed to requirements of Rules of Practice and represent (if appropriate). Members of Christopher Yeakel at (202) 502–8132, Procedure, 18 CFR 385.210, .211, .214. the public will be heard in the order in or e-mail address: In determining the appropriate action to which they sign up for the public [email protected]. take, the Commission will consider all comment period. Oral comments should j. Deadline for filing comments and or protests or other comments filed, but be limited to two minutes in length. motions: July 9, 2009. only those who file a motion to Reasonable provision will be made to k. Description of Request: PPL intervene in accordance with the include the scheduled oral statements Montana, LLC proposes to permit the Commission’s Rules may become a on the agenda. The chair of the American Bar Landowner’s Association party to the proceeding. Any comments, committee will make every effort to hear to construct 23 seasonal boat docks, a protests, or motions to intervene must the views of all interested parties and to boat launch, access roads, and parking be received on or before the specified facilitate the orderly conduct of areas in the American Bar area of the comment date for the particular business. If you would like to file a project’s Holter Development. The application. written statement with the committee, facilities would serve an adjoining o. Filing and Service of Responsive you may do so either by submitting a residential subdivision. The proposed Documents: Any filings must bear in all hard copy at the meeting or by boat docks would be removable floating capital letters the title ‘‘COMMENTS’’, submitting an electronic copy to docks that would not extend farther ‘‘RECOMMENDATIONS FOR TERMS [email protected]. than 30 feet from the shoreline unless AND CONDITIONS’’, ‘‘PROTEST’’, OR Minutes: The minutes of the meeting necessary to reach water ten feet in ‘‘MOTION TO INTERVENE’’, as will be available for public review at depth. The docks would be arranged applicable, and the Project Number of http://hydrogen.energy.gov. into four clusters along the shoreline; the particular application to which the Issued at Washington, DC on June 10, 2009. they would be 100 feet or less from each filing refers (p–2188–172). All Rachel Samuel, other and each cluster would occupy no documents (original and eight copies) Deputy Committee Management Officer. more than 750 feet of shoreline. The should be filed with: Kimberly D. Bose, [FR Doc. E9–14002 Filed 6–12–09; 8:45 am] proposed boat ramp would be Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., BILLING CODE 6450–01–P comprised of concrete and would be 12 feet wide and 26 feet long, and would Washington DC 20426. A copy of any include a courtesy dock 35 feet long and motion to intervene must also be served DEPARTMENT OF ENERGY 4 feet wide. One access road would lead upon each representative of the to a gravel parking lot at each location. Applicant specified in the particular Federal Energy Regulatory The licensee consulted with the U.S. application. Commission Bureau of Land Management (BLM), p. Agency Comments: Federal, State, and local agencies are invited to file [Project No. 2188–172] U.S. Forest Service (Forest Service), Montana Department of Fish, Wildlife comments on the described application. PPL Montana, LLC; Notice of and Parks (FWP) in developing the A copy of the application may be Application for Amendment of License application. obtained by agencies directly from the and Soliciting Comments, Motions To l. Locations of the Application: A Applicant. If an agency does not file Intervene, and Protests copy of the application is available for comments within the time specified for inspection and reproduction at the filing comments, it will be presumed to June 9, 2009. Commission’s Public Reference Room, have no comments. One copy of an a. Type of Application: Non-project located at 888 First Street, NE., Room agency’s comments must also be sent to use of project lands and waters. 2A, Washington, DC 20426, or by calling the Applicant’s representatives.

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q. Comments, protests and powerhouse; (3) a new single turbine/ DEPARTMENT OF ENERGY interventions may be filed electronically generator unit with an installed capacity via the Internet in lieu of paper. See, 18 of 50 kW; (4) a new 10-foot-long, 10- Federal Energy Regulatory CFR 385.2001(a)(1)(iii) and the foot-wide concrete building to house Commission instructions on the Commission’s Web additional controls and equipment; (5) [Docket No. CP06–446–003] site at http://www.ferc.gov under the ‘‘e- an existing 650-foot-long, 4.5-foot- Filing’’ link. diameter outfall pipe discharging flows Gulf South Pipeline Company, LP; Kimberly D. Bose, into the Columbia River; (6) a new 100- Notice of Application Secretary. foot-long, 12.47-kilovolt transmission June 8, 2009. [FR Doc. E9–14029 Filed 6–12–09; 8:45 am] line extending from the powerhouse to Take notice that on May 26, 2009, BILLING CODE 6717–01–P a proposed intertie with a Portland Gulf South Pipeline Company, LP (Gulf General Electric power line; and (7) South), filed with the Federal Energy appurtenant facilities. The plant and Regulatory Commission (Commission) DEPARTMENT OF ENERGY portions of the outfall that are not an application under section 7(c) of the directly affected by the project are not Natural Gas Act (NGA) seeking Federal Energy Regulatory included as project features. The authorization to amend its existing Commission proposed project would generate about certificate to reduce to the maximum [Project No. 13466–000] 413 megawatt-hours annually. certificated capacity on the East Texas Applicant Contact: Michael Nacrelli, to Mississippi Expansion Project City of Gresham, OR; Notice of facilities to reflect refined flow Department of Environmental Services, Preliminary Permit Application characteristics after a year of operational City of Gresham, Oregon, 1333 NW. Accepted for Filing and Soliciting experience, all as more fully described Comments, Motions To Intervene, and Eastman Parkway, Gresham, OR 97030; in the application. Competing Applications phone: (503) 661–3000. This filing may be also viewed on the FERC Contact: Jennifer Harper, (202) Web at http://www.ferc.gov using the June 9, 2009. 502–6136. ‘‘eLibrary’’ link. Enter the docket On May 15, 2009, the City of Gresham Deadline for filing comments, motions number excluding the last three digits in (permittee) filed an application for a the docket number field to access the to intervene, competing applications three-year preliminary permit under document. For assistance, call (866) Section 4(f) of the Federal Power Act (without notices of intent), or notices of 1 208–3676 or TTY, (202) 502–8659. (FPA) to study the feasibility of the intent to file competing applications: 60 Pursuant to section 157.9 of the proposed 50-kilowatt (kW) City of days from the issuance of this notice. Commission’s rules, 18 CFR 157.9, Gresham Wastewater Treatment Plant Comments, motions to intervene, within 90 days of this Notice the Outfall Hydroelectric Project No. 13466. notices of intent, and competing Commission staff will either: complete The project would be located in applications may be filed electronically its environmental assessment (EA) and Multnomah County, Oregon. The via the Internet. See 18 CFR place it into the Commission’s public existing City of Gresham Wastewater 385.2001(a)(1)(iii) and the instructions record (eLibrary) for this proceeding; or Treatment Plant (plant) and outfall is on the Commission’s Web site under the issue a Notice of Schedule for owned by the permittee. The sole ‘‘e-Filing’’ link located at http:// Environmental Review. If a Notice of purpose of a preliminary permit, if www.ferc.gov/docs-filing/efiling.asp. If Schedule for Environmental Review is issued, is to grant the permit holder unable to be filed electronically, issued, it will indicate, among other priority to file a license application documents may be paper-filed. To milestones, the anticipated date for the during the permit term. A preliminary paper-file, an original and eight copies Commission staff’s issuance of the final permit does not authorize the permit environmental impact statement (FEIS) holder to perform any land disturbing should be mailed to: Kimberly D. Bose, Secretary, Federal Energy Regulatory or EA for this proposal. The filing of the activities or otherwise enter upon lands EA in the Commission’s public record or waters owned by others without the Commission, 888 First Street, NE., Washington, DC 20426. For more for this proceeding or the issuance of a owners’ express permission. Notice of Schedule for Environmental Under current operating conditions, information on how to submit these Review will serve to notify Federal and treated wastewater (effluent) from the types of filings please go to the State agencies of the timing for the plant is discharged into three parallel Commission’s Web site located at http: completion of all necessary reviews, and outfall pipes. These three pipes combine //www.ferc.gov/filing-comments.asp. the subsequent need to complete all into a single pipeline before discharging More information about this project, the effluent into the Columbia River. Federal authorizations within 90 days of including a copy of the application, can the date of issuance of the Commission Under the permittee’s proposal, effluent be viewed or printed on the ‘‘eLibrary’’ in one of the existing three parallel staff’s FEIS or EA. link of Commission’s Web site at http: Any questions regarding this pipes would flow into a powerhouse to //www.ferc.gov/docs-filing/elibrary.asp. application should be directed to: J. generate electricity before returning to Enter the docket number (P–13466) in Kyle Stephens, Vice President of the existing pipeline system. The project the docket number field to access the Regulatory Affairs, Boardwalk Pipeline would consist of: (1) An existing 3,650- document. For assistance, call toll-free Partners, LP, 9 Greenway Plaza, Suite foot-long, 4-foot-diameter outfall pipe 1–866–208–3372. 2800, Houston, Texas 77046, at 713– directing effluent from the plant to the 479–8033 or fax at 713–479–1846. There powerhouse and from the powerhouse Kimberly D. Bose, are two ways to become involved in the to the final outfall pipe; (2) a new 12- Secretary. Commission’s review of this project. foot-high, 16-foot-long concrete [FR Doc. E9–14028 Filed 6–12–09; 8:45 am] First, any person wishing to obtain legal BILLING CODE 6717–01–P 1 16 U.S.C. 797(f). Three years is the maximum status by becoming a party to the term for a preliminary permit. See FPA Section 5, proceedings for this project should, 16 U.S.C. 798. before the comment date of this notice,

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file with the Federal Energy Regulatory a. Application Type: Non-Project Use located at 888 First Street, NE., Room Commission, 888 First Street, NE., of Public Lands and Waters. 2A, Washington, DC 20426, or by calling Washington, DC 20426, a motion to b. Project No: 349–164. (202) 502–8371. This filing may also be intervene in accordance with the c. Date Filed: May 20, 2009. viewed on the Commission’s Web site at requirements of the Commission’s Rules d. Applicant: Alabama Power http://www.ferc.gov using the of Practice and Procedure (18 CFR Company. ‘‘eLibrary’’ link. Enter the docket 385.214 or 385.211) and the Regulations e. Name of Project: Martin Dam number excluding the last three digits in under the NGA (18 CFR 157.10). A Project. the docket number field to access the person obtaining party status will be f. Location: Lake Martin, Elmore document. You may also register online placed on the service list maintained by County, Alabama. at http://www.ferc.gov/docs-filing/ the Secretary of the Commission and g. Filed Pursuant to: Federal Power esubscription.asp to be notified via e- will receive copies of all documents Act, 16 U.S.C. 791a–825r. mail of new filings and issuances filed by the applicant and by all other h. Applicant Contact: Mr. Ryan related to this or other pending projects. parties. A party must submit 14 copies Robinson, Special Projects Manager, For assistance, call 1–866–208–3676 or of filings made with the Commission Russell Lands, Inc., 2544 Willow Point e-mail [email protected], and must mail a copy to the applicant Road, Alexander City, Alabama 35010, for TTY, call (202) 502–8659. A copy is and to every other party in the (256) 496–2188. also available for inspection and i. FERC Contact: Jaime Blakesley, proceeding. Only parties to the reproduction at the address in item (h) Telephone 312–596–4441, and e-mail: proceeding can ask for court review of above. [email protected]. m. Individuals desiring to be included Commission orders in the proceeding. j. Deadline for filing comments, However, a person does not have to on the Commission’s mailing list should motions to intervene, and protest: July intervene in order to have comments so indicate by writing to the Secretary 8, 2009. considered. The second way to of the Commission. All documents (original and eight n. Comments, Protests, or Motions to participate is by filing with the copies) should be filed with: Secretary, Secretary of the Commission, as soon as Intervene: Anyone may submit Federal Energy Regulatory Commission, comments, a protest, or a motion to possible, an original and two copies of 888 First Street, NE., Washington, DC comments in support of or in opposition intervene in accordance with the 20426. requirements of Rules of Practice and to this project. The Commission will The Commission’s Rules of Practice consider these comments in Procedure, 18 CFR 385.210, .211, .214. and Procedure require all interveners In determining the appropriate action to determining the appropriate action to be filing documents with the Commission taken, but the filing of a comment alone take, the Commission will consider all to serve a copy of that document on protests or other comments filed, but will not serve to make the filer a party each person whose name appears on the to the proceeding. The Commission’s only those who file a motion to official service list for the project. intervene in accordance with the rules require that persons filing Further, if an intervener files comments comments in opposition to the project Commission’s Rules may become a or documents with the Commission party to the proceeding. Any comments, provide copies of their protests only to relating to the merits of an issue that the party or parties directly involved in protests, or motions to intervene must may affect the responsibilities of a be received on or before the specified the protest. particular resource agency, they must Comments, protests and interventions comment date for the particular also serve a copy of the document on application. may be filed electronically via the that resource agency. A copy of any Internet in lieu of paper. See, 18 CFR o. Any filings must bear in all capital motion to intervene must also be served letters the title ‘‘COMMENTS’’, 385.2001(a)(1)(iii) and the instructions upon each representative of the on the Commission’s Web site under the ‘‘PROTEST’’, or ‘‘MOTION TO Applicant specified in the particular INTERVENE’’, as applicable, and the ‘‘e-Filing’’ link. application. Comment Date: June 29, 2009. Project Number of the particular k. Description of Request: Alabama application to which the filing refers. Kimberly D. Bose, Power Company requests permission to p. Agency Comments: Federal, State, Secretary. allow specific additions and and local agencies are invited to file [FR Doc. E9–13965 Filed 6–12–09; 8:45 am] modifications to Ridge Marina, an comments on the described application. existing commercial marina located on BILLING CODE 6717–01–P A copy of the application may be Lake Martin and leased to Russell obtained by agencies directly from the Lands, Inc. The proposed facilities and Applicant. If an agency does not file DEPARTMENT OF ENERGY modifications include: 28 additional comments within the time specified for boat slips at existing courtesy docks, 4 filing comments, it will be presumed to Federal Energy Regulatory floating boat slips at the existing fuel have no comments. One copy of an Commission dock, 64 floating PWC docking locations agency’s comments must also be sent to along an existing boathouse walkway, 1 [Project No. 349–164] the Applicant’s representatives. additional forklift launch/ramp, and 3 q. Comments, protests and Alabama Power Company of Elmore new breakwater sections totaling 750 interventions may be filed electronically County, AL; Notice of Application for linear feet. None of the proposed via the Internet in lieu of paper. See, 18 Amendment of License and Soliciting facilities require excavation or fill work. CFR 385.2001(a)(1)(iii) and the Comments, Motions To Intervene, and The licensee consulted with the U.S. instructions on the Commission’s Web Protests Fish and Wildlife Service, and site at http://www.ferc.gov under the appropriate state and local agencies on ‘‘e-Filing’’ link. June 8, 2009. the proposal. Take notice that the following l. Locations of the Application: A Kimberly D. Bose, hydroelectric application has been filed copy of the application is available for Secretary. with the Commission and is available inspection and reproduction at the [FR Doc. E9–13963 Filed 6–12–09; 8:45 am] for public inspection: Commission’s Public Reference Room, BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY will consist of the following facilities: have no comments. One copy of an three cluster docks with a total of thirty- agency’s comments must also be sent to Federal Energy Regulatory two boat slips, a small ship’s store with the Applicant’s representatives. Commission restrooms, a portable pump out facility, q. Comments, protests and [Project No. 2232–568] picnic tables, a sand volleyball court, interventions may be filed electronically and a gazebo. Tega City also proposes to via the Internet in lieu of paper. See 18 Duke Energy Carolinas, LLC of York stabilize 305 linear feet of shoreline. CFR 385.2001(a)(1)(iii) and the County, SC; Notice of Application for The licensee consulted with the U.S. instructions on the Commission’s Web Amendment of License and Soliciting Army Corps of Engineers, U.S. Fish and site at http://www.ferc.gov Comments, Motions to Intervene, and Wildlife Service, and appropriate State under the ‘‘e-Filing’’ link. Protests and local agencies on the proposal. l. Locations of the Application: A Kimberly D. Bose, June 8, 2009. copy of the application is available for Secretary. Take notice that the following inspection and reproduction at the [FR Doc. E9–13962 Filed 6–12–09; 8:45 am] hydroelectric application has been filed Commission’s Public Reference Room, BILLING CODE 6717–01–P with the Commission and is available located at 888 First Street, NE., Room for public inspection: 2A, Washington, DC 20426, or by calling a. Application Type: Non-Project Use (202) 502–8371. This filing may also be DEPARTMENT OF ENERGY of Public Lands and Waters. viewed on the Commission’s Web site at b. Project No: 2232–568. http://www.ferc.gov using the Federal Energy Regulatory c. Date Filed: May 15, 2009. ‘‘eLibrary’’ link. Enter the project Commission d. Applicant: Duke Energy Carolinas, number excluding the last three digits in LLC. the docket number field to access the [Docket No. CP09–420–000] e. Name of Project: Catawba-Wateree document. You may also register online Project. at http://www.ferc.gov/docs-filing/ Gulf South Pipeline Company, LP; f. Location: Lake Wylie, York County, esubscription.asp to be notified via Notice of Application South Carolina. e-mail of new filings and issuances June 8, 2009. g. Filed Pursuant to: Federal Power related to this or other pending projects. Take notice that on May 22, 2009, Act, 16 U.S.C. 791a–825r. For assistance, call 1–866–208–3676 or Gulf South Pipeline Company, LP (Gulf h. Applicant Contact: Mr. Kelvin K. e-mail [email protected]; Reagan, Duke Energy Carolinas, Senior for TTY, call (202) 502–8659. A copy is South), filed with the Federal Energy Lake Services Representative, P.O. Box also available for inspection and Regulatory Commission (Commission) 1006, Charlotte, NC 28201–1006, (704) reproduction at the address in item (h) an application under section 7(c) of the 382–9386. above. Natural Gas Act (NGA) seeking: (i) i. FERC Contact: Jaime Blakesley, m. Individuals desiring to be included authorization to construct, install, own, Telephone 312–596–4441, and e-mail: on the Commission’s mailing list should operate and maintain three new [email protected]. so indicate by writing to the Secretary compressor units and yard and station j. Deadline for filing comments, of the Commission. piping, including appurtenant and motions to intervene, and protest: July n. Comments, Protests, or Motions to auxiliary facilities, at two existing Gulf 8, 2009. Intervene: Anyone may submit South compressor stations in the State All documents (original and eight comments, a protest, or a motion to of Louisiana—the Hall Summit copies) should be filed with: Secretary, intervene in accordance with the Compressor Station, Bienville Parish, Federal Energy Regulatory Commission, requirements of Rules of Practice and Louisiana, where two new turbine 888 First Street, NE., Washington, DC Procedure, 18 CFR 385.210, .211, .214. compressor units totaling 32,913 20426. In determining the appropriate action to horsepower (HP) are proposed, and at The Commission’s Rules of Practice take, the Commission will consider all the Tallulah Compressor Station, and Procedure require all interveners protests or other comments filed, but Madison Parish, Louisiana, where one filing documents with the Commission only those who file a motion to new 17,558 hp turbine compressor unit to serve a copy of that document on intervene in accordance with the is proposed, and (ii) a predetermination each person whose name appears on the Commission’s Rules may become a that Gulf South may charge incremental official service list for the project. party to the proceeding. Any comments, rates for the capacity created by the Further, if an intervener files comments protests, or motions to intervene must compression upgrades, all as more fully or documents with the Commission be received on or before the specified described in the application. relating to the merits of an issue that comment date for the particular This filing may be also viewed on the may affect the responsibilities of a application. Web at http://www.ferc.gov using the particular resource agency, they must o. Any filings must bear in all capital ‘‘eLibrary’’ link. Enter the docket also serve a copy of the document on letters the title ‘‘COMMENTS’’, number excluding the last three digits in that resource agency. A copy of any ‘‘PROTEST’’, or ‘‘MOTION TO the docket number field to access the motion to intervene must also be served INTERVENE’’, as applicable, and the document. For assistance, call (866) upon each representative of the Project Number of the particular 208–3676 or TTY, (202) 502–8659. Applicant specified in the particular application to which the filing refers. Pursuant to section 157.9 of the application. p. Agency Comments: Federal, State, Commission’s rules, 18 CFR 157.9, k. Description of Request: Duke and local agencies are invited to file within 90 days of this Notice the Energy Carolinas, LLC requests comments on the described application. Commission staff will either: Complete Commission approval to lease to the A copy of the application may be its environmental assessment (EA) and City of Tega Cay (Tega Cay) 0.891 acres obtained by agencies directly from the place it into the Commission’s public of project lands at the Catawba-Wateree Applicant. If an agency does not file record (eLibrary) for this proceeding; or Project, for a commercial marina on comments within the time specified for issue a Notice of Schedule for Lake Wylie. The commercial marina filing comments, it will be presumed to Environmental Review. If a Notice of

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Schedule for Environmental Review is Internet in lieu of paper. See, 18 CFR horsepower compressor station, issued, it will indicate, among other 385.2001(a)(1)(iii) and the instructions leaching facilities, and raw water wells. milestones, the anticipated date for the on the Commission’s Web site under the Any questions concerning this Commission staff’s issuance of the final ‘‘e-Filing’’ link. application may be directed to David environmental impact statement (FEIS) Comment Date: June 29, 2009. Hayden, Sr. Vice President and Chief or EA for this proposal. The filing of the Operating Officer, Perryville Gas EA in the Commission’s public record Kimberly D. Bose, Storage, LLC, Three Riverway, Suite for this proceeding or the issuance of a Secretary. 1350, Houston, Texas 77056, at (713) Notice of Schedule for Environmental [FR Doc. E9–13960 Filed 6–12–09; 8:45 am] 350–2500. Review will serve to notify federal and BILLING CODE 6717–01–P Pursuant to section 157.9 of the state agencies of the timing for the Commission’s rules, 18 CFR 157.9, completion of all necessary reviews, and within 90 days of this Notice the the subsequent need to complete all DEPARTMENT OF ENERGY Commission staff will either: complete federal authorizations within 90 days of its environmental assessment (EA) and Federal Energy Regulatory the date of issuance of the Commission place it into the Commission’s public Commission staff’s FEIS or EA. record (eLibrary) for this proceeding; or Any questions regarding this issue a Notice of Schedule for application should be directed to: J. [Docket No. CP09–418–000] Environmental Review. If a Notice of Kyle Stephens, Vice President of Schedule for Environmental Review is Regulatory Affairs, Boardwalk Pipeline Perryville Gas Storage, LLC; Notice of issued, it will indicate, among other Partners, LP, 9 Greenway Plaza, Suite Application milestones, the anticipated date for the Commission staff’s issuance of the final 2800, Houston, Texas 77046, at 713– June 9, 2009. 479–8033 or fax at 713–479–1846. environmental impact statement (FEIS) There are two ways to become Take notice that on May 26, 2009, or EA for this proposal. The filing of the involved in the Commission’s review of Perryville Gas Storage, LLC (Perryville), EA in the Commission’s public record this project. First, any person wishing to Three Riverway, Suite 1350, Houston, for this proceeding or the issuance of a obtain legal status by becoming a party Texas 77056, filed in the above Notice of Schedule for Environmental to the proceedings for this project referenced docket an application Review will serve to notify federal and should, before the comment date of this pursuant to section 7(c) of the Natural state agencies of the timing for the notice, file with the Federal Energy Gas Act (NGA), for an order granting a completion of all necessary reviews, and Regulatory Commission, 888 First certificate of public convenience to the subsequent need to complete all Street, NE., Washington, DC 20426, a construct, own, and operate a new salt federal authorizations within 90 days of motion to intervene in accordance with dome natural gas storage facility in two the date of issuance of the Commission the requirements of the Commission’s caverns and related facilities to be staff’s FEIS or EA. Rules of Practice and Procedure (18 CFR located in Franklin and Richland There are two ways to become 385.214 or 385.211) and the Regulations Parishes, Louisiana. Perryville is involved in the Commission’s review of under the NGA (18 CFR 157.10). A requesting blanket certificates under this project. First, any person wishing to person obtaining party status will be Part 284, Subpart G and Part 157, obtain legal status by becoming a party placed on the service list maintained by Subpart F of the Commission’s to the proceedings for this project the Secretary of the Commission and regulations. Perryville also seeks for should, on or before the comment date will receive copies of all documents authorization of market based rates, stated below, file with the Federal filed by the applicant and by all other approval of the pro forma tariff, and Energy Regulatory Commission, 888 parties. A party must submit 14 copies waivers of some of the Commission’s First Street, NE., Washington, DC 20426, of filings made with the Commission regulations, all as more fully set forth in a motion to intervene in accordance and must mail a copy to the applicant the application which is on file with the with the requirements of the and to every other party in the Commission and open to public Commission’s Rules of Practice and proceeding. Only parties to the inspection. The filing may also be Procedure (18 CFR 385.214 or 385.211) proceeding can ask for court review of viewed on the web at http:// and the Regulations under the NGA (18 Commission orders in the proceeding. www.ferc.gov using the ‘‘eLibrary’’ link. CFR 157.10). A person obtaining party However, a person does not have to Enter the docket number excluding the status will be placed on the service list intervene in order to have comments last three digits in the docket number maintained by the Secretary of the considered. The second way to field to access the document. For Commission and will receive copies of participate is by filing with the assistance, please contact FERC Online all documents filed by the applicant and Secretary of the Commission, as soon as Support at FERCOnlineSupport by all other parties. A party must submit possible, an original and two copies of @ferc.gov or toll free at (866) 208–3676, 14 copies of filings made with the comments in support of or in opposition or TTY, contact (202) 502–8659. Commission and must mail a copy to to this project. The Commission will Perryville’s new storage project has the applicant and to every other party in consider these comments in been designed to provide approximately the proceeding. Only parties to the determining the appropriate action to be 15 billion cubic feet (Bcf) of working gas proceeding can ask for court review of taken, but the filing of a comment alone capacity with a maximum injection rate Commission orders in the proceeding. will not serve to make the filer a party of up to 226 million cubic feet per day However, a person does not have to to the proceeding. The Commission’s (MMcf/d) and a maximum withdrawal intervene in order to have comments rules require that persons filing rate of 600 MMcf/d. Additionally, considered. The second way to comments in opposition to the project Perryville intends to construct a total of participate is by filing with the provide copies of their protests only to 14.4 miles of 24- and 36-inch diameter Secretary of the Commission, as soon as the party or parties directly involved in pipeline to deliver the natural gas to possible, an original and two copies of the protest. CenterPoint Energy Gas Transmission comments in support of or in opposition Comments, protests and interventions Company and Columbia Gulf to this project. The Commission will may be filed electronically via the Transmission, as well as one 9,500 consider these comments in

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determining the appropriate action to be DEPARTMENT OF ENERGY intervention or protest must serve a taken, but the filing of a comment alone copy of that document on the Applicant. will not serve to make the filer a party Federal Energy Regulatory Anyone filing an intervention or protest to the proceeding. The Commission’s Commission on or before the intervention or protest rules require that persons filing [Docket No. RP09–756–000] date need not serve motions to intervene comments in opposition to the project or protests on persons other than the provide copies of their protests only to Texas Eastern Transmission, LP; Applicant. the party or parties directly involved in Notice of Filing of Temporary Waiver The Commission encourages the protest. Request electronic submission of protests and interventions in lieu of paper using the Persons who wish to comment only June 8, 2009. ‘‘eFiling’’ link at http://www.ferc.gov. on the environmental review of this Take notice that on June 5, 2009, Persons unable to file electronically project should submit an original and pursuant to Rule 207 of the Rules of should submit an original and 14 copies two copies of their comments to the Practice and Procedure of the Federal of the protest or intervention to the Secretary of the Commission. Energy Regulatory Commission, 18 CFR Federal Energy Regulatory Commission, Environmental commentors will be 385.207(a)(5) (2008), Texas Eastern 888 First Street, NE., Washington, DC placed on the Commission’s Transmission, LP (Texas Eastern) filed a 20426. environmental mailing list, will receive petition for temporary waivers of the This filing is accessible on-line at copies of the environmental documents, Applicable Shrinkage Adjustment http://www.ferc.gov, using the and will be notified of meetings (ASA) fuel percentage and section ‘‘eLibrary’’ link and is available for 15.2(C) of the General Terms and associated with the Commission’s review in the Commission’s Public Conditions (GT&C) of its FERC Gas environmental review process. Reference Room in Washington, DC. Tariff related to service provided on Environmental commentors will not be There is an ‘‘eSubscription’’ link on the Texas Eastern’s Main Pass offshore Web site that enables subscribers to required to serve copies of filed system during a planned maintenance documents on all other parties. receive e-mail notification when a outage on that system next month. document is added to a subscribed However, the non-party commentors Texas Eastern requests any additional will not receive copies of all documents docket(s). For assistance with any FERC waivers of Texas Eastern’s FERC Gas Online service, please e-mail filed by other parties or issued by the Tariff and the Commission’s regulations Commission (except for the mailing of [email protected], or call that are necessary for Texas Eastern to (866) 208–3676 (toll free). For TTY, call environmental documents issued by the implement the proposal described (202) 502–8659. Commission) and will not have the right therein. Comment Date: 5 p.m. Eastern Time Texas Eastern states that these to seek court review of the on Friday, June 12, 2009. Commission’s final order. waivers are necessary to maximize the ability of producers connected to a 25- Kimberly D. Bose, The Commission strongly encourages mile portion of its Main Pass offshore electronic filings of comments, protests Secretary. system located upstream of the and interventions in lieu of paper using [FR Doc. E9–13959 Filed 6–12–09; 8:45 am] proposed work area to continue to BILLING CODE 6717–01–P the ‘‘eFiling’’ link at http:// maintain production during the outage www.ferc.gov. Persons unable to file period. Texas Eastern states that the electronically should submit an original temporary waivers requested herein DEPARTMENT OF ENERGY and 14 copies of the protest or would be effective for a period of intervention to the Federal Energy approximately one month during July Federal Energy Regulatory regulatory Commission, 888 First Street, and August this summer while Texas Commission NE., Washington, DC 20426. Eastern performs the required [Docket No. PR09–8–002] This filing is accessible on-line at maintenance work. http://www.ferc.gov, using the Texas Eastern respectfully requests Washington Gas Light Company; ‘‘eLibrary’’ link and is available for that the Commission expedite action on Notice of Filing review in the Commission’s Public this Petition and grant the waiver June 9, 2009. Reference Room in Washington, DC requested herein by June 19, 2009. In Take notice that on May 29, 2009, There is an ‘‘eSubscription’’ link on the light of this request for expedited action, Texas Eastern requests that the Washington Gas Light Company Web site that enables subscribers to Commission shorten the notice period (Washington Gas) filed a revised Firm receive e-mail notification when a to one week from the date of this filing. Interstate Transportation Service document is added to a subscribed Any person desiring to intervene or to Operating Statement (FITSOS) pursuant docket(s). For assistance with any FERC protest this filing must file in to section 284.123(e) of the Online service, please e-mail accordance with Rules 211 and 214 of Commission’s regulations. Washington [email protected], or call the Commission’s Rules of Practice and Gas states that it is making the revisions (866) 208–3676 (toll free). For TTY, call Procedure (18 CFR 385.211 and in order to update its new transportation (202) 502–8659. 385.214). Protests will be considered by rates for service to Mountaineer Gas Comment Date: 5 p.m. Eastern Time the Commission in determining the Company and to make minor, non- on June 30, 2009. appropriate action to be taken, but will substantive revisions. not serve to make protestants parties to Any person desiring to participate in Kimberly D. Bose, the proceeding. Any person wishing to this proceeding must file a motion to Secretary. become a party must file a notice of intervene or to protest this filing must [FR Doc. E9–14031 Filed 6–12–09; 8:45 am] intervention or motion to intervene, as file in accordance with Rules 211 and BILLING CODE 6717–01–P appropriate. Such notices, motions, or 214 of the Commission’s Rules of protests must be filed on or before the Practice and Procedure (18 CFR 385.211 comment due date. Anyone filing an and 385.214). Protests will be

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considered by the Commission in adjustment, and modifications to its DEPARTMENT OF ENERGY determining the appropriate action to be cash out procedure. In addition, EPNT taken, but will not serve to make states it included a statement of rates Federal Energy Regulatory protestants parties to the proceeding. pursuant to Notice of Effectiveness of Commission Any person wishing to become a party Regulations issued by the Commission [Docket No. RM98–1–000] must file a notice of intervention or on October 28, 2008 Letter Order in motion to intervene, as appropriate. Docket No. RM01–5–000. Records Governing Off-the-Record Such notices, motions, or protests must Communications; Public Notice be filed on or before the date as Any person desiring to participate in indicated below. Anyone filing an this rate proceeding must file a motion June 8, 2009. intervention or protest must serve a to intervene or to protest this filing must This constitutes notice, in accordance copy of that document on the Applicant. file in accordance with Rules 211 and with 18 CFR 385.2201(b), of the receipt Anyone filing an intervention or protest 214 of the Commission’s Rules of of prohibited and exempt off-the-record on or before the intervention or protest Practice and Procedure (18 CFR 385.211 communications. date need not serve motions to intervene and 385.214). Protests will be Order No. 607 (64 FR 51222, or protests on persons other than the considered by the Commission in September 22, 1999) requires Applicant. determining the appropriate action to be Commission decisional employees, who The Commission encourages taken, but will not serve to make make or receive a prohibited or exempt electronic submission of protests and protestants parties to the proceeding. off-the-record communication relevant to the merits of a contested proceeding, interventions in lieu of paper using the Any person wishing to become a party to deliver to the Secretary of the ‘‘eFiling’’ link at http://www.ferc.gov. must file a notice of intervention or Persons unable to file electronically Commission, a copy of the motion to intervene, as appropriate. communication, if written, or a should submit an original and 14 copies Such notices, motions, or protests must summary of the substance of any oral of the protest or intervention to the be filed on or before the date as communication. Federal Energy Regulatory Commission, indicated below. Anyone filing an PROHIBITED communications are 888 First Street, NE., Washington, DC intervention or protest must serve a included in a public, non-decisional file 20426. copy of that document on the Applicant. associated with, but not a part of, the This filing is accessible on-line at Anyone filing an intervention or protest decisional record of the proceeding. http://www.ferc.gov, using the on or before the intervention or protest Unless the Commission determines that ‘‘eLibrary’’ link and is available for date need not serve motions to intervene the prohibited communication and any review in the Commission’s Public or protests on persons other than the responses thereto should become a part Reference Room in Washington, DC. of the decisional record, the prohibited There is an ‘‘eSubscription’’ link on the Applicant. off-the-record communication will not Web site that enables subscribers to The Commission encourages be considered by the Commission in receive e-mail notification when a electronic submission of protests and reaching its decision. Parties to a document is added to a subscribed interventions in lieu of paper using the proceeding may seek the opportunity to docket(s). For assistance with any FERC ‘‘eFiling’’ link at http://www.ferc.gov. respond to any facts or contentions Online service, please e-mail Persons unable to file electronically made in a prohibited off-the-record [email protected], or call should submit an original and 14 copies communication, and may request that (866) 208–3676 (toll free). For TTY, call of the protest or intervention to the the Commission place the prohibited (202) 502–8659. Federal Energy Regulatory Commission, communication and responses thereto Comment Date: 5 p.m. Eastern Time 888 First Street, NE., Washington, DC in the decisional record. The on Tuesday, June 23, 2009. 20426. Commission will grant such a request Kimberly D. Bose, This filing is accessible on-line at only when it determines that fairness so Secretary. http://www.ferc.gov, using the requires. Any person identified below as [FR Doc. E9–14026 Filed 6–12–09; 8:45 am] ‘‘eLibrary’’ link and is available for having made a prohibited off-the-record BILLING CODE 6717–01–P review in the Commission’s Public communication shall serve the Reference Room in Washington, DC. document on all parties listed on the There is an ‘‘eSubscription’’ link on the official service list for the applicable DEPARTMENT OF ENERGY Web site that enables subscribers to proceeding in accordance with Rule receive e-mail notification when a 2010, 18 CFR 385.2010. Federal Energy Regulatory Exempt off-the-record document is added to a subscribed Commission communications are included in the docket(s). For assistance with any FERC [Docket No. PR09–26–000] decisional record of the proceeding, Online service, please e-mail unless the communication was with a [email protected], or call Enbridge Pipelines (North Texas) L.P.; cooperating agency as described by 40 (866) 208–3676 (toll free). For TTY, call Notice of Rate Election and Revised CFR 1501.6, made under 18 CFR (202) 502–8659. Statement of Operating Conditions 385.2201(e) (1) (v). Comment Date: 5 p.m. Eastern Time The following is a list of off-the- June 9, 2009. on Monday, June 15, 2009. record communications recently Take notice that on June 1, 2009, received by the Secretary of the Enbridge Pipelines (North Texas) L.P. Kimberly D. Bose, Commission. The communications (EPNT) filed pursuant to section Secretary. listed are grouped by docket numbers in 284.123(e) of the Commission’s [FR Doc. E9–14030 Filed 6–12–09; 8:45 am] ascending order. These filings are regulations, a Statement of Operating BILLING CODE 6717–01–P available for review at the Commission Conditions (SOC) to reflect the in the Public Reference Room or may be implementation of a demand charge for viewed on the Commission’s Web site at firm service, numerous housekeeping http://www.ferc.gov using the eLibrary

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link. Enter the docket number, document. For assistance, please contact free at (866) 208–3676, or for TTY, excluding the last three digits, in the FERC, Online Support at contact (202) 502–8659. docket number field to access the [email protected] or toll

Docket No. File date Presenter or requester

PROHIBITED

1. CP07–52–000, et al...... 4–22–09 Art Gelber. 2. CP09–35–000 ...... 5–11–09 Erin Riggs.

EXEMPT

1. CP09–54–000 ...... 6–2–09 Hon. Arnold Schwarzenegger. 2. CP09–161–000 ...... 6–1–09 Hon. Brian Schweitzer. 3. P–2100–000 ...... 5–13–09 Hon. Wally Herger. 4. P–2210–000 ...... 6–5–09 Jeffrey Browning 1 5. P–2210–169 ...... 5–26–09 H. D. Schweizer, Jr. 6. P–2210–169 ...... 5–20–09 Doris C. Neudorfer. 7. P–2210–169 ...... 5–20–09 Donna English. 8. P–2210–169 ...... 5–20–09 Barbara Barnes. 9. P–2210–169 ...... 5–20–09 Diane McVaney. 10. P–2835–000 ...... 5–26–09 Hon. John M. McHugh. 1 Telephone record.

Kimberly D. Bose, Specifically, Columbia Gulf proposes Any person may, within 60 days after Secretary. to abandon approximately 5.5 miles of the issuance of the instant notice by the [FR Doc. E9–13964 Filed 6–12–09; 8:45 am] 16-inch pipeline (Segment 8310), Commission, file pursuant to Rule 214 BILLING CODE 6717–01–P Measuring Station 689, and of the Commission’s Procedural Rules appurtenances. Columbia Gulf states (18 CFR 385.214) a motion to intervene that Segment 8310 begins at the Garden or notice of intervention. Any person DEPARTMENT OF ENERGY Banks 236A platform and extends to a filing to intervene or the Commission’s sub-sea interconnection at Garden staff may, pursuant to section 157.205 of Federal Energy Regulatory Banks 149 in offshore Louisiana. the Commission’s regulations under the Commission Columbia Gulf asserts that Section 8310 NGA (18 CFR 157.205) file a protest to will be abandoned in place and will be the request. If no protest is filed within [Docket No. CP09–429–000] designated by the Mineral Management the time allowed therefore, the proposed Service (MMS) as Segment #17594. activity shall be deemed to be Columbia Gulf Transmission Columbia Gulf states that Measuring authorized effective the day after the Company; Notice of Request Under Station 689 will be removed. Columbia time allowed for protest. If a protest is Blanket Authorization Gulf asserts that production into the filed and not withdrawn within 30 days subject pipeline ceased in July of 2003, after the time allowed for filing a June 9, 2009. at which time Chevron notified protest, the instant request shall be Take notice that on June 8, 2009, Columbia Gulf that its production had treated as an application for Columbia Gulf Transmission Company been depleted and that it had no plans authorization pursuant to section 7 of (Columbia Gulf), 5151 San Felipe, Suite for future development. Columbia Gulf the NGA. 2500, Houston, Texas 77056, filed a avers that the pipeline has been inactive The Commission strongly encourages prior notice request pursuant to sections since that time. Columbia Gulf states electronic filings of comments, protests, 157.205 and 157.216 of the that Chevron has since notified and interventions via the internet in lieu Commission’s regulations under the Columbia Gulf that it intended to of paper. See 18 CFR 385.2001(a) (1) (iii) Natural Gas Act (NGA) for authorization abandon its Garden Banks 236A and the instructions on the to abandon, pursuant to Columbia Gulf’s platform to which the pipeline is Commission’s Web site (http:// blanket certificate issued in Docket No. connected. Columbia Gulf asserts that it www.ferc.gov) under the ‘‘e-Filing’’ link. CP83–496–000, certain offshore natural does not propose the abandonment of gas facilities, all as more fully set forth any service as a result of the proposed Kimberly D. Bose, in the application, which is on file with abandonment nor does Columbia Gulf Secretary. the Commission and open to public have any firm contracts utilizing the [FR Doc. E9–14027 Filed 6–12–09; 8:45 am] inspection. The filing may also be pipeline. Columbia Gulf estimates the BILLING CODE 6717–01–P viewed on the Web at http:// costs of abandoning the pipeline to be www.ferc.gov using the ‘‘eLibrary’’ link. approximately $3 million. Enter the docket number excluding the Any questions regarding this DEPARTMENT OF ENERGY last three digits in the docket number application should be directed to field to access the document. For counsel for Columbia Gulf, Fredric J. Federal Energy Regulatory assistance, contact FERC at George, Senior Counsel, P. O. Box 1273, Commission [email protected] or call Charleston, West Virginia 25325–1273; Notice of FERC Staff Attendance toll-free, (866) 208–3676 or TTY, (202) telephone (304) 357–2359, fax (304) 502–8659. 357–3206. June 8, 2009.

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Midwest Independent Transmission System Operator, Inc...... Docket No. ER09–411–000 Midwest Independent Transmission System Operator, Inc...... Docket No. ER04–691–000 Ameren Services Company Northern Indiana Public Service Company ...... Docket No. EL07–86–000 v. Midwest Independent Transmission System Operator, Inc. Great Lakes Utilities, Indiana Municipal Power Agency, Missouri Joint Municipal Electric Utility Commission, Docket No. EL07–88–000 Missouri River Energy Services, Prairie Power, Inc., Southern Minnesota Municipal Power Agency, Wis- consin Public Power Inc. v. Midwest Independent Transmission System Operator, Inc. Wabash Valley Power Association, Inc...... Docket No. EL07–92–000 v. Midwest Independent Transmission System Operator, Inc.

The Federal Energy Regulatory collection and the estimated burden and the telephone number for the Commission (Commission) hereby gives cost. Enforcement and Compliance Docket is notice that on June 10, 2009, members DATES: Additional comments may be (202) 566–1927. of its staff will participate in the Wind submitted on or before July 15, 2009. Use EPA’s electronic docket and Integration Workshop conducted by the ADDRESSES: Submit your comments, comment system at http:// Midwest Independent Transmission referencing docket ID number EPA– www.regulations.gov, to submit or view System Operator, Inc. (Midwest ISO). OECA–2008–0373, to (1) EPA online public comments, access the index The agenda and other documents for the using www.regulations.gov (our listing of the contents of the docket, and meeting are available on the Midwest preferred method), or by e-mail to to access those documents in the docket ISO’s Web site, http:// [email protected], or by mail to: EPA that are available electronically. Once in www.midwestiso.org. Docket Center (EPA/DC), Environmental the system, select ‘‘docket search,’’ then The meeting is open to all market Protection Agency, Enforcement and key in the docket ID number identified above. Please note that EPA’s policy is participants, and Commission staff’s Compliance Docket and Information that public comments, whether attendance is part of the Commission’s Center, mail code 2201T, 1200 submitted electronically or in paper, ongoing outreach efforts. The meeting Pennsylvania Avenue, NW., will be made available for public may discuss matters at issue in the Washington, DC 20460, and (2) OMB at: viewing at http://www.regulations.gov, above captioned dockets. Office of Information and Regulatory as EPA receives them and without For further information, contact Affairs, Office of Management and change, unless the comment contains Shawn Bennett at Budget (OMB), Attention: Desk Officer copyrighted material, confidential [email protected], (202) 502– for EPA, 725 17th Street, NW., business information (CBI), or other 8930. Washington, DC 20503. information whose public disclosure is Kimberly D. Bose, FOR FURTHER INFORMATION CONTACT: restricted by statute. For further Secretary. Sounjay Gairola, Office of Enforcement information about the electronic docket, [FR Doc. E9–13961 Filed 6–12–09; 8:45 am] and Compliance Assurance, go to www.regulations.gov. BILLING CODE 6717–01–P Environmental Protection Agency, 1200 Title: NESHAP for Asphalt Processing Pennsylvania Avenue, NW., and Asphalt Roofing Manufacturing Washington, DC 20460; telephone (Renewal) ENVIRONMENTAL PROTECTION number: (202) 564–4003; e-mail address: ICR Numbers: EPA ICR Number AGENCY [email protected]. 2029.04, OMB Control Number 2060– SUPPLEMENTARY INFORMATION: EPA has 0520. [EPA–HQ–OECA–2008–0373; FRL–8919–1] submitted the following ICR to OMB for ICR Status: This ICR is scheduled to review and approval according to the expire on August 31, 2009. Under OMB Agency Information Collection procedures prescribed in 5 CFR 1320.12. regulations, the Agency may continue to Activities; Submission to OMB for On May 30, 2008 (73 FR 31088), EPA conduct or sponsor the collection of Review and Approval; Comment sought comments on this ICR pursuant information while this submission is Request; NESHAP for Asphalt to 5 CFR 1320.8(d). EPA received no pending at OMB. An Agency may not Processing and Asphalt Roofing comments. Any additional comments on conduct or sponsor, and a person is not Manufacturing, EPA ICR Number this ICR should be submitted to EPA required to respond to, a collection of 2029.04, OMB Control Number 2060– and OMB within 30 days of this notice. information unless it displays a 0520 EPA has established a public docket currently valid OMB control number. AGENCY: Environmental Protection for this ICR under docket ID number The OMB control numbers for EPA’s Agency (EPA). EPA–HQ–OECA–2008–0373, which is regulations in title 40 of the CFR, after ACTION: Notice. available for public viewing online at appearing in the Federal Register when http://www.regulations.gov, in person approved, are listed in 40 CFR part 9, SUMMARY: In compliance with the viewing at the Enforcement and and displayed either by publication in Paperwork Reduction Act (44 U.S.C. Compliance Docket in the EPA Docket the Federal Register or by other 3501 et seq.), this document announces Center (EPA/DC), EPA West, Room appropriate means, such as on the that an Information Collection Request 3334, 1301 Constitution Avenue, NW., related collection instrument or form, if (ICR) has been forwarded to the Office Washington, DC. The EPA Docket applicable. The display of OMB control of Management and Budget (OMB) for Center Public Reading Room is open numbers in certain EPA regulations is review and approval. This is a request from 8:30 a.m. to 4:30 p.m., Monday consolidated in 40 CFR part 9. to renew an existing approved through Friday, excluding legal Abstract: The National Emission collection. The ICR which is abstracted holidays. The telephone number for the Standards for Hazardous Air Pollutants below describes the nature of the Reading Room is (202) 566–1744, and (NESHAP) for Asphalt Processing and

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Asphalt Roofing Manufacturing (40 CFR Dated: June 9, 2009. was approved 06/01/2009; OMB part 63, subpart LLLLL) were proposed John Moses, Number 2060–0050; expires 06/30/2012. on January 10, 1989 and promulgated on Director, Collection Strategies Division. EPA ICR Number 2183.03; Drug November 20, 1990. [FR Doc. E9–14015 Filed 6–12–09; 8:45 am] Testing for Contractor Employees The affected entities are subject to the BILLING CODE 6560–50–P (Renewal); in 5 CFR parts 731, 732 and General Provisions of the NESHAP at 40 736; was approved 06/02/2009; OMB CFR part 63, subpart A, and any Number 2030–0044; expires 06/30/2012. changes, or additions to the General ENVIRONMENTAL PROTECTION OMB Comments Filed Provisions specified at 40 CFR part 63, AGENCY subpart LLLLL. EPA ICR Number 2300.02; Regulation Owners or operators of the affected [FRL–8918–8] to Establish Mandatory Reporting of facilities must submit a one-time-only of Greenhouse Gases (Proposed Rule); any physical or operational changes, Agency Information Collection OMB filed comment on 05/21/2009. initial performance tests, and periodic Activities OMB Responses Dated: June 9, 2009. reports and results. Owners or operators are also required to maintain records of AGENCY: Environmental Protection John Moses, the occurrence and duration of any Agency (EPA). Director, Collection Strategies Division. startup, shutdown, or malfunction in ACTION: Notice. [FR Doc. E9–14014 Filed 6–12–09; 8:45 am] the operation of an affected facility, or BILLING CODE 6560–50–P any period during which the monitoring SUMMARY: This document announces the system is inoperative. Reports, at a Office of Management and Budget’s minimum, are required semiannually. (OMB) responses to Agency Clearance ENVIRONMENTAL PROTECTION Burden Statement: The annual public requests, in compliance with the AGENCY reporting and recordkeeping burden for Paperwork Reduction Act (44 U.S.C. this collection of information is 3501 et. seq.). An agency may not [EPA–HQ–OECA–2008–0298; FRL–8918–9] estimated to average 223 hours per conduct or sponsor, and a person is not Agency Information Collection response. Burden means the total time, required to respond to, a collection of Activities; Submission to OMB for effort, or financial resources expended information unless it displays a Review and Approval; Comment by persons to generate, maintain, retain, currently valid OMB control number. Request; NESHAP for Benzene Waste or disclose or provide information to or The OMB control numbers for EPA’s Operations (Renewal), EPA ICR for a Federal agency. This includes the regulations are listed in 40 CFR part 9 Number 1541.09, OMB Control Number time needed to review instructions; and 48 CFR chapter 15. 2060–0183 develop, acquire, install, and utilize FOR FURTHER INFORMATION CONTACT: Rick technology and systems for the purposes Westlund (202) 566–1682, or e-mail at AGENCY: Environmental Protection of collecting, validating, and verifying [email protected] and please refer Agency (EPA). to the appropriate EPA Information information, processing and ACTION: Notice. maintaining information, and disclosing Collection Request (ICR) Number. and providing information; adjust the SUPPLEMENTARY INFORMATION: SUMMARY: In compliance with the existing ways to comply with any Paperwork Reduction Act (44 U.S.C. OMB Responses to Agency Clearance previously applicable instructions and 3501 et seq.), this document announces Requests requirements which have subsequently that an Information Collection Request changed; train personnel to be able to OMB Approvals (ICR) has been forwarded to the Office respond to a collection of information; EPA ICR Number 2357.01; of Management and Budget (OMB) for search data sources; complete and Regulations.gov Exchange Information review and approval. This is a request review the collection of information; Collection; was approved 05/18/2009; to renew an existing approved and transmit or otherwise disclose the OMB Number 2025–0008; expires 11/ collection. The ICR which is abstracted information. 30/2009. below describes the nature of the Respondents/Affected Entities: collection and the estimated burden and Asphalt processing and asphalt roofing EPA ICR Number 2163.03; NSPS for Other Solid Waste Incineration (OSWI) cost. production facilities. DATES: Additional comments may be Estimated Number of Respondents: Units (Renewal); in 40 CFR part 60, submitted on or before July 15, 2009. 24. subpart EEEE; was approved 05/21/ Frequency of Response: Initially, 2009; OMB Number 2060–0563; expires ADDRESSES: Submit your comments, occasionally and semiannually. 05/31/2012. referencing docket ID number EPA–HQ– Estimated Total Annual Hour Burden: EPA ICR Number 1821.06; NESHAP OECA–2008–0298, to (1) EPA online 12,017. for Steel Pickling, HCI Process Facilities using www.regulations.gov (our Estimated Total Annual Cost: and Hydrochloric Acid Regeneration preferred method), or by e-mail to $1,041,641, which includes $1,016,234 Plants (Renewal); in 40 CFR part 63, [email protected], or by mail to: EPA in Labor costs, $25,407 in O&M costs, subpart CCC; was approved 05/21/2009; Docket Center (EPA/DC), Environmental and no annualized capital/startup costs. OMB Number 2060–0419; expires 05/ Protection Agency, Enforcement and Changes in the Estimates: There is no 31/2012. Compliance Docket and Information change in the total estimated burden EPA ICR Number 2288.01; Pesticides Center, mail code 2201T, 1200 currently identified in the OMB Data Call In Program; in 40 CFR parts Pennsylvania Avenue, NW., Inventory of Approved ICR Burdens. 154 and 155; was approved 05/27/2009; Washington, DC 20460, and (2) OMB at: Apparent differences of less than 500 OMB Number 2070–0174; expires 05/ Office of Information and Regulatory hours are attributable to rounding; in 31/2012. Affairs, Office of Management and previous years, hours were rounded to EPA ICR Number 1084.10; NSPS for Budget (OMB), Attention: Desk Officer the nearest thousand; this ICR presents Nonmetallic Mineral Processing (Final for EPA, 725 17th Street, NW., more exact figures. Rule); in 40 CFR part 60, subpart OOO; Washington, DC 20503.

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FOR FURTHER INFORMATION CONTACT: conduct or sponsor the collection of respond to, a collection of information Learia Williams, Compliance information while this submission is unless it displays a currently valid OMB Assessment and Media Programs pending at OMB. An Agency may not Control Number. The OMB Control Division, Office of Compliance, Mail conduct or sponsor, and a person is not Number for EPA regulations listed in 40 Code 2223A, Environmental Protection required to respond to, a collection of CFR part 9 and 48 CFR chapter 15, are Agency, 1200 Pennsylvania Avenue, information unless it displays a identified on the form and/or NW., Washington, DC 20460; telephone currently valid OMB control number. instrument, if applicable. number: (202) 564–4113; fax number: The OMB control numbers for EPA’s (202) 564–0050; e-mail address: regulations in title 40 of the CFR, after Burden Statement: The annual public [email protected]. appearing in the Federal Register when reporting and recordkeeping burden for approved, are listed in 40 CFR part 9, this collection of information are SUPPLEMENTARY INFORMATION: EPA has and displayed either by publication in estimated to average 71 hours per submitted the following ICR to OMB for the Federal Register or by other response. Burden means the total time, review and approval according to the appropriate means, such as on the effort, or financial resources expended procedures prescribed in 5 CFR 1320.12. related collection instrument or form, if by persons to generate, maintain, retain, On May 30, 2008 (73 FR 31088), EPA applicable. The display of OMB control or disclose and provide information to sought comments on this ICR pursuant numbers in certain EPA regulations is or for a Federal agency. This includes to 5 CFR 1320.8(d). EPA received no consolidated in 40 CFR part 9. comments. Any additional comments on the time needed to review instructions, Abstract: The National Emission develop, acquire, install, and utilize this ICR should be submitted to EPA Standards for Hazardous Air Pollutants and OMB within 30 days of this notice. technology and systems for the purposes (NESHAP) for Benzene Waste of collecting, validating, and verifying EPA has established a public docket Operations, 40 CFR part 61, subpart FF, for this ICR under docket ID number information, processing and were proposed on September 14, 1989 maintaining information, and disclosing EPA–HQ–OECA–2008–0298, which is and promulgated on March 7, 1990. and providing information. All existing available for public viewing online at These regulations apply to facilities http://www.regulations.gov, in person that generate waste containing Benzene, ways will have to adjust to comply with viewing at the Enforcement and such as chemical manufacturing plants, any previously applicable instructions Compliance Docket in the EPA Docket coke by-product recovery plants, and requirements that have Center (EPA/DC), EPA West, Room petroleum refineries, and those owners subsequently changed; train personnel 3334, 1301 Constitution Avenue, NW., and operators of hazardous waste to be able to respond to a collection of Washington, DC. The EPA Docket treatment, storage, and disposal information; search data sources; Center Public Reading Room is open facilities (TSDF) which receive wastes complete and review the collection of from 8:30 a.m. to 4:30 p.m., Monday from the above facilities, commencing information; and transmit or otherwise through Friday, excluding legal construction, modification or disclose the information. holidays. The telephone number for the reconstruction after the date of the Respondents/Affected Entities: Reading Room is (202) 566–1744, and proposal. This information is being Benzene waste operations. the telephone number for the collected to assure compliance with 40 Enforcement and Compliance Docket is CFR part 61, subpart FF. Estimated Number of Respondents: (202) 566–1927. The monitoring, recordkeeping, and 270. Use EPA’s electronic docket and reporting requirements outlined in these Frequency of Response: On occasion, comment system at http:// rules are similar to those required for initially, quarterly and semiannually. www.regulations.gov, to submit or view other NESHAP regulations. Consistent Estimated Total Annual Hour Burden: public comments, access the index with the NESHAP General Provisions 19,148. listing of the contents of the docket, and (40 CFR part 63, subpart A), to access those documents in the docket respondents are required to submit Estimated Total Annual Cost: that are available electronically. Once in initial notifications conduct $1,738,751 in Labor costs exclusively. the system, select ‘‘docket search,’’ then performance tests, and submit quarterly There are neither capital/startup nor key in the docket ID number identified or semiannual reports, as applicable. operation and maintenance (O&M) costs above. Please note that EPA’s policy is They also are required to maintain associated with this ICR. that public comments, whether records of applicability determinations; Changes in the Estimates: There is an submitted electronically or in paper will performance test results; exceedances; adjustment in the total estimated burden be made available for public viewing at periods of startup, shutdown, or as currently identified in the OMB http://www.regulations.gov, as EPA malfunction (SSM); monitoring records Inventory of Approved Burdens. This receives them and without change, and all other information needed to increase is not due to any program unless the comment contains determine compliance with the changes. The increase in the number of copyrighted material, Confidential applicable standards. Business Information (CBI), or other Any owner or operator subject to the sources from 234 to 270 was due to a information whose public disclosure is provisions of this subpart must maintain thorough research of the industry and restricted by statute. For further a file of these measurements, and retain the data obtained from the trade information about the electronic docket, the file for at least five years following associations and environmental go to www.regulations.gov. the collection of such measurements, consultant, which resulted in a more Title: NESHAP for Benzene Waste maintenance reports, and records. All accurate count of the affected facilities. Operations (Renewal). reports are sent to the delegated state or This increase was not due to new or ICR Numbers: EPA ICR Number local authority. In the event that there reconstructed facilities. This ICR also 1541.09, OMB Control Number 2060– is no such delegated authority, the reflects the most recent hourly labor 0183. reports are sent directly to the EPA rates which take into account the ICR Status: This ICR is schedule to regional office. managerial, technical and clerical expire on August 31, 2009. Under OMB An Agency may not conduct or burdens as compared to the previous regulations, the Agency may continue to sponsor, and a person is not required to ICR.

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Dated: June 9, 2009. to 5 CFR 1320.8(d). EPA received no Abstract: Section 126(f) of the John Moses, comments. Any additional comments on Superfund Amendments and Director, Collection Strategies Division. this ICR should be submitted to EPA Reauthorization Act of 1986 (SARA) [FR Doc. E9–14013 Filed 6–12–09; 8:45 am] and OMB within 30 days of this notice. requires EPA to set worker protection EPA has established a public docket BILLING CODE 6560–50–P standards for State and local employees for this ICR under Docket ID No. EPA– engaged in hazardous waste operations HQ–SFUND–2005–0007, which is and emergency response in the 27 States ENVIRONMENTAL PROTECTION available for online viewing at that do not have Occupational Safety AGENCY www.regulations.gov, or in person and Health Administration approved viewing at the Superfund Docket in the State plans. The EPA coverage, required [EPA–HQ–SFUND–2005–0007, FRL–8918–4] EPA Docket Center (EPA/DC), EPA to be identical to the OSHA standards, West, Room 3334, 1301 Constitution extends to three categories of Agency Information Collection Ave., NW., Washington, DC. The EPA/ Activities; Proposed Collection; employees: those engaged in clean-ups DC Public Reading Room is open from at uncontrolled hazardous waste sites, Comment Request; EPA Worker 8:30 a.m. to 4:30 p.m., Monday through Protection Standards for Hazardous including corrective actions at Friday, excluding legal holidays. The Treatment, Storage and Disposal (TSD) Waste Operations and Emergency telephone number for the Reading Room Response (Renewal); EPA ICR Number facilities regulated under the Resource is 202–566–1744, and the telephone Conservation and Recovery Act (RCRA); 1426.08, OMB Control Number 2050– number for the Superfund Docket is 0105 employees working at routine hazardous 202–566–0276. waste operations at RCRA TSD facilities, Use EPA’s electronic docket and AGENCY: Environmental Protection and employees involved in emergency Agency (EPA). comment system at response operations without regard to www.regulations.gov, to submit or view ACTION: Notice. location. This ICR renews existing public comments, access the index mandatory record keeping collection of SUMMARY: In compliance with the listing of the contents of the docket, and ongoing activities including monitoring Paperwork Reduction Act (PRA) (44 to access those documents in the docket of any potential employee exposure at U.S.C. 3501 et seq.), this document that are available electronically. Once in uncontrolled hazardous waste sites, announces that an Information the system, select ‘‘docket search,’’ then maintaining records of employee Collection Request (ICR) has been key in the docket ID number identified training, refresher training, medical forwarded to the Office of Management above. Please note that EPA’s policy is exams and reviewing emergency and Budget (OMB) for review and that public comments, whether response plans. submitted electronically or in paper, approval. This is a request to renew an will be made available for public Burden Statement: The annual public existing approved collection. The ICR, viewing at www.regulations.gov as EPA reporting and recordkeeping burden for which is abstracted below, describes the receives them and without change, this collection of information is nature of the information collection and unless the comment contains estimated to average 12 hours per its estimated burden and cost. copyrighted material, confidential response. Burden means the total time, DATES: Additional comments may be business information (CBI), or other effort, or financial resources expended submitted on or before July 15, 2009. information whose public disclosure is by persons to generate, maintain, retain, ADDRESSES: Submit your comments, restricted by statute. For further or disclose or provide information to or referencing Docket ID No. EPA–HQ– information about the electronic docket, for a Federal agency. This includes the SFUND–2005–0007, to (1) EPA online go to www.regulations.gov. time needed to review instructions; using www.regulations.gov (our Title: EPA Worker Protection develop, acquire, install, and utilize preferred method), by e-mail to Standards for Hazardous Waste technology and systems for the purposes [email protected] or by mail Operation and Emergency Response of collecting, validating, and verifying to: EPA Docket Center, Environmental (Renewal). information, processing and Protection Agency, Superfund Docket ICR numbers: EPA ICR No. 1426.08, maintaining information, and disclosing (28221T), 1200 Pennsylvania Ave., NW., OMB Control No. 2050–0105. and providing information; adjust the Washington, DC 20460, and (2) OMB by ICR Status: This ICR is scheduled to existing ways to comply with any mail to: Office of Information and expire on June 30, 2009. Under OMB previously applicable instructions and Regulatory Affairs, Office of regulations, the Agency may continue to requirements which have subsequently Management and Budget (OMB), conduct or sponsor the collection of changed; train personnel to be able to Attention: Desk Officer for EPA, 725 information while this submission is respond to a collection of information; 17th Street, NW., Washington, DC pending at OMB. An Agency may not search data sources; complete and 20503. conduct or sponsor, and a person is not review the collection of information; required to respond to, a collection of and transmit or otherwise disclose the FOR FURTHER INFORMATION CONTACT: information, unless it displays a information. Sella M. Burchette, U.S. Environmental currently valid OMB control number. Respondents/Affected Entities: State Response Team, MS 101, Building 18, The OMB control numbers for EPA’s Edison, NJ 08837, telephone number: and local governments in the 27 States regulations in title 40 of the CFR, after and 2 territories that do not have OSHA- 721–321–6726; fax number: 732–321– appearing in the Federal Register when 6724; e-mail address: approved plans under section 18(b) of approved, are listed in 40 CFR part 9, the OSH Act. [email protected]. are displayed either by publication in Estimated Number of Respondents: SUPPLEMENTARY INFORMATION: EPA has the Federal Register or by other 25,052. submitted the following ICR to OMB for appropriate means, such as on the review and approval according to the related collection instrument or form, if Frequency of Response: Once, procedures prescribed in 5 CFR 1320.12. applicable. The display of OMB control Annually, On Occasion. On Feb 3, 2009, (74 FR 5931), EPA numbers in certain EPA regulations is Estimated Total Annual Hour Burden: sought comments on this ICR pursuant consolidated in 40 CFR part 9. 311,680.

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Estimated Total Annual Cost: Assessment and Media Programs information while this submission is $4,253,976, includes no annualized Division, Office of Compliance, Mail pending at OMB. An Agency may not capital or O&M costs. Code 2223A, Environmental Protection conduct or sponsor, and a person is not Changes in the Estimates: There is an Agency, 1200 Pennsylvania Avenue, required to respond to, a collection of increase of 56,253 hours in the total NW., Washington, DC 20460; telephone information unless it displays a estimated burden currently identified in number: (202) 564–4113; fax number: currently valid OMB control number. the OMB Inventory of Approved ICR (202) 564–0050; e-mail address: The OMB control numbers for EPA’s Burdens. This is due primarily to the [email protected]. regulations in title 40 of the CFR, after estimated growth in the number of fire appearing in the Federal Register when SUPPLEMENTARY INFORMATION: EPA has approved, are listed in 40 CFR part 9, departments and other respondents submitted the following ICR to OMB for and displayed either by publication in subject to this collection. review and approval according to the the Federal Register or by other Dated: June 9, 2009. procedures prescribed in 5 CFR 1320.12. appropriate means, such as on the John Moses, On May 30, 2008 (73 FR 31088), EPA related collection instrument or form, if Director, Collection Strategies Division. sought comments on this ICR pursuant applicable. The display of OMB control to 5 CFR 1320.8(d). EPA received no [FR Doc. E9–14011 Filed 6–12–09; 8:45 am] numbers in certain EPA regulations is comments. Any additional comments on BILLING CODE 6560–50–P consolidated in 40 CFR part 9. this ICR should be submitted to EPA Abstract: Respondents subject to 40 and OMB within 30 days of this notice. CFR part 60, subpart Ce, and to 40 CFR ENVIRONMENTAL PROTECTION EPA has established a public docket part 62, subpart HHH, are owners or AGENCY for this ICR under docket ID number operators of hospital, medical, or EPA–HQ–OECA–2008–0283, which is [EPA–HQ–OECA–2008–0283; FRL–8918–5] infectious waste incinerators. Subpart available for public viewing online at Ce was promulgated on September 15, Agency Information Collection http://www.regulations.gov, in person 1997, and requires states or tribes to Activities; Submission to OMB for viewing at the Enforcement and develop plans to implement the Review and Approval; Comment Compliance Docket in the EPA Docket Emission Guidelines. If approvable State Request; State and Federal Emission Center (EPA/DC), EPA West, Room or tribal plans were not developed, EPA Guidelines for Hospital/Medical/ 3334, 1301 Constitution Avenue, NW., was required to develop a Federal plan Infectious Waste Incineration Washington, DC. The EPA Docket to implement the Emission Guidelines (Renewal), EPA ICR Number 1899.05, Center Public Reading Room is open in such States or tribes. The Federal OMB Control Number 2060–0422 from 8:30 a.m. to 4:30 p.m., Monday plan, subpart HHH, was promulgated on through Friday, excluding legal September 14, 2000. AGENCY: Environmental Protection holidays. The telephone number for the Subparts Ce and HHH require initial Agency (EPA). Reading Room is (202) 566–1744, and notifications, performance tests, and ACTION: Notice. the telephone number for the annual and semi-annual reporting. Enforcement and Compliance Docket is SUMMARY: In compliance with the Owners or operators are also required to (202) 566–1927. maintain records of the occurrence and Paperwork Reduction Act (44 U.S.C. Use EPA’s electronic docket and 3501 et seq.), this document announces duration of any startup, shutdown, or comment system at http:// malfunction in the operation of an that an Information Collection Request www.regulations.gov, to submit or view (ICR) has been forwarded to the Office affected facility, or any period during public comments, access the index which the monitoring system is of Management and Budget (OMB) for listing of the contents of the docket, and review and approval. This is a request inoperative. These notifications, reports, to access those documents in the docket and records are essential in determining to renew an existing approved that are available electronically. Once in collection. The ICR which is abstracted compliance. the system, select ‘‘docket search,’’ then Any owner or operator subject to the below describes the nature of the key in the docket ID number identified provisions of these parts shall maintain collection and the estimated burden and above. Please note that EPA’s policy is a file of these measurements, and retain cost. that public comments, whether the file for at least five years following DATES: Additional comments may be submitted electronically or in paper will the collection of such measurements, submitted on or before July 15, 2009. be made available for public viewing at maintenance reports, and records. All ADDRESSES: Submit your comments, http://www.regulations.gov, as EPA reports are sent to the delegated State or referencing docket ID number EPA–HQ– receives them and without change, tribal authority. In the event that there OECA–2008–0283, to (1) EPA online unless the comment contains is no such delegated authority, the using http://www.regulations.gov (our copyrighted material, Confidential reports are sent directly to the EPA preferred method), or by e-mail to Business Information (CBI), or other regional office. This information is [email protected], or by mail to: EPA information whose public disclosure is being collected to assure compliance Docket Center (EPA/DC), Environmental restricted by statute. For further with 40 CFR part 60, subpart Ce and 40 Protection Agency, Enforcement and information about the electronic docket, CFR part 62, subpart HHH, as Compliance Docket and Information go to http://www.regulations.gov. authorized in sections 112 and 114(a) of Center, mail code 2201T, 1200 Title: State and Federal Emission the Clean Air Act. The required Pennsylvania Avenue, NW., Guidelines for Hospital/Medical/ information consists of emissions data Washington, DC 20460, and (2) OMB at: Infectious Waste Incineration (Renewal). and other information that have been Office of Information and Regulatory ICR Numbers: EPA ICR Number determined to be private. Affairs, Office of Management and 1899.05, OMB Control Number 2060– An Agency may not conduct or Budget (OMB), Attention: Desk Officer 0422. sponsor, and a person is not required to for EPA, 725 17th Street, NW., ICR Status: This ICR is scheduled to respond to, a collection of information Washington, DC 20503. expire on August 31, 2009. Under OMB unless it displays a currently valid OMB FOR FURTHER INFORMATION CONTACT: regulations, the Agency may continue to Control Number. The OMB Control Learia Williams, Compliance conduct or sponsor the collection of Number for EPA regulations listed in 40

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CFR part 9 and 48 CFR chapter 15 are ENVIRONMENTAL PROTECTION as a PM2.5 FEM (EQPM–0308–170). The identified on the form and/or AGENCY second BAM–1020 monitor (PM10 instrument, if applicable. measurement) is configurable as a PM2.5 FEM [FRL–8919–2] (EQPM–0308–170), but set to monitor PM10. Burden Statement: The annual public The BAM–1020 monitors are collocated to reporting and recordkeeping burden for Office of Research and Development; within 1–4 meters of one another. The BAM– this collection of information is Ambient Air Monitoring Reference and 1020 performing the PM2.5 measurement is estimated to average 320 hours per Equivalent Methods: Designation of a equipped with Met One Instruments, Inc. P/ New Equivalent Method N BX–Coarse interface board and accessories; response. Burden means the total time, the units are interconnected to provide effort, or financial resources expended AGENCY: Environmental Protection concurrent sampling and to report PM10–2.5 by persons to generate, maintain, retain, Agency. concentrations directly to the user. Both units are operated in accordance with BAM– or disclose and provide information ACTION: Notice of the designation of a either to or for a Federal agency. This 1020 PM–Coarse Addendum Rev. 5–5 or later new equivalent method for monitoring and the BAM–1020 Operations Manual Rev. includes the time needed to review ambient air quality. D or later. instructions, develop, acquire, install, and utilize technology and systems for SUMMARY: Notice is hereby given that The application for equivalent the purposes of collecting, validating, the Environmental Protection Agency method determination for this candidate method was received by the EPA on and verifying information, processing (EPA) has designated, in accordance January 22, 2009. The monitor is and maintaining information, and with 40 CFR Part 53, a new equivalent method for measuring concentrations of commercially available from the disclosing and providing information. applicant, Met One Instruments, Inc., All existing ways will have to adjust to PM10–2.5 in the ambient air. FOR FURTHER INFORMATION CONTACT: 1600 Washington Blvd., Grants Pass, OR comply with any previously applicable 97526. instructions and requirements that have Surender Kaushik, Human Exposure and Atmospheric Sciences Division Test analyzers representative of this subsequently changed; train personnel method have been tested in accordance to be able to respond to a collection of (MD–D205–03), National Exposure Research Laboratory, U.S. EPA, with the applicable test procedures information; search data sources; Research Triangle Park, North Carolina specified in 40 CFR part 53 (as amended complete and review the collection of 27711. Phone: (919) 541–5691, email: on October 17, 2006). After reviewing information; and transmit or otherwise [email protected]. the results of those tests and other disclose the information. information submitted by the applicant Respondents/Affected Entities: SUPPLEMENTARY INFORMATION: In in the application, EPA has determined, Owners and operators of hospital/ accordance with regulations at 40 CFR in accordance with part 53, that this medical/infectious waste incinerators. Part 53, the EPA evaluates various method should be designated as an methods for monitoring the equivalent method. The information Estimated Number of Respondents: concentrations of those ambient air submitted by the applicant will be kept 72. pollutants for which EPA has on file, either at EPA’s National Frequency of Response: Initially, established National Ambient Air Exposure Research Laboratory, Research occasionally, annually and Quality Standards (NAAQSs) as set Triangle Park, North Carolina 27711 or semiannually. forth in 40 CFR Part 50. Monitoring in an approved archive storage facility, methods that are determined to meet and will be available for inspection Estimated Total Annual Hour Burden: specific requirements for adequacy are (with advance notice) to the extent 69,067. designated by the EPA as either consistent with 40 CFR Part 2 (EPA’s Estimated Total Annual Cost: reference methods or equivalent regulations implementing the Freedom $5,705,702, which is comprised of methods (as applicable), thereby of Information Act). $5,575,702 in labor costs, $130,000 in permitting their use under 40 CFR Part As a designated equivalent method, operation and maintenance (O&M) 58 by States and other agencies for this method is acceptable for use by costs, and no capital/startup costs. determining compliance with the states and other air monitoring agencies Changes in the Estimates: There is no NAAQSs. under the requirements of 40 CFR part The EPA hereby announces the change in the labor hours in this ICR 58, Ambient Air Quality Surveillance. designation of a new equivalent method For such purposes, this method must be compared to the previous ICR. This is for measuring concentrations of PM10–2.5 used in strict accordance with the due to two considerations. First, the in the ambient air. This designation is operation or instruction manual regulations have not changed over the made under the provisions of 40 CFR associated with the method and subject past three years and are not anticipated part 53, as amended on October 17, to any specifications and limitations to change over the next three years. 2006 (71 FR 61271). (e.g., configuration or operational Secondly, the current growth rate for the The new PM10–2.5 equivalent method settings) specified in the applicable industry is very low, negative or utilizes a pair of FEM samplers (EQPM– designated method description (see the nonexistent, so there is no significant 0308–170), one configured to measure identification of the method above). change in the overall burden. PM2.5 and the other to measure PM10. Use of the method should also be in Dated: June 8, 2009. This automated monitoring method general accordance with the guidance utilizes a measurement principle based and recommendations of applicable John Moses, on sample collection by filtration and sections of the ‘‘Quality Assurance Director, Collection Strategies Division. analysis by beta-ray attenuation. The Handbook for Air Pollution [FR Doc. E9–14010 Filed 6–12–09; 8:45 am] newly designated equivalent method is Measurement Systems, Volume I,’’ EPA/ BILLING CODE 6560–50–P identified as follows: 600/R–94/038a and ‘‘Quality Assurance EQPM–0709–185, ‘‘Met One Instruments Handbook for Air Pollution BAM–1020 PM10–2.5 Measurement System,’’ Measurement Systems, Volume II, consisting of 2 BAM–1020 monitors, the first Ambient Air Quality Monitoring of which (PM2.5 measurement) is configured Program’’ EPA–454/B–08–003,

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December, 2008 (available at http:// ACTION: Notice of final action. petitioner demonstrates that it was www.epa.gov/ttn/amtic/qabook.html). impracticable to raise these issues Vendor modifications of a designated SUMMARY: This document announces during the comment period or the equivalent method used for purposes of that the EPA Administrator has grounds for the issues arose after this Part 58 are permitted only with prior responded to a citizen petition asking period. approval of the EPA, as provided in part EPA to object to the CITGO Refining and On March 30, 2007, EPA received a 53. Provisions concerning modification Chemicals Company L.P. (CITGO) petition from the Petitioners requesting of such methods by users are specified operating permit issued by the Texas that EPA object to the issuance of the under Section 2.8 (Modifications of Commission on Environmental Quality. title V operating permit to CITGO for the Methods by Users) of Appendix C to 40 Specifically, the Administrator has operation of the West Plant at its CFR Part 58. partially granted and partially denied refinery in Corpus Christi, Texas. First, In general, a method designation the petition submitted by the petitioners claim that the permit’s applies to any sampler or analyzer Environmental Integrity Project, the monitoring requirements are not which is identical to the sampler or Refinery Reform Campaign, Citizens for adequate to ensure compliance with all analyzer described in the application for Environmental Justice, and Suzie emission limitations and other designation. In some cases, similar Canales (Petitioners), to object to the substantive Act requirements. samplers or analyzers manufactured title V operating permit for CITGO to Second, the Petitioners claim that the prior to the designation may be operate the West Plant at its refinery in permit’s use of incorporation by upgraded or converted (e.g., by minor Corpus Christi, Texas. reference for emission limitations and modification or by substitution of the Pursuant to section 505(b)(2) of the standards violates title V of the Act and approved operation or instruction Clean Air Act (Act), the petitioner may its implementing regulations at 40 CFR manual) so as to be identical to the seek judicial review of those portions of part 70 and renders the permit designated method and thus achieve the petition which EPA denied in the practically unenforceable. Further, the designated status. The manufacturer United States Court of Appeals for the Petitioners claim that (1) the permit should be consulted to determine the appropriate circuit. Any petition for should include the emission rate tables feasibility of such upgrading or review shall be filed within 60 days located in underlying permits; (2) the conversion. from the date this notice appears in the Applicable Requirements Summary of Part 53 requires that sellers of Federal Register, pursuant to section the permit must reference a State designated reference or equivalent 307 of the Act. administrative enforcement order, and method analyzers or samplers comply ADDRESSES: You may review copies of the permit should explicitly state the with certain conditions. These the final order, the petition, and other provisions of the order as terms of the conditions are specified in 40 CFR 53.9. supporting information at EPA Region 6, permit; and (3) the permit must Aside from occasional breakdowns or 1445 Ross Avenue, Dallas, Texas 75202– explicitly incorporate a federal consent malfunctions, consistent or repeated 2733. EPA requests that if at all decree, and the permit should noncompliance with any of these possible, you contact the individual specifically state the emission conditions should be reported to: listed in the FOR FURTHER INFORMATION limitations and monitoring Director, Human Exposure and CONTACT section to view copies of the requirements of the consent decree as Atmospheric Sciences Division (MD– final order, petition, and other terms of the permit. E205–01), National Exposure Research supporting information. If you wish to On May 28, 2009, the Administrator Laboratory, U.S. Environmental examine these documents, you should issued an order partially granting and Protection Agency, Research Triangle make an appointment at least 24 hours partially denying the petition. The order Park, North Carolina 27711. before visiting day. The final order is explains the reasons behind EPA’s Designation of this new equivalent also available electronically at: http:// conclusion to partially grant and method is intended to assist the States www.epa.gov/region07/programs/artd/ partially deny the petition for objection. _ in establishing and operating their air air/title5/petitiondb/petitions/citgo Dated: June 5, 2009. quality surveillance systems under 40 corpuschristi_west_response2007.pdf. Lawrence E. Starfield, CFR part 58. Questions concerning the FOR FURTHER INFORMATION CONTACT: Acting Regional Administrator, Region 6. commercial availability or technical Bonnie Braganza, Air Permits Section, [FR Doc. E9–14016 Filed 6–12–09; 8:45 am] aspects of the method should be Multimedia Planning and Permitting directed to the applicant. Division, EPA Region 6, 1445 Ross BILLING CODE 6560–50–P Jewel F. Morris, Avenue, Dallas, Texas 75202–2733, telephone (214) 665–7340, or e-mail at Acting Director, National Exposure Research ENVIRONMENTAL PROTECTION Laboratory. [email protected]. AGENCY [FR Doc. E9–14022 Filed 6–12–09; 8:45 am] SUPPLEMENTARY INFORMATION: The Act [FRL–8918–7] BILLING CODE 6560–50–P affords EPA a 45-day period to review, and, as appropriate, object to operating Clean Air Act Operating Permit permits proposed by State permitting Program; Petition for Objection to authorities under Title V of the Act. ENVIRONMENTAL PROTECTION Federal Operating Permit for The Section 505(b)(2) of the Act authorizes AGENCY Premcor Refining Group, Inc. any person to petition the EPA [FRL–8918–6] Administrator within 60 days after the AGENCY: Environmental Protection Clean Air Act Operating Permit expiration of this review period to Agency (EPA). Program; Petition for Objection to object to title V operating permits if EPA ACTION: Notice of final action. Federal Operating Permit for CITGO has not done so. Petitions must be based Refining and Chemicals Company L.P. only on objections to the permit that SUMMARY: This document announces were raised with reasonable specificity that the EPA Administrator has AGENCY: Environmental Protection during the public comment period responded to a citizen petition asking Agency (EPA). provided by the State, unless the EPA to object to the Premcor Refining

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Group Inc., (Premcor) title V operating On February 16, 2007, EPA received SUMMARY: In accordance with section permit issued by the Texas Commission a petition from the Petitioners 122(i) of CERCLA, 42 U.S.C. 9622(i), on Environmental Quality (TCEQ). requesting that EPA object to the notification is hereby given of a Specifically, the Administrator has issuance of the title V operating permit proposed administrative settlement partially granted and partially denied to Premcor for the operation of its agreement regarding partial recovery of the petition submitted by refinery in Port Arthur, Texas. First, the costs incurred by EPA in implementing Environmental Integrity Project, the petitioners claim that the proposed a removal action at the site of a truck Community In-Power Development permit lacks monitoring, recordkeeping, accident on Interstate 75 in Cheboygan Association, Inc., Public Citizen’s Texas and reporting sufficient to assure County, Michigan. EPA proposes to Office, and the Refinery Reform compliance with all emission enter into this agreement under the Campaign (Petitioners), to object to the limitations and other substantive Clean authority of Sections 107 and 122(h) of permit for Premcor to operate its Air Act requirements. Specifically the CERCLA, 42 U.S.C. 9607 and 9622(h). refinery in Port Arthur, Texas. petitioners cite numerous monitoring, The proposed agreement has been recordkeeping, and reporting Pursuant to section 505(b)(2) of the executed by Haythorne Logistics, a Clean Air Act (Act), the petitioner may deficiencies in the underlying permits trucking company located in Toledo seek judicial review of those portions of and permits by rule that are Ohio. Under the proposed agreement, the petition which EPA denied in the incorporated by reference into the title Haythorne Logistics will pay $119,000 United States Court of Appeals for the V permit. appropriate circuit. Any petition for Second, the petitioners claim that the to reimburse the Superfund for part of review shall be filed within 60 days extensive use of incorporation by the $137,915 in costs incurred by EPA from the date this notice appears in the reference for emission limitations and in implementing the removal action. For Federal Register, pursuant to section standards violates title V of the Act and thirty days following the date of 307 of the Act. its implementing regulations at 40 CFR publication of this notice, EPA will receive written comments relating to the ADDRESSES: You may review copies of part 70, thereby rendering the permit proposed agreement. EPA will consider the final order, the petition, and other practically unenforceable. The supporting information at EPA Region 6, petitioners claim that the use of all comments received and may decide 1445 Ross Avenue, Dallas, Texas 75202– incorporation by reference makes it not to enter into the proposed agreement 2733. EPA requests that if at all practically impossible for the public to if comments disclose facts or possible, you contact the individual discover the requirements of the permit, considerations which indicate that the listed in the FOR FURTHER INFORMATION which defeats the intention of the title agreement is inappropriate, improper or CONTACT section to view copies of the V program. Further, the petitioners inadequate. claim that there is inadequate guidance final order, petition, and other DATES: Comments on the proposed supporting information. If you wish to as to where the referenced permits may be found and they were unable to obtain agreement must be received by EPA on examine these documents, you should or before July 15, 2009. make an appointment at least 24 hours complete or current copies of a number before visiting day. The final order is of the underlying permits from TCEQ. ADDRESSES: Comments should be also available electronically at: http:// On May 28, 2009, the Administrator addressed to the Docket Clerk, U.S. www.epa.gov/region07/programs/artd/ issued an order partially granting and Environmental Protection Agency, air/title5/petitiondb/petitions/ partially denying the petition. The order Region 5, 77 West Jackson Boulevard, premcor_portarthur_response2007.pdf. explains the reasons behind EPA’s Chicago, Illinois 60604–3590, and conclusion to partially grant and should refer to: In the Matter of FOR FURTHER INFORMATION CONTACT: partially deny the petition for objection. Bonnie Braganza, Air Permits Section, Haythorne Logistics, EPA Docket No. V– Multimedia Planning and Permitting Dated: June 5, 2009. W–‘09–C–924. Lawrence E. Starfield, Division, EPA Region 6, 1445 Ross FOR FURTHER INFORMATION CONTACT: Avenue, Dallas, Texas 75202–2733, Acting Regional Administrator, Region 6. Reginald A. Pallesen, Associate telephone (214) 665–7340, or e-mail at [FR Doc. E9–14008 Filed 6–12–09; 8:45 am] Regional Counsel, by mail at: U.S. [email protected]. BILLING CODE 6560–50–P Environmental Protection Agency, SUPPLEMENTARY INFORMATION: The Act Office of Regional Counsel (C–14J), 77 affords EPA a 45-day period to review, ENVIRONMENTAL PROTECTION West Jackson Boulevard, Chicago, and, as appropriate, object to operating AGENCY Illinois 60604–3590, or by phone at: permits proposed by State permitting (312) 886–0555. A copy of the proposed authorities under title V of the Act. administrative settlement agreement [FRL–8917–7] Section 505(b)(2) of the Act authorizes may be obtained in person or by mail any person to petition the EPA Proposed Administrative Cost from the EPA’s Region 5 Office of Administrator within 60 days after the Recovery Agreement Pursuant to Regional Counsel, 77 West Jackson expiration of this review period to Section 122(h)(1) of the Boulevard, Chicago, Illinois 60604– object to title V operating permits if EPA Comprehensive Environmental 3590. Additional background has not done so. Petitions must be based Response, Compensation, and Liability information relating to the settlement is only on objections to the permit that Act (CERCLA) for the Haythorne available for review at the EPA’s Region were raised with reasonable specificity Logistics Spill Site, Cheboygan 5 Office of Regional Counsel. during the public comment period County, MI provided by the State, unless the Authority: The Comprehensive petitioner demonstrates that it was AGENCY: Environmental Protection Environmental Response, Compensation, and impracticable to raise these issues Agency (‘‘EPA’’). Liability Act, as amended, 42 U.S.C. 9601– during the comment period or the 9675. ACTION: Notice and request for public grounds for the issues arose after this comment. period.

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Dated: June 4, 2009. banks and nonbanking companies methods of competition. The attached Douglas E. Ballotti, owned by the bank holding company, Analysis to Aid Public Comment Acting Director, Superfund Division, Region including the companies listed below. describes both the allegations in the 5. The applications listed below, as well complaint and the terms of the consent [FR Doc. E9–14025 Filed 6–12–09; 8:45 am] as other related filings required by the order—embodied in the consent BILLING CODE 6560–50–P Board, are available for immediate agreement—that would settle these inspection at the Federal Reserve Bank allegations. indicated. The applications also will be DATES: Comments must be received on FEDERAL RESERVE SYSTEM available for inspection at the offices of or before July 6, 2009. the Board of Governors. Interested ADDRESSES: Interested parties are Change in Bank Control Notices; persons may express their views in invited to submit written comments Acquisition of Shares of Bank or Bank writing on the standards enumerated in electronically or in paper form. Holding Companies the BHC Act (12 U.S.C. 1842(c)). If the Comments should refer to‘‘Sears, File proposal also involves the acquisition of The notificants listed below have No. 082–3099’’ to facilitate the a nonbanking company, the review also organization of comments. Please note applied under the Change in Bank includes whether the acquisition of the Control Act (12 U.S.C. 1817(j)) and that your comment—including your nonbanking company complies with the name and your state—will be placed on § 225.41 of the Board’s Regulation Y (12 standards in section 4 of the BHC Act CFR 225.41) to acquire a bank or bank the public record of this proceeding, (12 U.S.C. 1843). Unless otherwise including on the publicly accessible holding company. The factors that are noted, nonbanking activities will be considered in acting on the notices are FTC website, at (http://www.ftc.gov/os/ conducted throughout the United States. publiccomments.shtm). set forth in paragraph 7 of the Act (12 Additional information on all bank U.S.C. 1817(j)(7)). Because comments will be made holding companies may be obtained public, they should not include any The notices are available for from the National Information Center immediate inspection at the Federal sensitive personal information, such as website at www.ffiec.gov/nic/. an individual’s Social Security Number; Reserve Bank indicated. The notices Unless otherwise noted, comments also will be available for inspection at date of birth; driver’s license number or regarding each of these applications other state identification number, or the office of the Board of Governors. must be received at the Reserve Bank Interested persons may express their foreign country equivalent; passport indicated or the offices of the Board of number; financial account number; or views in writing to the Reserve Bank Governors not later than July 9, 2009. indicated for that notice or to the offices credit or debit card number. Comments A. Federal Reserve Bank of also should not include any sensitive of the Board of Governors. Comments Philadelphia (Michael E. Collins, Senior health information, such as medical must be received not later than June 29, Vice President) 100 North 6th Street, records or other individually 2009. Philadelphia, Pennsylvania 19105– A. Federal Reserve Bank of identifiable health information. In 1521: addition, comments should not include Minneapolis (Jacqueline G. King, 1. First BanCapital Fund I, LP.; First Community Affairs Officer) 90 any ‘‘[t]rade secret or any commercial or BanCapital Parallel Fund I, LP.; CBCF financial information which is obtained Hennepin Avenue, Minneapolis, Partners, L.P.; MJR, LLC; MJR Financial from any person and which is privileged Minnesota 55480–0291: Group, LLL, all of Bethlehem, or confidential.* * * as provided in 1. Richard Jordahl, Fargo, North Pennsylvania; to acquire between 6.1 Dakota; to acquire voting shares of Section 6(f) of the FTC Act, 15 U.S.C. and 9.7 percent of the voting shares of 46(f), and Commission Rule 4.10(a)(2), Hatton Bancshares, Inc., Fargo, North Old Florida Bancsahres, Inc., and Dakota, and thereby indirectly acquire 16 CFR 4.10(a)(2). Comments containing thereby indirectly acquire voting shares material for which confidential voting shares of Farmers and Merchants of Old Florida National Bank, both of treatment is requested must be filed in National Bank, Hatton, North Dakota. Longwood, Florida. paper form, must be clearly labeled Board of Governors of the Federal Reserve Board of Governors of the Federal Reserve ‘‘Confidential,’’ and must comply with System, June 9, 2009. System, June 9, 2009. FTC Rule 4.9(c), 16 CFR 4.9(c).1 Robert deV. Frierson, Robert deV. Frierson, Because paper mail addressed to the Deputy Secretary of the Board. Deputy Secretary of the Board. FTC is subject to delay due to [FR Doc. E9–13923 Filed 6–12–09; 8:45 am] heightened security screening, please [FR Doc. E9–13922 Filed 6–12–09; 8:45 am] BILLING CODE 6210–01–S consider submitting your comments in BILLING CODE 6210–01–S electronic form. Comments filed in electronic form should be submitted by FEDERAL RESERVE SYSTEM using the following weblink: (https:// FEDERAL TRADE COMMISSION secure.commentworks.com/ftc- Formations of, Acquisitions by, and [File No. 082 3099] searsholdings) (and following the Mergers of Bank Holding Companies instructions on the web-based form). To Sears Holdings Management The companies listed in this notice ensure that the Commission considers Corporation; Analysis of Agreement have applied to the Board for approval, an electronic comment, you must file it Containing Consent Order to Aid pursuant to the Bank Holding Company on the web-based form at the weblink: Public Comment Act of 1956 (12 U.S.C. 1841 et seq.) 1 The comment must be accompanied by an (BHC Act), Regulation Y (12 CFR Part AGENCY: Federal Trade Commission. explicit request for confidential treatment, 225), and all other applicable statutes ACTION: Proposed Consent Agreement. including the factual and legal basis for the request, and regulations to become a bank and must identify the specific portions of the holding company and/or to acquire the SUMMARY: The consent agreement in this comment to be withheld from the public record. The request will be granted or denied by the assets or the ownership of, control of, or matter settles alleged violations of Commission’s General Counsel, consistent with the power to vote shares of a bank or federal law prohibiting unfair or applicable law and the public interest. See FTC bank holding company and all of the deceptive acts or practices or unfair Rule 4.9(c), 16 CFR 4.9(c).

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(https://secure.commentworks.com/ftc- describes the terms of the consent Respondent, information provided in searsholdings). If this Notice appears at agreement, and the allegations in the secure sessions when interacting with (http://www.regulations.gov/search/ complaint. An electronic copy of the third-party websites, shopping carts, index.jsp), you may also file an full text of the consent agreement and online accounts, and headers of electronic comment through that package can be obtained from the FTC web-based email; track certain non- website. The Commission will consider Home Page (for June 4, 2009), on the Internet-related activities taking place all comments that regulations.gov World Wide Web, at (http:// on those computers; and transmit nearly forwards to it. You may also visit the www.ftc.gov/os/actions.shtm). A paper all of the monitored information FTC website at http://www.ftc.gov/ to copy can be obtained from the FTC (excluding selected categories of filtered read the Notice and the news release Public Reference Room, Room 130–H, information) to Respondent’s remote describing it. 600 Pennsylvania Avenue, NW, computer servers. A comment filed in paper form Washington, D.C. 20580, either in The proposed order contains should include the ‘‘Sears, File No. 082 person or by calling (202) 326–2222. provisions designed to prevent 3099 ‘‘ reference both in the text and on Public comments are invited, and may Respondent from engaging in similar the envelope, and should be mailed or be filed with the Commission in either acts and practices in the future. The delivered to the following address: paper or electronic form. All comments proposed consent order defines a Federal Trade Commission, Office of the should be filed as prescribed in the ‘‘Tracking Application’’ as ‘‘any Secretary, Room H–135 (Annex D), 600 ADDRESSES section above, and must be software program or application . . . that Pennsylvania Avenue, NW, Washington, received on or before the date specified is capable of being installed on DC 20580. The FTC is requesting that in the DATES section. consumers’ computers and used by or any comment filed in paper form be sent Analysis of Agreement Containing on behalf of respondent to monitor, by courier or overnight service, if Consent Order to Aid Public Comment record, or transmit information about possible, because U.S. postal mail in the The Federal Trade Commission activities occurring on computers on Washington area and at the Commission which it is installed, or about data that is subject to delay due to heightened (‘‘FTC’’ or ‘‘Commission’’) has accepted, subject to final approval, an agreement is stored on, created on, transmitted security precautions. from, or transmitted to the computers on The Federal Trade Commission Act containing a consent order from Sears Holdings Management Corporation which it is installed.’’ Part I requires (‘‘FTC Act’’) and other laws the that Respondent, in advertising or Commission administers permit the (‘‘Respondent’’). The proposed consent order disseminating any Tracking collection of public comments to Application, disclose certain consider and use in this proceeding as (‘‘proposed order’’) has been placed on the public record for thirty (30) days for information clearly and prominently, appropriate. The Commission will prior to the downloading or installing of consider all timely and responsive receipt of comments by interested persons. Comments received during this the application, and on a separate public comments that it receives, screen from any final ‘‘end user license whether filed in paper or electronic period will become part of the public record. After thirty (30) days, the agreement’’ or similar document. That form. Comments received will be information would include all the types available to the public on the FTC Commission will again review the agreement and the comments received, of data that the Tracking Application website, to the extent practicable, at will monitor, record, or transmit; how (http://www.ftc.gov/os/ and will decide whether it should withdraw from the agreement and take the data may be used; and whether the publiccomments.shtm). As a matter of appropriate action or make final the data may be used by a third party. In discretion, the Commission makes every agreement’s proposed order. describing the types of data, Respondent effort to remove home contact This matter involves the advertising would be required specifically to information for individuals from the and dissemination from April 2007 disclose: whether the data may include public comments it receives before through January 2008 of a software information from the consumer’s placing those comments on the FTC application (the ‘‘Application’’) that interactions with a specific set of website. More information, including tracked nearly all of the Internet websites or from a broader range of routine uses permitted by the Privacy activities that took place on the Internet interaction; whether the data Act, may be found in the FTC’s privacy computers of consumers who installed may include transactions or information policy, at (http://www.ftc.gov/ftc/ it as part of Respondent’s ‘‘My SHC exchanged between the consumer and privacy.shtm). Community’’ market research program. third parties in secure sessions, FOR FURTHER INFORMATION CONTACT: Rick According to the FTC complaint, interactions with shopping baskets, Quaresima, Bureau of Consumer Respondent represented, in the process application forms, or online accounts; Protection, 600 Pennsylvania Avenue, of soliciting consumers to download and whether the information may NW, Washington, D.C. 20580, (202) and install the Application, that the include personal financial or health 326–3130. Application would track consumers’ information. Respondent must also SUPPLEMENTARY INFORMATION: Pursuant ‘‘online browsing.’’ The complaint obtain express consent from consumers to section 6(f) of the Federal Trade alleges that this claim is deceptive prior to downloading or installing a Commission Act, 38 Stat. 721, 15 U.S.C. because Respondent failed to disclose Tracking Application. 46(f), and § 2.34 the Commission Rules adequately that the Application, when Part II of the proposed order requires of Practice, 16 CFR 2.34, notice is installed, would do much more. Only in Respondent to post a clear and hereby given that the above-captioned a lengthy user license agreement did prominent notice on the consent agreement containing a consent Respondent disclose that the myshccommunity.com website advising order to cease and desist, having been Application would: monitor nearly all consumers that the types of information filed with and accepted, subject to final of the Internet behavior that occurs on the Application actually collected and approval, by the Commission, has been consumers’ computers, including transmitted to Sears and advising them placed on the public record for a period information exchanged between how to uninstall the Application. It also of thirty (30) days. The following consumers and websites other than requires Sears to provide prompt, toll- Analysis to Aid Public Comment those owned, operated, or affiliated with free, telephonic and email support to

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help affected consumers uninstall the the public record of this proceeding, Secretary, Room H–135 (Annex D), 600 Application. including on the publicly accessible Pennsylvania Avenue, NW, Washington, Part III of the proposed order requires FTC website, at (http://www.ftc.gov/os/ DC 20580. The FTC is requesting that that Respondent, to the extent it has not publiccomments.shtm). any comment filed in paper form be sent already done so, cease collecting any Because comments will be made by courier or overnight service, if data transmitted by any previously public, they should not include any possible, because U.S. postal mail in the installed Tracking Application and to sensitive personal information, such as Washington area and at the Commission destroy any previously collected data. an individual’s Social Security Number; is subject to delay due to heightened Parts IV through VII of the proposed date of birth; driver’s license number or security precautions. order require Respondent: to keep other state identification number, or The Federal Trade Commission Act copies of relevant consumer complaints foreign country equivalent; passport (‘‘FTC Act’’) and other laws the and inquiries, documents demonstrating number; financial account number; or Commission administers permit the order compliance, and advertisements credit or debit card number. Comments collection of public comments to and other documents relating to also should not include any sensitive consider and use in this proceeding as dissemination of any Tracking health information, such as medical appropriate. The Commission will Application; to provide copies of the records or other individually consider all timely and responsive order to certain of their personnel; to identifiable health information. In public comments that it receives, notify the Commission of changes in addition, comments should not include whether filed in paper or electronic corporate structure that might affect any ‘‘[t]rade secret or any commercial or form. Comments received will be compliance obligations under the order; financial information which is obtained available to the public on the FTC and to file compliance reports with the from any person and which is privileged website, to the extent practicable, at Commission. Part VIII provides that the or confidential. . . .,’’ as provided in (http://www.ftc.gov/os/ order will terminate after twenty (20) Section 6(f) of the FTC Act, 15 U.S.C. publiccomments.shtm). As a matter of years, with certain exceptions. 46(f), and Commission Rule 4.10(a)(2), discretion, the Commission makes every The purpose of this analysis is to 16 CFR 4.10(a)(2). Comments containing effort to remove home contact facilitate public comment on the material for which confidential information for individuals from the proposed order, and it is not intended treatment is requested must be filed in public comments it receives before to constitute an official interpretation of paper form, must be clearly labeled placing those comments on the FTC the agreement and proposed order or to ‘‘Confidential,’’ and must comply with website. More information, including modify in any way their terms. FTC Rule 4.9(c), 16 CFR 4.9(c).1 routine uses permitted by the Privacy By direction of the Commission. Because paper mail addressed to the Act, may be found in the FTC’s privacy Donald S. Clark, FTC is subject to delay due to policy, at (http://www.ftc.gov/ftc/ Secretary. heightened security screening, please privacy.shtm). consider submitting your comments in [FR Doc. E9–13955 Filed 6–12–09: 8:45 am] FOR FURTHER INFORMATION CONTACT: electronic form. Comments filed in BILLING CODE: 6750–01–S Sylvai Kundig or Linda Badger, FTC electronic form should be submitted by Western Region, San Francisco, 600 using the following weblink: (https:// Pennsylvania Avenue, NW, Washington, FEDERAL TRADE COMMISSION secure.commentworks.com/ftc- D.C. 20580, (415) 848–5100. altabates) (and following the [File No. 051 0260] SUPPLEMENTARY INFORMATION: Pursuant instructions on the web-based form). To to section 6(f) of the Federal Trade ensure that the Commission considers Alta Bates Medical Group; Analysis of Commission Act, 38 Stat. 721, 15 U.S.C. an electronic comment, you must file it Proposed Consent Order to Aid Public 46(f), and § 2.34 the Commission Rules on the web-based form at the weblink: Comment of Practice, 16 CFR 2.34, notice is (https://secure.commentworks.com/ftc- hereby given that the above-captioned AGENCY: Federal Trade Commission. altabates). If this Notice appears at consent agreement containing a consent ACTION: Proposed Consent Agreement. (http://www.regulations.gov/search/ order to cease and desist, having been index.jsp), you may also file an filed with and accepted, subject to final SUMMARY: The consent agreement in this electronic comment through that approval, by the Commission, has been matter settles alleged violations of website. The Commission will consider placed on the public record for a period federal law prohibiting unfair or all comments that regulations.gov of thirty (30) days. The following deceptive acts or practices or unfair forwards to it. You may also visit the Analysis to Aid Public Comment methods of competition. The attached FTC website at http://www.ftc.gov/ to describes the terms of the consent Analysis to Aid Public Comment read the Notice and the news release agreement, and the allegations in the describes both the allegations in the describing it. complaint. An electronic copy of the complaint and the terms of the consent A comment filed in paper form full text of the consent agreement order—embodied in the consent should include the ‘‘Alta Bates, File No. package can be obtained from the FTC agreement—that would settle these 051 0260‘‘ reference both in the text and Home Page (for June 4, 2009), on the allegations. on the envelope, and should be mailed World Wide Web, at (http:// DATES: Comments must be received on or delivered to the following address: www.ftc.gov/os/actions.shtm). A paper or before July 6, 2009. Federal Trade Commission, Office of the copy can be obtained from the FTC ADDRESSES: Interested parties are Public Reference Room, Room 130-H, 1 The comment must be accompanied by an invited to submit written comments explicit request for confidential treatment, 600 Pennsylvania Avenue, NW, electronically or in paper form. including the factual and legal basis for the request, Washington, D.C. 20580, either in Comments should refer to‘‘Alta Bates, and must identify the specific portions of the person or by calling (202) 326—2222. File No. 051 0260’’ to facilitate the comment to be withheld from the public record. Public comments are invited, and may The request will be granted or denied by the organization of comments. Please note Commission’s General Counsel, consistent with be filed with the Commission in either that your comment—including your applicable law and the public interest. See FTC paper or electronic form. All comments name and your state—will be placed on Rule 4.9(c), 16 CFR 4.9(c). should be filed as prescribed in the

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ADDRESSES section above, and must be and not as a group of competing Foundation Health Plan, Inc. In 2006, received on or before the date specified physicians. The complaint does not Kaiser2 was expanding a fee-for-service in the DATES section. challenge ABMG’s activities concerning product, under which covered these contracts. individuals could access physician Analysis of Agreement Containing ABMG, however, also contracts on Consent Order to Aid Public Comment services through a national third-party behalf of its member physicians with network that included ABMG The Federal Trade Commission has health plans to provide fee-for-service physicians. This expansion by Kaiser accepted, subject to final approval, an medical care. Under these arrangements, threatened ultimately to reduce ABMG’s agreement containing a proposed the payor compensates physicians or business under its capitated contracts, Consent Order with Alta Bates Medical group practices for services actually by giving Kaiser the ability to offer Group, Inc., (‘‘ABMG’’ or rendered pursuant to agreed-upon fee employers both a capitated and fee-for- ‘‘Respondent’’). The agreement settles schedules. In the absence of financial service health plan option. To impede charges that ABMG violated Section 5 of risk-sharing or clinical integration on this expansion, ABMG attempted a the Federal Trade Commission Act, 15 the part of providers, the IPA members concerted refusal to serve Kaiser fee-for- U.S.C. § 45, by fixing prices charged to are competitors for purposes of antitrust service enrollees. Although ABMG’s those offering coverage for health care analysis. It is ABMG’s negotiation of fee- refusal to deal was ultimately services (‘‘payors’’) in the Berkeley and for-service contracts that is the subject unsuccessful, the sole purpose of this Oakland, California, area and refusing to of the allegations in the Commission’s action was to impede competition in the deal with payors except on a Complaint. provision of physician services in and collectively determined basis. The The Complaint around Berkeley and Oakland, proposed Consent Order has been California. Since at least 2001, ABMG, acting as placed on the public record for 30 days ABMG did not engage in any activity a combination of its physician members, to receive comments from interested that might justify collective agreements and in conspiracy with its members, has persons. Comments received during this on the prices its members would accept acted to restrain competition with period will become part of the public for their services. For example, the respect to fee-for-service contracts by, record. After 30 days, the Commission physicians in ABMG have not clinically among other things, facilitating, entering will review the agreement and the or financially integrated their practices into, and implementing agreements, comments received, and will decide to create efficiencies sufficient to justify express or implied, to fix the prices and whether it should withdraw from the their acts and practices. As a agreement or make the proposed other terms at which they would consequence, the Respondent’s actions Consent Order final. contract with payors; to engage in have restrained price and other forms of The purpose of this analysis is to collective negotiations over terms and facilitate public comment on the conditions of dealing with payors; and competition among physicians in the proposed Consent Order. The analysis is to have ABMG members refrain from Berkeley and Oakland, California, area not intended to constitute an official negotiating individually with payors or and thereby harmed consumers interpretation of the agreement and contracting on terms other than those (including health plans, employers, and proposed Consent Order or to modify approved by ABMG. This type of individual consumers) by increasing the their terms in any way. Further, the collective conduct by competitors is prices for physician services. proposed Consent Order has been inherently suspect under the antitrust The Proposed Consent Order entered into for settlement purposes laws. The proposed Consent Order is only and does not constitute an At times, however, IPAs will act as a designed to prevent the continuance admission by Respondent that it conduit between physician members and recurrence of the illegal conduct violated the law or that the facts alleged and health plans regarding fee-for- alleged in the complaint while it allows in the Complaint (other than service contracts to facilitate the ABMG to engage in legitimate, joint jurisdictional facts) are true. contracting process. Under this model, conduct. The proposed Consent Order the IPA merely acts as a messenger and Alta Bates Medical Group, Inc. does not affect ABMG’s activities in does not negotiate the terms of the contracting with the payors on a ABMG is a multi-specialty contract. independent practice association Although claiming to employ a lawful capitated basis. (‘‘IPA’’) comprised of multiple, messenger arrangement, ABMG, on Paragraph II.A prohibits Respondent independent medical practices serving behalf of its physician members, instead from entering into or facilitating any the Berkeley and Oakland, California orchestrated collective negotiations for agreement between or among any health area. It has a total of approximately 600 fee-for-service contracts. Specific acts by care providers: (1) to negotiate on behalf physician members, of which ABMG that are alleged in the complaint of any physician with any payor; (2) to approximately 200 are devoted to are: making proposals and counter- refuse to deal, or threaten to refuse to primary care. Since its formation, proposals, as well as accepting or deal with any payor; (3) regarding any ABMG has negotiated group contracts rejecting offers, without consulting with term, condition, or requirement upon with payors under which it receives its individual physician members which any physician deals, or is willing capitated (per member per month) regarding the prices they unilaterally to deal, with any payor, including, but payments. These contracts shift the risk would accept, and without transmitting not limited to price terms; or (4) not to of patient illness to the IPA by the payors’ offers to its individual deal individually with any payor, or not specifying that the health plan will pay physician members until ABMG had to deal with any payor other than the IPA a flat monthly fee for each approved the negotiated prices. through ABMG. enrollee, with almost no regard for The complaint also alleged a The other parts of Paragraph II patient utilization. This type of concerted refusal to deal intended to reinforce these general prohibitions. contracting is a form of financial impede competition by one of ABMG’s 2 Kaiser is a trade name for an association of three integration, so for anititrust purposes, major competitors, the Permanente entities: Kaiser Foundation Health Plan, Inc.; Kaiser the IPA is treated as a single entity for Medical Group, which provides Foundation Hospitals; and the Permanente Medical purposes of these contract negotiations, physician services exclusively to Kaiser Groups.

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Paragraph II.B prohibits the Respondent services, at any time since January 1, DEPARTMENT OF HEALTH AND from facilitating exchanges of 2001. HUMAN SERVICES information between health care Paragraph VII.B requires ABMG to Administration for Children and providers concerning whether, or on terminate, without penalty, pre-existing Families what terms, to contract with a payor. payer contracts that it had entered into Paragraph II.C bars attempts to engage in since 2001, at the earlier of (1) receipt any action prohibited by Paragraph II.A Submission for OMB Review; by ABMG of a written request for or II.B, and Paragraph II.D proscribes Comment Request termination by the payer; or (2) the encouraging, suggesting, advising, Title: Low Income Home Energy pressuring, inducing, or attempting to termination date, renewal date, or anniversary date of the contract. This Assistance Program LIHEAP Leveraging induce any person to engage in any Report. action that would be prohibited by provision is intended to eliminate the effects of ABMG’s illegal collective OMB No.: 0970–0121. Paragraphs II.A through II.C. Description: The LIHEAP leveraging behavior. The payer can delay the As in other Commission orders incentive program rewards LIHEAP termination for up to one year by addressing health care providers’ grantees that have leveraged non-federal making a written request to ABMG. collective bargaining with health care home energy resources for low-income payors, certain kinds of agreements are Paragraph VII.D contains three-year households. The LIHEAP leveraging excluded from the general bar on joint notification provisions relating to future report is the application for leveraging negotiations. Paragraph II does not contact with physicians, payors, incentive funds that these LIHEAP preclude ABMG from engaging in management and staff. This provision grantees submit to the Department of conduct that is reasonably necessary to requires ABMG to distribute a copy of Health and Human Services for each form or participate in legitimate the Complaint and Consent Order to fiscal year in which they leverage ‘‘qualified risk-sharing’’ or ‘‘qualified each physician who begins participating countable resources. Participation in the clinically-integrated’’ joint in ABMG; each payor who contacts leveraging incentive program is arrangements, as defined in the ABMG regarding the provision of voluntary and is described at 45 CFR proposed Consent Order. Also, physician services; and each person 96.87. The LIHEAP leveraging report Paragraph II would not bar agreements who becomes an officer, director, obtains information on the resources that only involve physicians who are manager, or employee for five years after leveraged by LIHEAP grantees each part of the same medical group practice, the date on which the Consent Order fiscal year (as cash, discounts, waivers, defined in Paragraph I.B, because it is and in-kind); the benefits provided to intended to reach agreements between becomes final. In addition, Paragraph VII.D requires ABMG to publish a copy low-income households by these and among independent competitors. resources (for example, as fuel and of the Complaint and Consent Order, Paragraphs III through VI require payments for fuel, as home heating and annually, in any official publication that ABMG to notify the Commission before cooling equipment, and as it sends to its participating physicians. it initiates certain contacts regarding weatherization materials and contracts with payors. Paragraphs III Paragraphs VII.E and VIII–IX impose installation); and the fair market value and IV apply to arrangements under various obligations on ABMG to report of these resources/benefits. which ABMG would be acting as a or to provide access to information to HHS needs this information in order messenger on behalf of its member the Commission to facilitate monitoring to carry out statutory requirements for physicians. Paragraphs V and VI discuss its compliance with the Consent Order. administering the LIHEAP leveraging arrangements under which ABMG plans Pursuant to Paragraph X, the incentive program, to determine to achieve financial or clinical proposed Consent Order will expire in countability and valuation of grantees integration. 20 years from the date it is issued. leveraged non-federal home energy Paragraph VII.A requires ABMG to resources, and to determine grantees send a copy of the Complaint and By direction of the Commission. shares of leveraging incentive funds. Consent Order to its physician Donald S. Clark, HHS proposes to request a three-year members, its management and staff, and extension of OMB approval for the Secretary. any payors who communicated with currently approved LIHEAP leveraging ABMG, or with whom ABMG [FR Doc. E9–13956 Filed 6–12–09: 8:45 am] report information collection. communicated, with regard to any BILLING CODE: 6750–01–S Respondents: State, Local or Tribal interest in contracting for physician Governments.

ANNUAL BURDEN ESTIMATES

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

LIHEAP Leveraging Report ...... 70 1 38 2,660

Estimated Total Annual Burden Services, 370 L’Enfant Promenade, SW., OMB Comment: OMB is required to Hours: 2,660 Washington, DC 20447, Attn: ACF make a decision concerning the Additional Information: Copies of the Reports Clearance Officer. All requests collection of information between 30 proposed collection may be obtained by should be identified by the title of the and 60 days after publication of this writing to the Administration for information collection. E-mail address: document in the Federal Register. Children and Families, Office of [email protected]. Therefore, a comment is best assured of Administration, Office of Information having its full effect if OMB receives it

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within 30 days of publication. Written and the healthcare industry believe that comments regarding this burden comments and recommendations for the the availability to the facility of the type estimate or any other aspect of this proposed information collection should of records and general content of collection of information, including any be sent directly to the following: Office records is standard medical practice and of the following subjects: (1) The of Management and Budget, Paperwork is necessary in order to ensure the well- necessity and utility of the proposed Reduction Project, Fax: 202–395–7245, being and safety of patients and information collection for the proper Attn: Desk Officer for the professional treatment accountability. performance of the agency’s functions; Administration for Children and Form Number: CMS–10266 (OMB# (2) the accuracy of the estimated Families. 0938–New); Frequency: Yearly; Affected burden; (3) ways to enhance the quality, Dated: June 10, 2009. Public: Business or other for-profits and utility, and clarity of the information to be collected; and (4) the use of Janean Chambers, Not-for-profit institutions; Number of Respondents: 514; Total Annual automated collection techniques or Reports Clearance Officer. Responses: 3,270; Total Annual Hours: other forms of information technology to [FR Doc. E9–13985 Filed 6–12–09; 8:45 am] 9,334. minimize the information collection BILLING CODE 4184–01–P To obtain copies of the supporting burden. statement and any related forms for the 1. Type of Information Collection proposed paperwork collections Request: Extension without change of a DEPARTMENT OF HEALTH AND referenced above, access CMS Web site currently approved collection; Title of HUMAN SERVICES address at http://www.cms.hhs.gov/ Information Collection: Reconciliation PaperworkReductionActof1995, or e- of State Invoice and Prior Quarter Centers for Medicare & Medicaid Adjustment Statement; Use: Section Services mail your request, including your address, phone number, OMB number, 1927 of the Social Security Act requires [Document Identifier: CMS–10266] and CMS document identifier, to drug manufacturers to enter into and [email protected], or call the have in effect a rebate agreement with Agency Information Collection Reports Clearance Office on (410) 786– CMS in order for States to receive Activities: Submission for OMB 1326. funding for drugs dispensed to Review; Comment Request To be assured consideration, Medicaid recipients. Drug manufacturers must complete and AGENCY: comments and recommendations for the Centers for Medicare & submit to States the 304 form (the Medicaid Services, HHS. proposed information collections must be received by the OMB desk officer at Reconciliation of State Invoice Form) to In compliance with the requirement explain any rebate payment adjustments of section 3506(c)(2)(A) of the the address below, no later than 5 p.m. on July 15, 2009. for the current quarter, and complete Paperwork Reduction Act of 1995, the and submit the 304A form (the Prior Centers for Medicare & Medicaid OMB Human Resources and Housing Quarter Adjustment Statement Form) to Services (CMS), Department of Health Branch, Attention: OMB Desk Officer, States to explain rebate payment and Human Services, is publishing the New Executive Office Building, Room adjustments to any prior quarters. Both following summary of proposed 10235, Washington, DC 20503, Fax forms are used to reconcile drug rebate collections for public comment. Number: (202) 395–6974. payments made by manufacturers with Interested persons are invited to send Dated: June 5, 2009. the State invoices of rebates due. Form comments regarding this burden Michelle Shortt, Number: CMS–304/304a (OMB#: 0938– estimate or any other aspect of this Director, Regulations Development Group, 0676); Frequency: Reporting—Quarterly; collection of information, including any Office of Strategic Operations and Regulatory Affected Public: Private Sector: Business of the following subjects: (1) The Affairs. or other for profits; Number of necessity and utility of the proposed [FR Doc. E9–13947 Filed 6–12–09; 8:45 am] Respondents: 570; Total Annual information collection for the proper BILLING CODE 4120–01–P Responses: 3820; Total Annual Hours: performance of the Agency’s function; 141,080. (For policy questions regarding (2) the accuracy of the estimated this collection contact Cindy Bergin at burden; (3) ways to enhance the quality, DEPARTMENT OF HEALTH AND 410–786–1176. For all other issues call utility, and clarity of the information to HUMAN SERVICES 410–786–1326.) be collected; and (4) the use of 2. Type of Information Collection automated collection techniques or Centers for Medicare & Medicaid Request: New Collection; Title of other forms of information technology to Services Information Collection: State Plan Pre- minimize the information collection Print to Implement Required Dental burden. [Document Identifier: CMS–304/304a, CMS– Benefits Pursuant of Children’s Health 10288, CMS–10289 and CMS–1450 (UB–04)] 1. Type of Information Collection Insurance Program Reauthorizing Act Request: New collection; Title of Agency Information Collection (CHIPRA) 2009; Use: Section 501 of Information Collection: Conditions of Activities: Proposed Collection; CHIPRA 2009 amends XXI and requires Participation: Requirements for Comment Request that ‘‘child health assistance provide to Approval and Reapproval of Transplant a targeted low-income child shall Centers to Perform Organ Transplants AGENCY: Centers for Medicare & include coverage of dental services and Supporting Regulations in 42 CFR Medicaid Services, HHS. necessary to prevent disease and 482.74, 482.94, 482.100, 482.102, In compliance with the requirement promote oral health, restore oral 488.61; Use: The Conditions of of section 3506(c)(2)(A) of the structures to health and function, and Participation and accompanying Paperwork Reduction Act of 1995, the treat emergency conditions.’’ States that requirements specified in the Centers for Medicare & Medicaid provide coverage in a separate regulations are used by our surveyors as Services (CMS) is publishing the Children’s Health Insurance Program a basis for determining whether a following summary of proposed may choose between two methods of transplant center qualifies for approval collections for public comment. providing the dental services required or re-approval under Medicare. CMS Interested persons are invited to send in Section 501. The State may define the

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services in the dental benefit package Information Collection: Medicare Dated: June 5, 2009. and demonstrate that it includes all the Uniform Institutional Provider Bill and Michelle Shortt, required services. Alternatively, the Supporting Regulations in 42 CFR Director, Regulations Development Group, State may provide a dental benefit 424.5; Use: Section 42 CFR 424.5(a)(5) Office of Strategic Operations and Regulatory package that is equivalent to one of the requires providers of services to submit Affairs. three benchmark packages described in a claim for payment prior to any [FR Doc. E9–13944 Filed 6–12–09; 8:45 am] the statute. In order to implement one Medicare reimbursement. Charges billed BILLING CODE 4120–01–P of these options and comply with the are coded by revenue codes. The bill statute, States must amend their State specifies diagnoses according to the Plan using the State Plan pre-print. International Classification of Diseases, DEPARTMENT OF HEALTH AND Form Number: CMS–10288 (OMB #: Ninth Edition (ICD–9–CM) code. HUMAN SERVICES 0938—NEW); Frequency: Reporting Inpatient procedures are identified by One-time; Affected Public: State, Local, ICD–9–CM codes, and outpatient Indian Health Service or Tribal Governments; Number of procedures are described using the CMS [Funding Opportunity Number: HHS–2009– Respondents: 51; Total Annual Common Procedure Coding System IHS–UIHP–0003] Responses: 51; Total Annual Hours: (HCPCS). These are standard systems of 1530. (For policy questions regarding identification for all major health Office of Urban Indian Health this collection contact Nancy insurance claims payers. Submission of Programs Goetschius at 410–786–0707. For all information on the CMS–1450 permits Announcement Type: Competitive other issues call 410–786–1326.) Medicare intermediaries to receive 3. Type of Information Collection Targeted Solicitation. consistent data for proper payment. Catalog of Federal Domestic Request: New Collection; Title of Form Numbers: CMS–1450 (UB–04) Information Collection: Optional Dental- Assistance Number: 93.193. (OMB#: 0938–0997); Frequency: Application Deadline Date: July 15, only Supplemental Coverage State Plan Reporting—On occasion; Affected Amendment Template; Use: CHIPRA 2009. Public: Not-for-profit institutions, Review Date: July 30, 2009. 2009 provides States with an option to Business or other for-profit; Number of provide supplemental dental-only Earliest Anticipated Start Date: Respondents: 53,111; Total Annual August 3, 2009. coverage to children who would be Responses: 181,909,654; Total Annual eligible to enroll in the State’s Hours: 1,567,455. (For policy questions I. Funding Opportunity Description Children’s Health Insurance Program regarding this collection contact Matt (CHIP), except that they already have The Indian Health Service (IHS), Klischer at 410–786–7488. For all other Office of Urban Indian Health Programs health insurance coverage, either issues call 410–786–1326.) through a group health plan or employer (OUIHP) announces a limited targeted sponsored insurance. If the health To obtain copies of the supporting solicitation for the 4-in-1 Title V grants insurance plan the child is enrolled in statement and any related forms for the responding to an Office of HIV/AIDS does not provide dental benefits, the proposed paperwork collections Policy (OHAP), Minority AIDS State may provide the child with the referenced above, access CMS’ Web site (Acquired Immunodeficiency same State-defined dental package or at http://www.cms.hhs.gov/ Syndrome) Initiative (MAI). This benchmark benefit plan provided to PaperworkReductionActof1995, or e- program is authorized under the children who are eligible for the entire mail your request, including your authority of the Snyder Act and 25 CHIP benefit package. The child will address, phone number, OMB number, U.S.C. 1652, 1653 of the Indian Health only be entitled to the dental services and CMS document identifier, to Care Improvement Act, Public Law 94– provided to other CHIP children. [email protected], or call the 437, as amended. This program is In order to choose this option, State Reports Clearance Office on (410) 786– described at 93.193 in the Catalog of must comply with all other 1326. Federal Domestic Assistance (CFDA). requirements of the statute regarding In commenting on the proposed This competitive targeted solicitation cost sharing, income eligibility level, information collections please reference seeks to expand OUIHP’s existing Title absence of a waiting list for their entire the document identifier or OMB control V grants to increase the number of CHIP program (not just for dental number. To be assured consideration, American Indian/Alaska Natives (AI/ coverage), and not providing more comments and recommendations must AN) with awareness of his/her HIV favorable treatment to children eligible be submitted in one of the following status. This will provide routine and/or for the supplemental dental benefit ways by August 14, 2009: rapid HIV screening, prevention, pre- under this option. In order to implement and post-test counseling (when this option States must amend their 1. Electronically. You may submit appropriate). Enhancement of urban State Plan using the Supplemental your comments electronically to http:// Indian health program HIV/AIDS Dental Benefits State Plan Amendment www.regulations.gov. Follow the activities is necessary to reduce the Template. Form Number: CMS–10289 instructions for ‘‘Comment or incidence of HIV/AIDS in the urban (OMB#: 0938—NEW); Frequency: Submission’’ or ‘‘More Search Options’’ Indian health communities by Reporting One-time; Affected Public: to find the information collection increasing access to HIV related State, local, or Tribal Governments; document(s) accepting comments. services, reducing stigma, and making Number of Respondents: 51; Total 2. By regular mail. You may mail testing routine. Annual Responses: 51; Total Annual written comments to the following These grants and supplements will be Hours: 1020. (For policy questions address: CMS, Office of Strategic used to enhance HIV testing, including regarding this collection contact Nancy Operations and Regulatory Affairs, rapid testing and/or standard HIV Goetschius at 410–786–0707. For all Division of Regulations Development, antibody testing and to provide a more other issues call 410–786–1326.) Attention: Document Identifier/OMB focused effort to address HIV/AIDS 4. Type of Information Collection Control Number (CMS–10078), Room prevention by targeting some of the Request: Extension of a currently C4–26–05, 7500 Security Boulevard, largest urban Indian populations in the approved collection; Title of Baltimore, Maryland 21244–1850. United States. The grantees will attempt

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to provide routine HIV screening for individuals as possible; however, each The 15 page narrative does not include adults as per 2006 Centers for Disease funded program’s attempted goal will be the work plan, standard forms, table of Control and Prevention (CDC) to increase screening to a minimum of contents, budget, budget justifications, guidelines, pre- and post-test counseling 300 AI/AN tested per program funded narratives, and/or other appendix items. (when appropriate). These grants will be (adjusted due to variations in size of Public Policy Requirements: All used to identify best practices to facility and user population), for a total Federal-wide public policies apply to enhance HIV testing, including rapid of 4,500 AI/AN tested. This reflects an IHS grants with the exception of the testing and/or conventional HIV MAI requirement to maintain the actual Lobbying and Discrimination public antibody testing, and to provide a more cost per MAI Fund HIV testing client policy. focused effort to address HIV/AIDS below the medical care inflation rate. 3. Submission Dates and Times: prevention in AI/AN populations in the This does not include counts of re- The application from each urban United States. testing individuals in the same year. Indian organization must be submitted The nature of these projects will Each program shall also collect electronically through Grants.gov by require collaboration with the OUIHP evidence, as part of the testing process, 12:00 midnight Eastern Standard Time to: (1) Coordinate activities with the IHS to document lessons learned, best (EST), July 15, 2009. National HIV Program; (2) participate in practices, and barriers to increased If technical challenges arise and the projects in other operating divisions of routine HIV screening within this urban Indian organizations are unable to the Department of Health and Human population. successfully complete the electronic Services (HHS) such as the CDC, application process, each organization Substance Abuse and Mental Health III. Eligibility Information must contact Michelle G. Bulls, Grants Services Administration, Health 1. Eligible Applicants: urban Indian Policy Staff (GPS) fifteen days prior to Resource and Services Administration organizations, as defined by 25 U.S.C. the application deadline and advise of and the Office of HIV/AIDS Policy; and 1603(h), and limited to urban Indian the difficulties that they are (3) submit and share anonymous, non- organizations which meet the following experiencing. Each organization must identifiable data on HIV/AIDS testing, criteria: obtain prior approval, in writing (e- treatment, and education. • Received State certification to mails are acceptable), from Ms. Bulls These grants are also intended to conduct HIV rapid testing (where allowing the paper submission. If encourage development of sustainable, required); submission of a paper application is routine HIV screening programs in • Health professionals and staff have requested and approved, the original urban facilities that are aligned with been trained in the HIV/AIDS screening and two copies may be sent to the 2006 CDC HIV Screening guidelines tools, education, prevention, appropriate grants contact that is listed (http://www.cdc.gov/mmwr/preview/ counseling, and other interventions for in Section IV.1 above. Applications not mmwrhtml/rr5514a1.htm). Key features AI/ANs; submitted through Grants.gov, without include streamlined consent and • Developed programs to address an approved waiver, may be returned to counseling procedures (verbal consent, community and group support to the organizations without review or opt-out), a clear HIV screening policy, sustain risk—reduction skills; consideration. identifying and implementing any • Implemented HIV/AIDS quality A late application will be returned to necessary staff training, community assurance and improvement programs; the organization without review or awareness, and a clear followup and consideration. protocol for HIV positive results • Must provide proof of non-profit 4. Intergovernmental Review: including linkages to care. Grantees may status with the application. Executive Order 12372 requiring choose to bundle HIV tests with STD 2. Cost Sharing or Matching—This intergovernmental review is not screening. program does not require matching applicable to this program. funds or cost sharing. 5. Funding Restrictions: II. Award Information 3. If the application budget exceeds A. Pre-award costs are allowable Type of Award: Title V HIV/AIDS the award amount, it will not be pending prior approval from the New Grants. considered for review. awarding agency. However, in Estimated Funds Available: The total accordance with 45 CFR part 74, all pre- IV. Application and Submission amount identified for Fiscal Year (FY) award costs are incurred at the Information 2009 is five awards totaling $150,000. recipient’s risk. The awarding office is The award is for three years in duration. 1. Applicant package may be found in under no obligation to reimburse such Individual awards must include one Grants.gov (http://www.grants.gov) or at: costs if for any reason any of the urban project evaluation and provide http://www.ihs.gov/ Indian organizations do not receive an administrative support of the project. NonMedicalPrograms/gogp/ award or if the award to the recipient is Awards under this announcement and gogp_funding.asp. less than anticipated. all future awards are subject to the Questions regarding the electronic B. The available funds are inclusive of availability of funds. IHS has no application process may be directed to direct and appropriate indirect costs. obligation to provide future funding for Michelle G. Bulls at (301) 443–6290. C. Only one new grant will be this project. 2. Content and Form of Application awarded to each organization. Anticipated Number of Awards: Five Submission: D. IHS will acknowledge receipt of grant awards will be made under the • Be single spaced. the application by e-mail. program. • Be typewritten. 6. Other Submission Requirements: Project Period: September 1, 2009– • Have consecutively numbered Electronic Submission—Each urban August 31, 2010. pages. Indian organization must submit Award Amount: $150,000. • Use black type not smaller than 12 through Grants.gov. However, should characters per one inch. any technical challenges arise regarding A. Requirements of Recipient Activities • Contain a narrative that does not the submission, please contact In FY 2009, each grantee’s attempted exceed 15 typed pages that includes the Grants.gov Customer Support at 1–800– goal shall include screening as many other submission requirements below. 518–4726 or [email protected]. The

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Contact Center hours of operation are organization to not wait until the number. Please use the number listed Monday-Friday from 7 a.m. to 9 p.m. deadline date to begin the application above to investigate whether or not your EST. If you require additional process as the registration process for organization has a DUNS number. assistance, please call (301) 443–6290 CCR and Grants.gov could take up to Registration with the CCR is free of and identify the need for assistance fifteen working days. charge. regarding your Grants.gov application. • To use Grants.gov, each urban Applicants may register by calling 1– Your call will be transferred to the Indian organization must have a Data 888–227–2423. Please review and appropriate grants staff member. Each Universal Numbering System (DUNS) complete the CCR Registration organization must seek assistance at Number and register in the CCR. Each Worksheet located on http:// least fifteen days prior to the application organization should allow a minimum www.ccr.gov. deadline. If an organization does not of ten working days to complete CCR More detailed information regarding adhere to the timelines for Central registration. See below on how to apply. these registration processes can be Contractor Registry (CCR), Grants.gov • Each organization must submit all found at Grants.gov. registration and request timely documents electronically, including all assistance with technical issues, a paper information typically included on the V. Application Review Information application submission may not be SF–424 and all necessary assurances 1. Criteria granted. and certifications. The instructions for preparing the To submit an application • Please use the optional attachment application narrative also constitute the electronically, please use the Grants.gov feature in Grants.gov to attach evaluation criteria for reviewing and Web site. Download a copy of the additional documentation that may be scoring the application. Weights application package on the Grants.gov requested by IHS. Web site, complete it offline and then • Each organization must comply assigned to each section are noted in upload and submit the application via with any page limitation requirements parentheses. The narrative should the Grants.gov site. You may not e-mail described in the program include all prior years of activity; an electronic copy of a grant application announcement. information for multi-year projects to IHS. • After you electronically submit should be included as an appendix (see Please be reminded of the following: your application, you will receive an E. ‘‘Categorical Budget and Budget • Under the new IHS application automatic acknowledgment from Justification’’) at the end of this section submission requirements, paper Grants.gov that contains a Grants.gov for more information. The narrative applications are not the preferred tracking number. The DGO will retrieve should be written in a manner that is method. However, if any urban Indian your application from Grants.gov. The clear to outside reviewers unfamiliar organization has technical problems DGO will notify each organization by e- with prior related activities of the urban submitting the application on-line, mail that the application has been Indian organization. It should be well please contact Grants.gov Customer received. organized, succinct, and contain all Support at: http://www.grants.gov/ • You may access the electronic information necessary for reviewers to CustomerSupport. application for this program on understand the project fully. • Upon contacting Grants.gov, obtain Grants.gov. A. Understanding of the Need and • a Grants.gov tracking number as proof of You may search for the Necessary Capacity (15 points) contact. The tracking number is helpful downloadable application package if there are technical issues that cannot using either the CFDA number or the 1. Understanding of the Problem be resolved and a waiver request from Funding Opportunity Number. Both a. Define the project target population, Grants Policy must be obtained. If any numbers are identified in the heading of identify their unique characteristics, of the organizations are still unable to this announcement. and describe the impact of HIV on the successfully submit the application • To receive an application package, population. online, please contact Michelle G. Bulls, each urban Indian organization must b. Describe the gaps/barriers in HIV GPS, at (301) 443–6290 at least fifteen provide the Funding Opportunity testing for the population. days prior to the application deadline to Number: HHS–2009–IHS–UIHP–0003. c. Describe the unique cultural or advise of the difficulties you have E-mail applications will not be sociological barriers of the target experienced. accepted under this announcement. population to adequate access for the • If it is determined that a formal described services. waiver is necessary, each organization DUNS Number must submit a request, in writing (e- Applicants are required to have a 2. Facility Capability mails are acceptable), to DUNS number to apply for a grant or a. Briefly describe your clinic [email protected] providing a cooperative agreement from the Federal programs and services and how this justification for the need to deviate from Government. The DUNS number is a initiative will assist to commence, the standard electronic submission nine-digit identification number, which compliment and/or expand existing process. Upon receipt of approval, a uniquely identifies business entities. efforts. hard-copy application package must be Obtaining a DUNS number is easy and b. Describe your clinic’s ability to downloaded from Grants.gov and sent there is no charge. To obtain a DUNS conduct this initiative through: directly to the Division of Grants number, access http:// • Your clinic’s present resources. Operations (DGO), 801 Thompson www.dunandbradstreet.com or call 1– • Collaboration with other providers. Avenue, TMP, 360, Rockville, MD 866–705–5711. Interested parties may • Partnerships established to accept 20852 by July 15, 2009. wish to obtain their DUNS number by referrals for counseling, testing, and • Upon entering the Grants.gov Web phone to expedite the process. referral and confirmatory blood tests site, there is information available that Applications submitted electronically and/or social services for individuals outlines the requirements for each urban must also be registered with the CCR. A who test HIV positive. Indian organization regarding electronic DUNS number is required before CCR • Linkages to treatment and care: submission of application and hours of registration can be completed. Many partnerships established to refer out of operation. We strongly encourage each organizations may already have a DUNS your clinic for specialized treatment,

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care, confirmatory testing (if applicable) m. Describe how the program will 2. Describe the ability of the and counseling services. attempt to streamline procedures so as organization to manage the proposed to reduce the overall cost per test project. Include information regarding B. Work Plan (40 points) administered. similarly sized projects in scope and 1. Project Goal and Objectives financial assistance as well as other C. Project Evaluation (20 points) Address all of the following program grants and projects successfully goals and objectives of the project. The 1. Evaluation Plan completed. objectives must be specific as well as 3. Describe what equipment (i.e., quantitatively and qualitatively The grantee shall provide a plan for monitoring and evaluating the HIV phone, Web sites, etc.) and facility space measurable to ensure achievement of (i.e., office space) will be available for goal(s). rapid test and/or standard HIV antibody • test. use during the proposed project. Include Implementation Plan information about any equipment not a. Identify the proposed program 2. Reporting Requirements currently available that will be activities and explain how these The following quantitative and purchased throughout the agreement. activities will increase and sustain HIV 4. List key personnel who will work screening. qualitative measures shall be addressed: • Required Quantitative Indicators on the project. b. Describe Policy and Procedure • Identify existing personnel and new changes anticipated for implementation (quantitative) a. Number of tests performed and program staff to be hired. that include: • In the appendix, include position (1) Support of the 2006 CDC Revised number of test refusals. b. Number of clients learning of their descriptions and resumes for all key HIV Testing Recommendations. personnel. Position descriptions should (2) Community awareness. serostatus for the first time via this (3) Age ranges of persons to be testing initiative (unique patients, non- clearly describe each position and screened. repeated tests). duties indicating desired qualifications, (4) Bundling of HIV testing with STD c. Number of reactive tests and experience, and requirements related to tests. confirmed seropositive (actual and the proposed project and how they will (5) Type of HIV Screen/Test (Rapid, proportion). be supervised. Resumes must indicate Conventional, Western Blot) and who d. Number of clients linked to care/ that the proposed staff member is will perform test (in-house, send-out). treatment or referrals for prevention qualified to carry out the proposed c. Provide a clear timeline with counseling. project activities and who will quarterly milestones for project e. Number of individuals receiving determine if the work of a contractor is implementation. their confirmatory test results. acceptable. d. Certify that the program identified • Required Qualitative Information • Note who will be writing the and agreed to follow the state a. Measures in place to protect progress reports. • regulations for HIV testing in their state confidentiality. If a position is to be filled, indicate and how the clinic will follow their b. Identify barriers of implementation that information on the proposed state reporting guidelines for as well as lessons learned for best position description. • seropositive results. practices to share with other IHS/Urban If the project requires additional e. Describe how individuals will be or tribal entities. personnel beyond those covered by the selected for testing to identify selection c. Sustainability plan and measures of supplemental grant, (i.e., Information criteria and which group(s)—if any— ongoing testing in future years, after Technology support, volunteers, will you be able, via state regulations to grant money has been spent. interviewers, etc.), note these and offer testing in an opt-out format. • Other quantitative indicators may address how these positions will be f. Describe how the program will be collected to improve clinic processes filled and, if funds are required, and the ensure that clients receive their test and add to information reported, source of these funds. results, particularly clients who test however they are not required reporting • If personnel are to be only partially positive. measures: funded by this supplemental grant, g. Describe how the program will a. Number of clients who refused due indicate the percentage of time to be ensure that individuals with initial HIV- to prior knowledge of status. allocated to this project and identify the positive test results will receive b. Number of rapid versus standard resources used to fund the remainder of confirmatory tests. If you do not provide antibody test. the individual’s salary. confirmatory HIV testing, you must c. Number of false negatives and/or positives after confirmatory testing. E. Categorical Budget and Budget provide a letter of intent or Justification (15 points) Memorandum of Understanding with an d. Develop a plan for obtaining external laboratory documenting the knowledge, attitudes, and behavior data This section should provide a clear process through which initial HIV- pending official approval of patient estimate of the project program costs positive test results will be confirmed. survey. and justification for expenses for the h. Describe the program strategies to entire grant period. The budget and D. Organizational Capabilities and budget justification should be consistent linking potential seropositive patients to Qualifications (10 points) care. with the tasks identified in the work i. Describe the program quality This section outlines the broader plan. The budget focus should be on assurance strategies. capacity of the organization to complete routinizing and sustaining HIV testing j. Describe how the program will the project outlined in the work plan. It services as well as reducing the cost per train, support and retain staff providing includes the identification of personnel person tested. counseling and testing. responsible for completing tasks and the 1. Categorical budget (Form SF 424A, k. Describe how the program will chain of responsibility for successful Budget Information Non-Construction ensure client confidentiality. completion of the project outlined in the Programs) completing each of the l. Describe how the program will work plan. budget periods requested. ensure that its services are culturally 1. Describe the organizational 2. Narrative justification for all costs, fluent and relevant. structure. explaining why each line item is

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necessary or relevant to the proposed The Notice of Award (NoA) will be of expiration of the budget/project project. Include sufficient details to initiated by the DGO and will be mailed period. facilitate the determination of cost via postal mail to the urban Indian C. Financial Status Report. Semi- allowability. organization. The NoA will be signed by annual financial status reports must be 3. Budget justification should include the Grants Management Officer and this submitted within 30 days of the end of a brief program narrative for the second is the authorizing document under the half year. Final financial status and third years. which funds are dispersed. The NoA, reports are due within 90 days of 4. If indirect costs are claimed, the legally binding document, will serve indicate and apply the current as the official notification of the grant expiration of the budget period. negotiated rate to the budget. Include a award and will reflect the amount of Standard Form 269 (long form) will be copy of the rate agreement in the Federal funds awarded for the purpose used for financial reporting. appendix. of the grant, the terms and conditions of D. Participation in a minimum of two 2. Review and Selection Process the award, the effective date of the teleconferences. award, and the budget/project period. In addition to the above criteria/ Teleconferences will be required 2. Administrative Requirements: semi-annually (unless further followup requirements, the application will be Grants are administered in accordance considered according to the following: is needed) for Technical Assistance and with the following documents: information to be provided and progress A. The submission deadline: July 15, • This Program Announcement. 2009. Applications submitted in • to be shared among grantees with the 45 CFR part 74, ‘‘Uniform OUIHP and National HIV Program advance of or by the deadline and Administrative Requirements for Consultant. verified by the postmark will undergo a Awards to Institutions of Higher preliminary review to determine that: Failure to submit required reports • Education, Hospitals, Other Nonprofit The applicant is eligible in Organizations, and Commercial within the time allowed may result in accordance with this grant Organizations.’’ suspension or termination of an active announcement. • Grants Policy Guidance: HHS agreement, withholding of additional • The application is not a duplication Grants Policy Statement, January 2007. awards for the project, or other of a previously funded project. • enforcement actions such as • The application narrative, forms, ‘‘Non-Profit Organizations’’ (Title 2 Part 230). withholding of payments or converting and materials submitted meet the • requirements of the announcement Audit Requirements: OMB Circular to the reimbursement method of allowing the review panel to undertake A–133, ‘‘Audits of States, Local payment. Continued failure to submit an in-depth evaluation; otherwise, it Governments, and Non-Profit required reports may result in one or may be returned. Organizations.’’ both of the following: (1) The B. The Objective Review date is July 3. Indirect Costs: This section applies imposition of special award provisions; 30, 2009. to indirect costs in accordance with and (2) the non-funding or non-award of The applications that are complete, HHS Grants Policy Statement, Part II– other eligible projects or activities. This responsive, and conform to this program 27. The IHS requires applicants to have applies whether the delinquency is announcement will be reviewed for a current indirect cost rate agreement in attributable to the failure of the merit by the Ad Hoc Objective Review place prior to award. The rate agreement organization or the individual Committee (ORC) appointed by the IHS must be prepared in accordance with responsible for preparation of the to review and make recommendations the applicable cost principles and reports. Telecommunication for the guidance as provided by the cognizant on the applications. Prior to ORC hearing impaired is available at: TTY agency or office. A current rate means review, the applications will be (301) 443–6394. screened to determine that programs the rate covering the applicable proposed are those which the IHS has activities and the award budget period. VII. Agency Contacts the authority to provide, either directly If the current rate is not on file with the For program-related and general or through funding agreement, and that awarding office, the award shall include information regarding this those programs are designed for the funds for reimbursement of indirect benefit of IHS beneficiaries. If an urban costs. However, the indirect costs announcement: Danielle Steward, Indian organization does not meet these portion will remain restricted until the Health Systems Specialist, Office of requirements, the application will not current rate is provided to the DGO. Urban Indian Health Programs, 801 be reviewed. The ORC review will be If an urban Indian organization has Thompson Avenue, Reyes Building, conducted in accordance with the IHS questions regarding the indirect costs Suite 200, Rockville, MD 20852, (301) Objective Review Guidelines. The policy, please contact the DGO at (301) 443–4680 or [email protected]. applications will be evaluated and rated 443–5204. For specific grant-related and on the basis of the evaluation criteria 4. Reporting: business management information: A. Progress Report. Program progress listed in Section V.1. The guidelines can Denise Clark, Senior Grants reports on number of tests performed be obtained from the OUIHP. The Management Specialist, 801 Thompson criteria are used to evaluate the quality and milestones reached are required quarterly by the OUIHP in order to Avenue, TMP, Suite 360, Rockville, MD of a proposed project and determine the 20852, (301) 443–5204 or likelihood of success. satisfy quarterly reports due to funding source at MAI. These reports will [email protected]. 3. Anticipated Announcement and include a brief comparison of actual Dated: June 8, 2009. Award Dates accomplishments to the goals Randy Grinnell, Anticipated announcement and established for the period, reasons for Deputy Director, Indian Health Service. unmet milestones (if applicable), and Award Date is August 3, 2009. [FR Doc. E9–14044 Filed 6–12–09; 8:45 am] other pertinent information as required. VI. Award Administration Information B. A Final Assessment and Evaluation BILLING CODE 4165–16–P 1. Award Notices: report must be submitted within 90 days

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DEPARTMENT OF HEALTH AND Competition and Patent Term Under § 314.161(a) (21 CFR HUMAN SERVICES Restoration Act of 1984 (Public Law 98– 314.161(a)), the agency must determine 417) (the 1984 amendments), which whether a listed drug was withdrawn Food and Drug Administration authorized the approval of duplicate from sale for reasons of safety or [Docket No. FDA–2009–N–0254] versions of drug products approved effectiveness: (1) Before an ANDA that under an ANDA procedure. ANDA refers to that listed drug may be Determination That THORAZINE sponsors must, with certain exceptions, approved; (2) whenever a listed drug is (Chlorpromazine Hydrochloride) show that the drug for which they are voluntarily withdrawn from sale and Injection and 18 Other Drug Products seeking approval contains the same ANDAs that refer to the listed drug have Were Not Withdrawn From Sale for active ingredient in the same strength been approved; and (3) when a person Reasons of Safety or Effectiveness and dosage form as the ‘‘listed drug,’’ petitions for such a determination under which is a version of the drug that was AGENCY: Food and Drug Administration, 21 CFR 10.25(a) and 10.30. Section HHS. previously approved. Sponsors of 314.161(d) provides that if FDA ANDAs do not have to repeat the ACTION: Notice. determines that a listed drug was extensive clinical testing otherwise withdrawn from sale for reasons of necessary to gain approval of a new SUMMARY: The Food and Drug safety or effectiveness, the agency will drug application (NDA). The only Administration (FDA) has determined initiate proceedings that could result in clinical data required in an ANDA are that the 19 drug products listed in this the withdrawal of approval of the data to show that the drug that is the document were not withdrawn from ANDAs that refer to the listed drug. sale for reasons of safety or subject of the ANDA is bioequivalent to effectiveness. This determination means the listed drug. FDA has become aware that the drug that FDA will not begin procedures to The 1984 amendments include what products listed in the table in this withdraw approval of abbreviated new is now section 505(j)(7) of the Federal document are no longer being marketed. drug applications (ANDAs) that refer to Food, Drug, and Cosmetic Act (the act) (As requested by the applicants, FDA these drug products, and it will allow (21 U.S.C. 355(j)(7)), which requires withdrew approval of NDA 20–225 for FDA to continue to approve ANDAs that FDA to publish a list of all approved IMDUR (isosorbide mononitrate) refer to the products as long as they drugs. FDA publishes this list as part of Extended-Release Tablets in the Federal meet relevant legal and regulatory the ‘‘Approved Drug Products With Register of February 11, 2009 (74 FR requirements. Therapeutic Equivalence Evaluations,’’ 6896) and NDA 11–556 for ANTURANE FOR FURTHER INFORMATION CONTACT: which is generally known as the (sulfinpyrazone) Tablets and Capsules, Olivia Pritzlaff, Center for Drug ‘‘Orange Book.’’ Under FDA regulations, NDA 15–500 for TOLINASE Evaluation and Research, Food and a drug is withdrawn from the list if the (tolazamide) Tablets, NDA 18–285 for Drug Administration, 10903 New agency withdraws or suspends approval VISKEN (pindolol) Tablets, NDA 20– Hampshire Ave., Bldg. 51, rm. 6308, of the drug’s NDA or ANDA for reasons 137 for DEMADEX (torsemide) Silver Spring, MD 20993–0002, 301– of safety or effectiveness, or if FDA Injection, and NDA 20–154 for VIDEX 796–3601. determines that the listed drug was (didanosine) Chewable Tablets in the SUPPLEMENTARY INFORMATION: In 1984, withdrawn from sale for reasons of Federal Register of May 19, 2009 (74 FR Congress enacted the Drug Price safety or effectiveness (21 CFR 314.162). 23407)).

Application No. Drug Applicant

NDA 9–149 THORAZINE (chlorpromazine hydrochloride GlaxoSmithKline, 2301 Renaissance Blvd., (HCI)) Injection, 25 milligrams (mg)/milliliter King of Prussia, PA 19406 (mL)

NDA 9–149 THORAZINE (chlorpromazine HCl) Oral Con- Do. centrate, 30 mg/mL and 100 mg/mL

NDA 9–149 THORAZINE (chlorpromazine HCl) Oral Do. Syrup, 10 mg/5 mL

NDA 9–149 THORAZINE (chlorpromazine) Suppositories, Do. 25 mg and 100 mg

NDA 11–552 STELAZINE (trifluoperazine HCl) Tablets, Do. Equivalent to (EQ) 1 mg base, EQ 2 mg base, EQ 5 mg base, and EQ 10 mg base

NDA 11–556 ANTURANE (sulfinpyrazone) Tablet, 100 mg Novartis Pharmaceuticals Corp., One Health Plaza, East Hanover, NJ 07963

NDA 11–556 ANTURANE (sulfinpyrazone) Capsule, 200 Do. mg

NDA 12–940 ISORDIL (isosorbide dinitrate) Sublingual Biovail Pharmaceuticals, Inc., 700 Route Tablets, 2.5 mg, 5 mg, and 10 mg 202–206 North, Bridgewater, NJ 08807– 0980

NDA 15–500 TOLINASE (tolazamide) Tablets, 100 mg, Pfifzer, Inc., 235 East 42d St., New York, NY 250 mg, and 500 mg 10017

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Application No. Drug Applicant

NDA 18–154 LONITEN (minoxidil) Tablets, 2.5 mg and 10 Pharmacia & Upjohn Co., c/o Pfizer, Inc. mg

NDA 18–285 VISKEN (pindolol) Tablets, 5 mg and 10 mg Novartis Pharmaceuticals Corp.

NDA 18–445 DOLOBID (diflunisal) Tablets, 250 mg and Merck & Co., Inc., Sunneytown Pike, P.O. 500 mg Box 4, BLA–20, West Point, PA 19486

NDA 19–661 CYTOVENE IV (ganciclovir sodium) Injection, Roche Laboratories, Inc., 340 Kingsland St., EQ 500 mg base/vial Nutley, NJ 07110–1199

NDA 20–027 CARDIZEM (diltiazem HCl) Injection, 5 mg/ Biovail Pharmaecuticals, Inc. mL and 25 mg/vial

NDA 20–137 DEMADEX (torsemide) Injection, 20 mg/2 mL Roche Laboratories, Inc. (10 mg/mL) and 50 mg/5 mL (10 mg/mL)

NDA 20–154 VIDEX (didanosine) Chewable Tablets, 25 Bristol-Myers Squibb Co., P.O. Box 5100, mg, 50 mg, 100 mg, 150 mg, and 200 mg Wallingford, CT 06492–7660

NDA 20–225 IMDUR (isosorbide mononitrate) Extended- Schering Corp., 2000 Galloping Hill Rd., Ken- Release Tablets, 30 mg, 60 mg, and 120 ilworth, NJ 07033 mg

NDA 21–238 KYTRIL (granisetron HCl) Oral Solution, EQ Roche Laboratories, Inc. 2 mg base/10 mL

NDA 21–301 LEVOXYL (levothyroxine sodium) Tablet, 0.3 King Pharmaceuticals, Inc., 501 Fifth St., mg Bristol, TN 37620

FDA has reviewed its records and, DEPARTMENT OF HEALTH AND Improved Antibodies Against ErbB4/ under § 314.161, has determined that HUMAN SERVICES Her4 the drug products listed in this Description of Technology: ErbB4/ document were not withdrawn from National Institutes of Health Her4 is a receptor tyrosine kinase that sale for reasons of safety or regulates cell proliferation, cell effectiveness. Accordingly, the agency Government-Owned Inventions; Availability for Licensing differentiation and cell survival. ErbB4 will continue to list the drug products has been implicated in the pathology of listed in this document in the AGENCY: National Institutes of Health, numerous cancers (e.g., breast cancer, ‘‘Discontinued Drug Product List’’ Public Health Service, HHS. non-small cell lung carcinoma, section of the Orange Book. The adenocarcinoma), as well as psychiatric ‘‘Discontinued Drug Product List’’ ACTION: Notice. disorders (e.g., schizophrenia). As a identifies, among other items, drug result, ErbB4 is an excellent target for products that have been discontinued SUMMARY: The inventions listed below developing therapies against these from marketing for reasons other than are owned by an agency of the U.S. diseases. Unfortunately, the study of safety or effectiveness. Government and are available for ErbB4 has been slowed by the lack of Approved ANDAs that refer to the licensing in the U.S. in accordance with highly specific and functional NDAs listed in this document are 35 U.S.C. 207 to achieve expeditious antibodies against the receptor. unaffected by the discontinued commercialization of results of In order to overcome the deficiencies marketing of the products subject to Federally-funded research and with current ErbB4 antibodies, NIH those NDAs. Additional ANDAs that development. Foreign patent inventors have generated three rabbit refer to these products may also be applications are filed on selected monoclonal antibodies with improved approved by the agency if they comply inventions to extend market coverage properties and versatility. Specifically, with relevant legal and regulatory for companies and may also be available the mAb-6, mAb-7 and mAb-10 requirements. If FDA determines that for licensing. hybridomas produce antibodies with a high degree of specificity and affinity labeling for these drug products should ADDRESSES: Licensing information and be revised to meet current standards, the for ErbB4. These antibodies recognize copies of the U.S. patent applications specific epitopes on the intracellular agency will advise ANDA applicants to listed below may be obtained by writing domains of ErbB4 without cross- submit such labeling. to the indicated licensing contact at the reaction against other proteins, and can Dated: June 5, 2009. Office of Technology Transfer, National be used successfully in the Jeffrey Shuren, Institutes of Health, 6011 Executive immunostaining of fixed tissue. Each Associate Commissioner for Policy and Boulevard, Suite 325, Rockville, antibody recognizes both human and Planning. Maryland 20852–3804; telephone: 301/ mouse ErbB4, whereas only mAb-7 and [FR Doc. E9–14000 Filed 6–12–09; 8:45 am] 496–7057; fax: 301/402–0220. A signed mAb-10 recognize rat ErbB4. Confidential Disclosure Agreement will BILLING CODE 4160–01–S Applications: be required to receive copies of the • Basic research tool for the study of patent applications. ErbB4;

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• Reagent for diagnostic applications with increased overall morbidity and Polis (NIAID), Anthony Suffredini such as Western Blotting, ELISA, mortality compared to those infected (NIHCC). immunofluorescence and with just one virus. Recent data further Patent Status: HHS Reference No. E– immunohistochemistry in fixed tissue suggests that co-infection is also 106–2009/0—Research Tool. Patent samples; associated with a more rapid protection is not being pursued for this • Reagent for biochemical techniques progression of liver disease, higher HCV technology. such as immunoprecipitation. RNA viral levels, decreased cure rate of Licensing Status: Available for non- Advantages: HCV, and increased toxicities of anti- exclusive Biological Materials • Potential to be the gold standard for HCV therapy. Finally, clinical trials Licensing. ErbB4 antibodies due to its specificity have shown that many patients infected Licensing Contact: Bruce Goldstein, and affinity; with both viruses do not respond to J.D., M.S.; 301–435–5470; • Greater affinity for ErbB4 than Interferon-based therapy. Research [email protected]. currently available antibodies, giving strongly suggests that non-responding Collaborative Research Opportunity: them superior properties in diagnostic patients have an increased level of a The National Institute of Allergy and and biochemical applications; free-floating form of IFNAR2, which Infectious Diseases, Laboratory of • Unlike currently available could block Interferon activity. Immunoregulation, is interested in collaborative research directed toward polyclonal antibodies to ErbB4, the Resistance to Interferon therapy also molecular strategies for vaccine and monoclonal antibodies do not cross- occurs in other diseases, such as antiviral development, and animal react with other proteins; autoimmune diseases (e.g., lupus, • models of viral hepatitis C. For more Unlike currently available scleroderma, psoriasis, vasculitis) and information, please contact Rick antibodies, these antibodies are capable certain forms of cancer (e.g., Kaposi’s of immunostaining fixed tissue samples; Williams at 301–402–0960. • sarcoma, follicular lymphoma). The The epitopes on ErbB4 that are various means by which resistance Enhanced Immune Response Against recognized by each monoclonal arises is currently being researched. Influenza Virus by Priming With a antibody have been mapped. Applications: Study of mechanisms of DNA-based Vaccine Relevant Publications: resistance to Interferon therapy in Description of Technology: Available 1. G Carpenter. ErbB-4: mechanism of selected diseases, such as HCV/HIV co- action and biology. Exp Cell Res. 2003 for licensing and commercial infection and certain cancers; study of development are compositions and Mar 10;284(1):66–77. Interferon-alpha in auto-immune 2. S Britsch. The neruregulin-1/ErbB methods for enhancing an immune diseases such as lupus, scleroderma, signaling system in development and response to influenza viruses by psoriasis, and vasculitis; drug design disease. Adv Anat Embryol Cell Biol. priming with DNA-based vaccines and screening. 2007;190:1–65. encoding influenza proteins. The Advantages: priming compositions contain DNA Inventors: Andres Buonanno and • Detlef Vullhorst (NICHD) A model to screen, develop, and constructs with inserted nucleic acids Patent Status: HHS Reference No. E– test drugs for HCV among HCV/HIV co- encoding influenza virus hemagglutinin 171–2009/0—Research Material. Patent infected patients not responding to (HA) or an epitope-bearing domain Interferon; thereof, while the boosting protection is not being pursued for this • technology. A model for basic research, to study compositions are inactivated influenza Licensing Status: The technology is the biology and role of IFNAR2 and its vaccines. The DNA constructs are based available under a biological materials function, along with the role of the on proprietary expression systems that license. Interferon receptor in the development increase protein expression relative to Licensing Contact: David A. of disease resulting from activation of commonly used alternatives. Lambertson, PhD; 301–435–4632; the immune system. A potential influenza pandemic [email protected]. Development Status: Proof-of- caused by H5N1 strains of avian Collaborative Research Opportunity: principle studies showing that the mice influenza virus (bird flu) is a major The Eunice Kennedy Shriever National represent HCV/HIV co-infected global concern. The seasonal influenza Institute of Child Health and Human individuals not responding to Interferon caused by other subtypes of influenza is Development, Section on Molecular treatment. also a cause of concern. Vaccination is Neurobiology, is seeking statements of Market: HIV/HCV co-infection is one of the most effective ways to capability or interest from parties documented in one-third of all HIV- minimize suffering and death from interested in collaborative research to infected persons in the United States, an influenza. However, influenza further evaluate or commercialize estimated 250,000 people. Moreover, vaccination does not reduce the risk of specific rabbit monoclonal antibodies certain cancers (e.g., Kaposi’s sarcoma, community-acquired pneumonia in generated against the ErbB4 receptor follicular lymphoma) normally treated elderly nor does it decrease the rate of (also known as HER4). Please contact with Interferon-alpha either show initial influenza infection in children aged 6– Joseph Conrad III, PhD at 301–435–3107 resistance or develop resistance during 23 months. Strategies to elicit protective or [email protected] for more therapy, but the mechanism of immunity with greater potency and information. resistance is highly complex; this mouse breadth therefore remain a priority. The model will be useful in learning the present invention discloses the ability of Mouse Model of Individual paths through which resistance gene-based priming with influenza Unresponsive to Interferon develops, and perhaps in designing hemagglutinin (HA) to prime for an Description of Technology: NIAID has strategies to overcome resistance. increase in titer and cross-reactivity of developed a mouse model that produces Finally, autoimmune diseases known to the neutralizing antibody response after very high levels of Interferon-alpha- be caused (in whole or in part) by inactivated influenza virus vaccine receptor 2 (IFNAR2), both in liver cells Interferon-alpha include lupus, boost. After priming with a DNA and free-floating in serum. scleroderma, psoriasis, and vasculitis. vaccine encoding HA from a H1N1 Chronic co-infection of HIV and Inventors: Shyamasundaran Kottilil strain, boosting with a seasonal hepatitis C virus (HCV) is associated (NIAID), Howard Young (NCI), Michael influenza vaccine containing this

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inactivated virus stimulated a 100-fold human cutaneous metastatic melanoma (TDC) Claire T. Driscoll at increase in the titer of H1 neutralizing and have identified several novel [email protected] for more antibodies. Of note, this combination somatic mutations, most notably information. immunization, in contrast to either mutations in MMP–8. This invention component alone, elicited heterotypic provides methods of identifying specific Methods for Preparing Immunogenic neutralizing antibodies against a H5N1 inhibitors to MMP–8 that could be used Conjugates strain. Similar priming was also to treat patients with MMP–8 mutations. Description of Technology: This observed with a DNA vaccine encoding It also provides methods for predicting technology describes improved methods an HA from a H5N1 strain, with the the prognosis of patients with MMP–8 of synthesis for conjugate vaccines, H5N1 subvirion vaccine boost. These mutations. Thus, this invention could specifically those against anthrax. The results show that gene-based priming not only help identify the roles of prior to vaccinating with the traditional specific MMPs in melanoma, but also inventors’ method is designed to influenza vaccine boost induced help further the development MMP synthesize immunogenic conjugates humoral immunity against different inhibitors to treat melanoma patients. (i.e., a protein carrier conjugated to a subtypes of influenza viruses that Applications: bacterially derived synthetic peptide) increases the potency and breadth of the • Diagnostic array for the detection of that are prepared at a physiological pH, neutralizing antibody response. MMP–8 mutations. not reversible and do not require Applications: This invention provides • Method of predicting the prognosis reduction with borohydride. The a vaccine strategy for potentially of melanoma patients. inventors’ method comprises reacting controlling influenza epidemics, • Method of identifying MMP–8 the protein carrier with a dihydrazide, including avian flu should it cross over activators as therapeutic agents to treat and the peptide with a benzaldehyde, or to humans, and seasonal flu strains. malignant melanoma patients. the reverse, then reacting the Development Status: Animal studies Development Status: The technology derivatized peptide and the derivatized Inventors: Gary J. Nabel and Chih-jen is currently in the pre-clinical stage of protein with each other to form an Wei (VRC/NIAID) development. immunogenic conjugate. Patent Status: U.S. Provisional Market: Application No. 61/100,621 filed 26 • Approximately 160,000 new cases Application: Methods for making Aug 2008, entitled ‘‘DNA Prime/ of melanoma are diagnosed worldwide conjugate vaccines and reagents. Inactivated Vaccine Boost Immunization each year. Malignant melanoma is Advantages: More efficient to Influenza Virus’’ (HHS Reference No. increasing faster than any other cancer. conjugation methods, higher conjugate • E–341–2008/0–US–01). Melanoma is the most prevalent yields. Related Technology: U.S. Patent No. cancer among women between the ages 7,094,598 issued 22 Aug 2006 and of 25–29 and the second most prevalent Development Status: Vaccine associated foreign rights (proprietary cancer among woman ages 30–34. candidates have been synthesized and expression system with CMV/R • Cutaneous malignant melanoma is preclinical studies have been promoter) (HHS Reference No. E–241– the most serious form of skin cancer and performed. 2001). accounts for about 75% of all skin Inventors: Rachel Schneerson Licensing Status: Available for cancer deaths. (NICHD), Joanna Kubler-Kielb (NICHD), licensing. • One person dies from melanoma Fathy Majadly (NICHD), Stephen Leppla Licensing Contact: Cristina every hour. (NIAID), John Robbins (NICHD), Darrel Thalhammer-Reyero, PhD, MBA; 301– Inventors: Yardena R. Samuels Liu (NICHD), Joseph Shiloach (NIDDK). 435–4507; [email protected]. (NHGRI). Publication: LH Palavalli et al: Related Publication: J Kubler-Kielb et Use of MMP–8 as a Prognostic Marker Analysis of the matrix metalloproteinase al. Additional conjugation methods and for Melanoma family reveals that MMP8 is often immunogenicity of Bacillus anthracis Description of Technology: Cutaneous mutated in melanoma. Nat Genet 2009 poly-gamma-D-glutamic acid-protein malignant melanoma is the most May;41(5):518–520. conjugates. Infect Immun. 2006 common fatal skin cancer, and the Patent Status: U.S. Provisional Aug;74(8):4744–4749. incidence of this disease increases each Application No. 61/198,384 filed 03 Patent Status: U.S. Patent Application year. The average survival time for Nov 2008 (HHS Reference No. E–273– No. 11/005,851 filed 06 Dec 2004 (HHS patients diagnosed with malignant 2008/0–US–01). Reference No. E–040–2005/0–US–01); melanoma is less than ten months. Licensing Status: Available for Foreign Rights Available. Consequently, it is important to identify licensing. and understand genetic alterations Licensing Contact: Whitney Hastings; Licensing Status: Available for leading to malignant melanoma so that 301–451–7337; [email protected]. licensing. new treatments strategies can be Collaborative Research Opportunity: Licensing Contact: Peter A. Soukas, developed. The National Human Genome Research J.D.; 301–435–4646; Matrix Metalloproteinases (MMPs) Institute’s Cancer Genetics Branch is [email protected]. have been associated with increased seeking statements of capability or metastasis and several small molecule interest from parties interested in Dated: June 8, 2009. inhibitors have been developed as collaborative research to further Richard U. Rodriguez, potential anticancer agents. develop, evaluate, and/or commercialize Director, Division of Technology Development Unfortunately, these inhibitors have this newly identified candidate and Transfer, Office of Technology Transfer, been largely unsuccessful despite the melanoma diagnostic and prognostic National Institutes of Health. research suggesting otherwise and it is marker as well as to identify and [FR Doc. E9–13943 Filed 6–12–09; 8:45 am] clear that additional analyses are develop possible MMP–8 activators for BILLING CODE 4140–01–P warranted. The NIH inventors have testing as possible anti-melanoma recently performed a mutational agents. Please contact NHGRI’s analysis of the MMP gene family in Technology Development Coordinator

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DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND The meeting will be closed to the HUMAN SERVICES HUMAN SERVICES public in accordance with the provisions set forth in sections National Institutes of Health National Institutes of Health 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and National Heart, Lung, and Blood National Institute of Diabetes and the discussions could disclose Institute; Notice of Closed Meetings Digestive and Kidney Diseases; Notice confidential trade secrets or commercial of Closed Meeting Pursuant to section 10(d) of the property such as patentable material, Federal Advisory Committee Act, as Pursuant to section 10(d) of the and personal information concerning amended (5 U.S.C. App.), notice is Federal Advisory Committee Act, as individuals associated with the grant hereby given of the following meetings. amended (5 U.S.C. App.), notice is applications, the disclosure of which The meetings will be closed to the hereby given of the following meeting. would constitute a clearly unwarranted public in accordance with the The meeting will be closed to the invasion of personal privacy. provisions set forth in section public in accordance with the Name of Committee: National Institute of 552b(c)(6), Title 5 U.S.C., as amended. provisions set forth in sections Diabetes and Digestive and Kidney Diseases The grant applications and the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Special Emphasis Panel, AARA P50 discussions could disclose confidential as amended. The grant applications and Supplement Review. trade secrets or commercial property the discussions could disclose Date: June 29, 2009 such as patentable material, and confidential trade secrets or commercial Time: 1 p.m. to 3 p.m. personal information concerning property such as patentable material, Agenda: To review and evaluate grant applications. individuals associated with the grant and personal information concerning Place: National Institutes of Health, Two applications, the disclosure of which individuals associated with the grant Democracy Plaza, 6707 Democracy would constitute a clearly unwarranted applications, the disclosure of which Boulevard, Bethesda, MD 20892 (Telephone invasion of personal privacy. would constitute a clearly unwarranted Conference Call) Name of Committee: National Heart, Lung, invasion of personal privacy. Contact Person: Atul Sahai, PhD, Scientific and Blood Institute Special Emphasis Panel. Name of Committee: National Institute of Review Officer, Review Branch, DEA, NIDDK Data Coordinating Center for the NHLBI Diabetes and Digestive and Kidney Diseases National Institutes of Health, Room 759, 6707 Asthma Network. Special Emphasis Panel; Team Science in Democracy Boulevard, Bethesda, MD 20892– Date: June 29, 2009. Diabetes, Endocrinology, and Metabolic 5452, (301) 594–2242, [email protected]. Time: 7 p.m. to 10 p.m. Diseases. This notice is being published less than 15 Agenda: To review and evaluate grant Date: July 28, 2009. days prior to the meeting due to the timing applications. Time: 1 p.m. to 4 p.m. limitations imposed by the review and Place: Courtyard Marriott—Arlington Agenda: To review and evaluate grant funding cycle. Crystal City, 2899 Jefferson Davis Highway, applications. (Catalogue of Federal Domestic Assistance Arlington, VA 22202. Place: National Institutes of Health, 6701 Program Nos. 93.847, Diabetes, Contact Person: Robert Blaine Moore, PhD, Rockledge Drive, Bethesda, MD 20892, Endocrinology and Metabolic Research; Scientific Review Officer, Review Branch/ (Telephone Conference Call) 93.848, Digestive Diseases and Nutrition DERA, National Heart, Lung, and Blood Contact Person: Robert Wellner, PhD, Research; 93.849, Kidney Diseases, Urology Institute, 6701 Rockledge Drive, Room 7213, Scientific Review Officer, Review Branch, and Hematology Research; 93.701, ARRA Bethesda, MD 20892. 301–594–8394. DEA, NIDDK, National Institutes of Health, Related Biomedical Research and Research [email protected]. Room 757, 6707 Democracy Boulevard, Support Awards, National Institutes of Name of Committee: National Heart, Lung, Bethesda, MD 20892–5452, (301) 594–4721, Health, HHS) [email protected]. and Blood Institute Special Emphasis Panel. Dated: June 8, 2009. Clinical Centers for the NHLBI Asthma (Catalogue of Federal Domestic Assistance Jennifer Spaeth, Network. Program Nos. 93.847, Diabetes, Date: June 30–July 1, 2009. Endocrinology and Metabolic Research; Director, Office of Federal Advisory Time: 8 a.m. to 5 p.m. 93.848, Digestive Diseases and Nutrition Committee Policy. Agenda: To review and evaluate grant Research; 93.849, Kidney Diseases, Urology [FR Doc. E9–13948 Filed 6–12–09; 8:45 am] applications. and Hematology Research, National Institutes BILLING CODE 4140–01–P Place: Courtyard Marriott—Arlington of Health, HHS) Crystal City, 2899 Jefferson Davis Highway, Dated: June 8, 2009. Arlington, VA 22202. Jennifer Spaeth, DEPARTMENT OF HEALTH AND Contact Person: Robert Blaine Moore, PhD, HUMAN SERVICES Scientific Review Officer, Review Branch/ Director, Office of Federal Advisory Committee Policy. DERA, National Heart, Lung, and Blood National Institutes of Health Institute, 6701 Rockledge Drive, Room 7213, [FR Doc. E9–13946 Filed 6–12–09; 8:45 am] Bethesda, MD 20892. 301–594–8394. BILLING CODE 4140–01–P National Human Genome Research [email protected]. Institute; Notice of Closed Meeting (Catalogue of Federal Domestic Assistance Program Nos. 93.233, National Center for DEPARTMENT OF HEALTH AND Pursuant to section 10(d) of the Sleep Disorders Research; 93.837, Heart and HUMAN SERVICES Federal Advisory Committee Act, as Vascular Diseases Research; 93.838, Lung amended (5 U.S.C. App.), notice is Diseases Research; 93.839, Blood Diseases National Institutes of Health hereby given of the following meeting. and Resources Research, National Institutes The meeting will be closed to the of Health, HHS) National Institute of Diabetes and public in accordance with the Dated: June 8, 2009. Digestive and Kidney Diseases; Notice of Closed Meeting provisions set forth in sections Jennifer Spaeth, 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Director, Office of Federal Advisory Pursuant to section 10(d) of the as amended. The grant applications and Committee Policy. Federal Advisory Committee Act, as the discussions could disclose [FR Doc. E9–13935 Filed 6–12–09; 8:45 am] amended (5 U.S.C. App.), notice is confidential trade secrets or commercial BILLING CODE 4140–01–P hereby given of the following meeting. property such as patentable material,

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and personal information concerning This notice is being published less than 15 MSC 7770, Bethesda, MD 20892, 301/435– individuals associated with the grant days prior to the meeting due to the timing 1503, [email protected]. applications, the disclosure of which limitations imposed by the review and Name of Committee: Center for Scientific would constitute a clearly unwarranted funding cycle. Review, Special Emphasis Panel; Infectious invasion of personal privacy. Name of Committee: Center for Scientific Diseases and Microbiology Fellowships. Review, Special Emphasis Panel; Date: July 9–10, 2009. Name of Committee: National Human Biobehavioral and Behavioral Processes. Time: 8:30 a.m. to 5 p.m. Genome Research Institute Initial Review Date: June 29–30, 2009. Agenda: To review and evaluate grant Group; Genome Research Review Committee. Time: 10 a.m. to 12 p.m. applications. Date: August 5, 2009. Agenda: To review and evaluate grant Place: Mayflower Park Hotel, 405 Olive Time: 11:30 a.m. to 2 p.m. applications. Way, Classic Queen, Seattle, WA 98101. Agenda: To review and evaluate grant Place: National Institutes of Health, 6701 Contact Person: Alexander D. Politis, PhD, applications. Rockledge Drive, Bethesda, MD 20892 Scientific Review Officer, Center for Place: National Institutes of Health, 5635 (Virtual Meeting). Scientific Review, National Institutes of Fishers Lane, Rockville, MD 20852 Contact Person: Cheri Wiggs, PhD, Health, 6701 Rockledge Drive, Room 3210, (Telephone Conference Call). Scientific Review Officer, Center for MSC 7808, Bethesda, MD 20892, (301) 435– Contact Person: Ken D. Nakamura, PhD, Scientific Review, National Institutes of 1150, [email protected]. Scientific Review Officer, Office of Scientific Health, 6701 Rockledge Drive, Room 3180, Name of Committee: Center for Scientific Review, National Human Genome Research MSC 7848, Bethesda, MD 20892, (301) 435– Review, Special Emphasis Panel; Institute, National Institutes of Health, 1261, [email protected]. Rehabilitation Sciences. Bethesda, MD 20892, 301 402–0838. This notice is being published less than 15 Date: July 10, 2009. (Catalogue of Federal Domestic Assistance days prior to the meeting due to the timing Time: 8 a.m. to 5 p.m. Program Nos. 93.172, Human Genome limitations imposed by the review and Agenda: To review and evaluate grant Research, National Institutes of Health, HHS) funding cycle. applications. Place: Hilton Alexandria Old Town, 1767 Dated: June 8, 2009. Name of Committee: Center for Scientific Review, Special Emphasis Panel; Dietary King Street, Washington/Jefferson, Jennifer Spaeth, Influence and Vascular Function During the Alexandria, VA 22314. Director, Office of Federal Advisory Aging Process. Contact Person: Jo Pelham, BA, Scientific Committee Policy. Date: June 30, 2009. Review Officer, Center for Scientific Review, [FR Doc. E9–13941 Filed 6–12–09; 8:45 am] Time: 2 p.m. to 5 p.m. National Institutes of Health, 6701 Rockledge Drive, Room 4102, MSC 7814, Bethesda, MD BILLING CODE 4140–01–P Agenda: To review and evaluate grant applications. 20892, (301) 435–1786, [email protected]. Place: National Institutes of Health, 6701 Name of Committee: Center for Scientific DEPARTMENT OF HEALTH AND Rockledge Drive, Bethesda, MD 20892 Review, Special Emphasis Panel; HUMAN SERVICES (Telephone Conference Call). Computational Modeling and Sciences for Contact Person: Neelakanta Ravindranath, Biomedical and Clinical Applications. National Institutes of Health PhD, Scientific Review Officer, Center for Date: July 13, 2009. Scientific Review, National Institutes of Time: 8 a.m. to 5 p.m. Center for Scientific Review; Notice of Health, 6701 Rockledge Drive, Room 5140, Agenda: To review and evaluate grant MSC 7843, Bethesda, MD 20892, 301–435– applications. Closed Meetings 1034, [email protected]. Place: Hyatt Regency Bethesda, One Pursuant to section 10(d) of the This notice is being published less than 15 Bethesda Metro Center, 7400 Wisconsin Federal Advisory Committee Act, as days prior to the meeting due to the timing Avenue, Bethesda, MD 20814. amended (5 U.S.C. App.), notice is limitations imposed by the review and Contact Person: Guo Feng Xu, PhD, funding cycle. Scientific Review Officer, Center for hereby given of the following meetings. Scientific Review, National Institutes of The meetings will be closed to the Name of Committee: AIDS and Related Research Integrated Review Group; AIDS Health, 6701 Rockledge Drive, Room 5122, public in accordance with the Molecular and Cellular Biology Study MSC 7854, Bethesda, MD 20892, 301–435– provisions set forth in sections Section. 1032, [email protected]. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: July 6, 2009. Name of Committee: Center for Scientific as amended. The grant applications and Time: 7:30 a.m. to 6 p.m. Review, Special Emphasis Panel; Genes, the discussions could disclose Agenda: To review and evaluate grant Genomes and Genetics Shared confidential trade secrets or commercial applications. Instrumentation. property such as patentable material, Place: Ritz-Carlton Hotel, 1150 22nd Street, Date: July 13, 2009. and personal information concerning NW., Washington, DC 20037. Time: 8 a.m. to 5 p.m. individuals associated with the grant Contact Person: Kenneth A. Roebuck, PhD, Agenda: To review and evaluate grant Scientific Review Officer, Center for applications. applications, the disclosure of which Scientific Review, National Institutes of Place: The Fairmont Washington, DC, 2401 would constitute a clearly unwarranted Health, 6701 Rockledge Drive, Room 5214, M Street, NW., Washington, DC 20037. invasion of personal privacy. MSC 7852, Bethesda, MD 20892, (301) 435– Contact Person: Richard Panniers, PhD, Name of Committee: Center for Scientific 1166, [email protected]. Scientific Review Officer, Center for Review, Special Emphasis Panel; Radiation Name of Committee: Center for Scientific Scientific Review, National Institutes of Therapy and Biology SBIR/STTR. Review, Special Emphasis Panel; Community Health, 6701 Rockledge Drive, Room 2212, Date: June 29, 2009. Health Promotion. MSC 7890, Bethesda, MD 20892, (301) 435– Time: 8 a.m. to 5 p.m. Date: July 9–10, 2009. 1741, [email protected]. Agenda: To review and evaluate grant Time: 8 a.m. to 5 p.m. Name of Committee: Center for Scientific applications. Agenda: To review and evaluate grant Review, Special Emphasis Panel; HDM Place: Hyatt Regency Bethesda, One applications. Competitive Revision Applications. Bethesda Metro Center, 7400 Wisconsin Place: National Institutes of Health, 6701 Date: July 14, 2009. Avenue, Bethesda, MD 20814. Rockledge Drive, Bethesda, MD 20892 Time: 11 a.m. to 5 p.m. Contact Person: Bo Hong, PhD, Scientific (Virtual Meeting). Agenda: To review and evaluate grant Review Officer, Center for Scientific Review, Contact Person: William N. Elwood, PhD, applications. National Institutes of Health, 6701 Rockledge Scientific Review Officer, Center for Place: National Institutes of Health, 6701 Drive, Room 6194, MSC 7804, Bethesda, MD Scientific Review, National Institutes of Rockledge Drive, Bethesda, MD 20892, 20892, 301–435–5879, [email protected]. Health, 6701 Rockledge Drive, Room 3162, (Virtual Meeting).

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Contact Person: Karin F. Helmers, PhD, Time: 8 a.m. to 5 p.m. Date: July 20–21, 2009. Scientific Review Officer, Center for Agenda: To review and evaluate grant Time: 8 a.m. to 5 p.m. Scientific Review, National Institutes of applications. Agenda: To review and evaluate grant Health, 6701 Rockledge Drive, Room 3166, Place: Hotel Palomar, 2121 P Street, NW., applications. MSC 7770, Bethesda, MD 20892, 301–435– Washington, DC 20037. Place: Bethesda North Marriott Hotel & 1017, [email protected]. Contact Person: Noni Byrnes, PhD, Conference Center, 5701 Marinelli Road, Name of Committee: Center for Scientific Scientific Review Officer, Center for Bethesda, MD 20852. Review, Special Emphasis Panel; Molecular, Scientific Review, National Institutes of Contact Person: Sherry L. Dupere, PhD, Cellular and Developmental Neurobiological Health, 6701 Rockledge Drive, Room 5130, Scientific Review Officer, Center for Small Business Applications. MSC 7840, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of Date: July 16, 2009. 1023, [email protected]. Health, 6701 Rockledge Drive, Room 5136, Time: 8 a.m. to 5 p.m. Name of Committee: Center for Scientific MSC 7843, Bethesda, MD 20892, (301) 435– Time: To review and evaluate grant Review, Special Emphasis Panel; RFA OD– 1021, [email protected]. applications. 09–003: Challenge Grants Panel 1. Name of Committee: Center for Scientific Place: Hyatt Regency Bethesda, One Date: July 20–21, 2009. Review, Special Emphasis Panel; RFA–OD– Bethesda Metro Center, 7400 Wisconsin Time: 8 a.m. to 6 p.m. 09–003: Challenge Grants Panel 19. Avenue, Bethesda, MD 20814. Agenda: To review and evaluate grant Date: July 20–21, 2009. Contact Person: Eugene Carstea, PhD, applications. Time: 8 a.m. to 7:30 p.m. Scientific Review Officer, Center for Place: Ritz Carlton Hotel, 1150 22nd Street, Agenda: To review and evaluate grant Scientific Review, Nationa Institutes of NW., Washington, DC 20037. applications. Health, 6701 Rockledge Drive, Room 5199, Contact Person: Michael Micklin, PhD, Place: Hyatt Regency Bethesda, One MSC 7846, Bethesda, MD 20892, (301) 435– Scientific Review Officer, Center for Bethesda Metro Center, 7400 Wisconsin 0634. Scientific Review, National Institutes of Avenue, Bethesda, MD 20814. Contact Person: Lawrence E. Boerboom, Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 3136, PhD, Scientific Review Officer, Center for Review, Special Emphasis Panel; Diet and MSC 7759, Bethesda, MD 20892, (301) 435– Scientific Review, National Institutes of Physical Activity Methodologies. 1258, [email protected]. Health, 6701 Rockledge Drive, Room 5156, Date: July 16–17, 2009. Name of Committee: Center for Scientific MSC 7814, Bethesda, MD 20892, (301) 435– Time: 8 a.m. to 5 p.m. Review, Special Emphasis Panel; RFA OD– 8367, [email protected]. Agenda: To review and evaluate grant 09–003 Challenge Grants Panel 20. applications. Date: July 20–21, 2009. Name of Committee: Center for Scientific Place: National Institutes of Health, 6701 Time: 8 a.m. to 9 p.m. Review, Special Emphasis Panel; RFA09–003 Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant Challenge Grants Panel 9. (Virtual Meeting). applications. Date: July 20–21, 2009. Contact Person: Fungai F. Chanetsa, MPH, Place: One Washington Circle Hotel, One Time: 8 a.m. to 5 p.m. PhD, Scientific Review Officer, Center for Washington Circle, NW., Washington, DC Agenda: To review and evaluate grant applications. Scientific Review, National Institutes of 20037. Place: Melrose Hotel, 2430 Pennsylvania Health, 6701 Rockledge Drive, Room 3135, Contact Person: Ai-Ping Zou, MD, PhD, Avenue, NW., Washington, DC 20037. MSC 7770, Bethesda, MD 20892, 301–435– Scientific Review Officer, Center for Contact Person: Alexander D. Politis, PhD, 1262, [email protected]. Scientific Review, National Institutes of Scientific Review Officer, Center for Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 4118, Scientific Review, National Institutes of Review, Special Emphasis Panel; Pilot-Scale MSC 7814, Bethesda, MD 20892, 301–435– Health, 6701 Rockledge Drive, Room 3210, Libraries for High-Throughput Screening 1777, [email protected]. MSC 7808, Bethesda, MD 20892, (301) 435– RFA–RM–08–003. Name of Committee: Center for Scientific 1150, [email protected]. Date: July 16, 2009. Review, Special Emphasis Panel; RFA OD– Name of Committee: Center for Scientific Time: 8:30 a.m. to 5 p.m. 09–003 Challenge Grants Panel 15. Review, Special Emphasis Panel; Behavioral Agenda: To review and evaluate grant Date: July 20–21, 2009. Neuroscience Fellowship. applications. Time: 8 a.m. to 5 p.m. Date: July 20–21, 2009. Place: St. Gregory Hotel, 2033 M Street, Agenda: To review and evaluate grant Time: 8 a.m. to 5 p.m. NW., Washington, DC 20036. applications. Agenda: To review and evaluate grant Contact Person: Kathryn M. Koeller, PhD, Place: Hilton Washington/Rockville, 1750 applications. Scientific Review Officer, Center for Rockville Pike, Rockville, MD 20852. Place: The Hilton Hotel, 8727 Colesville Scientific Review, National Institutes of Contact Person: Sooja K. Kim, PhD, Road, Silver Spring, MD 20910. Health, 6701 Rockledge Drive, Room 4166, Scientific Review Officer, Center for Contact Person: Kristin Kramer, PhD, MSC 7806, Bethesda, MD 20892, 301–435– Scientific Review, National Institutes of Scientific Review Officer, Center for 2681, [email protected]. Health, 6701 Rockledge Drive, Room 6182, Scientific Review, National Institutes of Name of Committee: Center for Scientific MSC 7892, Bethesda, MD 20892, (301) 435– Health, 6701 Rockledge Drive, Room 5205, Review, Special Emphasis Panel; 1780, [email protected]. MSC 7846, Bethesda, MD 20892, (301) 435– Biotechnology Fellowship. Name of Committee: Center for Scientific 1172, [email protected]. Date: July 16–17, 2009. Review, Special Emphasis Panel; RFA OD– Name of Committee: Center for Scientific Time: 9 a.m. to 6 p.m. 09–003: Challenge Grants Panel 1. Review, Special Emphasis Panel; STEM Agenda: To review and evaluate grant Date: July 20–21, 2009. Challenge Grants. applications. Time: 8 a.m. to 5 p.m. Date: July 20–21, 2009. Place: National Institutes of Health, 6701 Agenda: To review and evaluate grant Time: 8 a.m. to 5 p.m. Rockledge Drive, Bethesda, MD 20892, applications. Agenda: To review and evaluate grant (Virtual Meeting). Place: Pier 5 Hotel, 711 Eastern Avenue, applications. Baltimore Marriott Waterfront, Contact Person: Alessandra M. Bini, PhD, Baltimore, MD 21202. 700 Aliceanna Street, Baltimore, MD 21202. Scientific Review Officer, Center for Contact Person: Bob Weller, PhD, Contact Person: Jonathan Arias, PhD, Scientific Review, National Institutes of Scientific Review Officer, Center for Scientific Review Officer, Center for Health, 6701 Rockledge Drive, Room 5142, Scientific Review, National Institutes of Scientific Review, National Institutes of MSC 7840, Bethesda, MD 20892, 301–435– Health, 6701 Rockledge Drive, Room 3160, Health, 6701 Rockledge Drive, Room 5170, 1024, [email protected]. MSC 7770, Bethesda, MD 20892, (301) 435– MSC 7840, Bethesda, MD 20892, 301–435– Name of Committee: Center for Scientific 0694, [email protected]. 2406, [email protected]. Review, Special Emphasis Panel; RFA–OD– Name of Committee: Center for Scientific Name of Committee: Center for Scientific 09–003 Challenge Grants Panel #3. Review, Special Emphasis Panel; RFA OD09– Review, Special Emphasis Panel; RFA OD– Date: July 20–21, 2009. 003 Challenge Grant Panel #10. 09–003 Challenge Grants Panel 6.

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Date: July 20–21, 2009. Name of Committee: Center for Scientific 2009, 5 p.m., National Institutes of Time: 8 a.m. to 6 p.m. Review, Special Emphasis Panel; Health, One Democracy Plaza, 6701 Agenda: To review and evaluate grant Microbiology Member Conflicts. Democracy Boulevard, Bethesda, MD applications. Date: July 24, 2009. Place: Embassy Suites at the Chevy Chase Time: 9 a.m. to 9 p.m. 20892 which was published in the Pavilion, 4300 Military Road, NW., Agenda: To review and evaluate grant Federal Register on May 27, 2009, 74 Washington, DC 20015. applications. FR 25262. Contact Person: Cathleen L. Cooper, PhD, Place: National Institutes of Health, 6701 The previously published July 20–24, Scientific Review Officer, Center for Rockledge Drive, Bethesda, MD 20892, Scientific Review, National Institutes of (Virtual Meeting). 2009, meeting has been changed to a Health, 6701 Rockledge Drive, Room 4208, Contact Person: John C. Pugh, PhD, one day meeting on July 24, 2009. The MSC 7812, Bethesda, MD 20892, 301–435– Scientific Review Officer, Center for meeting is closed to the public. 3566, [email protected]. Scientific Review, National Institutes of Dated: June 8, 2009. Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 3114, Review, Special Emphasis Panel; NCSD MSC 7808, Bethesda, MD 20892, (301) 435– Jennifer Spaeth, Competitive Revisions. 2398, [email protected]. Director, Office of Federal Advisory Date: July 21–22, 2009. Name of Committee: Center for Scientific Committee Policy. Time: 8 a.m. to 5 p.m. Review, Special Emphasis Panel; Roadmap [FR Doc. E9–13950 Filed 6–12–09; 8:45 am] Agenda: To review and evaluate grant HTS Assay for MLPCN. applications. Date: July 30, 2009. BILLING CODE 4140–01–P Place: National Institutes of Health, 6701 Time: 8 a.m. to 6 p.m. Rockledge Drive, Bethesda, MD 20892, Agenda: To review and evaluate grant (Virtual Meeting) applications. DEPARTMENT OF HEALTH AND Contact Person: Alexandra M. Ainsztein, Place: Doubletree Hotel & Executive HUMAN SERVICES PhD, Scientific Review Officer, Center for Meeting Center, 8120 Wisconsin Avenue, Scientific Review, National Institutes of Bethesda, MD 20814. National Institutes of Health Health, 6701 Rockledge Drive, Room 5144, Contact Person: James J. Li, PhD, Scientific MSC 7840, Bethesda, MD 20892, 301–451– Review Officer, Center for Scientific Review, National Institute of Allergy and 3848, [email protected]. National Institutes of Health, 6701 Rockledge Infectious Diseases; Notice of Closed Name of Committee: Center for Scientific Drive, Room 5148, MSC 7849, Bethesda, MD Meeting Review, Special Emphasis Panel; 20892, 301–435–2417, [email protected]. Fellowships: Physiology and Pathobiology of Name of Committee: Center for Scientific Pursuant to section 10(d) of the Cardiovascular and Respiratory Systems. Review, Special Emphasis Panel; Small Date: July 22, 2009. Business—Respiratory Sciences. Federal Advisory Committee Act, as Time: 8 a.m. to 5 p.m. Date: July 30–31, 2009. amended (5 U.S.C. App.), notice is Agenda: To review and evaluate grant Time: 9 a.m. to 5 p.m. hereby given of the following meeting. applications. Agenda: To review and evaluate grant The meeting will be closed to the Place: AVENUE Hotel Chicago, 160 E applications. Huron, Chicago, IL 60611. Place: National Institutes of Health, 6701 public in accordance with the Contact Person: Abdelouahab Aitouche, Rockledge Drive, Bethesda, MD 20892, provisions set forth in sections PhD, Scientific Review Officer, Center of (Virtual Meeting). 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Scientific Review, RKLG I, Room 2188, 6701 Contact Person: Ghenima Dirami, PhD, as amended. The grant applications and Rockledge Drive, Bethesda, MD 20892, 301– Scientific Review Officer, Center for the discussions could disclose 435–2365, [email protected]. Scientific Review, National Institutes of confidential trade secrets or commercial Name of Committee: Center for Scientific Health, 6701 Rockledge Drive, Room 4112, Review, Special Emphasis Panel; Flow- MSC 7814, Bethesda, MD 20892, 301–594– property such as patentable material, Cytometry. 1321, [email protected]. and personal information concerning Date: July 23–24, 2009. (Catalogue of Federal Domestic Assistance individuals associated with the grant Time: 8 a.m. to 5:30 p.m. Program Nos. 93.306, Comparative Medicine; applications, the disclosure of which Agenda: To review and evaluate grant 93.333, Clinical Research, 93.306, 93.333, would constitute a clearly unwarranted applications. 93.337, 93.393–93.396, 93.837–93.844, invasion of personal privacy. Place: Melrose Hotel, 2430 Pennsylvania 93.846–93.878, 93.892, 93.893, National Avenue, NW., Washington, DC 20037. Institutes of Health, HHS) Name of Committee: Microbiology, Contact Person: Alessandra M. Bini, PhD, Infectious Diseases and AIDS Initial Review Scientific Review Officer, Center for Dated: June 8, 2009. Group; Acquired Immunodeficiency Scientific Review, National Institutes of Jennifer Spaeth, Syndrome Research Review Committee. Health, 6701 Rockledge Drive, Room 5142, Director, Office of Federal Advisory Date: July 13, 2009. MSC 7840, Bethesda, MD 20892, 301–435– Committee Policy. Time: 8 a.m. to 5 p.m. 1024, [email protected]. [FR Doc. E9–13939 Filed 6–12–09; 8:45 am] Agenda: To review and evaluate grant Name of Committee: Center for Scientific BILLING CODE 4140–01–P applications. Review, Special Emphasis Panel; Infectious Place: DoubleTree Hotel and EMC, 8120 Agent and Toxin Detection, Disinfection and Wisconsin Ave, Bethesda, MD 20814. Bioremediation. DEPARTMENT OF HEALTH AND Date: July 24, 2009. Contact Person: Erica L. Brown, PhD, Time: 8:30 a.m. to 10 p.m. HUMAN SERVICES Scientific Review Officer, Scientific Review Agenda: To review and evaluate grant Program, Division of Extramural Activities, applications. National Institutes of Health National Institutes of Health/NIAID, 6700B Place: National Institutes of Health, 6701 Rockledge Drive, MSC 7616, Bethesda, MD National Center for Research Rockledge Drive, Bethesda, MD 20892, 20892–7616, 301–451–2639, Resources; Amended Notice of (Virtual Meeting). [email protected]. Contact Person: Richard G. Kostriken, PhD, Meeting Scientific Review Officer, Center for (Catalogue of Federal Domestic Assistance Scientific Review, National Institutes of Notice is hereby given of a change in Program Nos. 93.855, Allergy, Immunology, Health, 6701 Rockledge Drive, Room 3192, the meeting of the National Center for and Transplantation Research; 93.856, MSC 7808, Bethesda, MD 20892, 301–402– Research Resources Special Emphasis Microbiology and Infectious Diseases 4454, [email protected]. Panel, July 20, 2009, 8 a.m. to July 24, Research, National Institutes of Health, HHS)

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Dated: June 8, 2009. DEPARTMENT OF HOMELAND infrastructure resilience, reconstituting Jennifer Spaeth, SECURITY CIKR assets and systems for both man- Director, Office of Federal Advisory [Docket No. DHS–2009–0087] made as well as naturally occurring Committee Policy. events; and sharing threat, vulnerability, [FR Doc. E9–13949 Filed 6–12–09; 8:45 am] The Critical Infrastructure Partnership risk mitigation, and infrastructure BILLING CODE 4140–01–P Advisory Council (CIPAC) continuity information and best practices. AGENCY: National Protection and Programs Directorate, DHS. Organizational Structure: CIPAC DEPARTMENT OF HEALTH AND members are organized into eighteen ACTION: Update of CIPAC council HUMAN SERVICES HSPD–7 critical infrastructure and/or membership. key resource sectors. Within all of the National Institutes of Health SUMMARY: The Department of Homeland sectors containing private sector CIKR National Institute of Diabetes and Security (DHS) announced the owners/operators there generally exists Digestive and Kidney Diseases; Notice establishment of the Critical a Sector Coordinating Council (SCC) of Closed Meeting Infrastructure Partnership Advisory that includes CIKR owners and/or Council (CIPAC) by notice published in operators or their representative trade Pursuant to section 10(d) of the the Federal Register Notice (71FR associations. Each of the sectors also has Federal Advisory Committee Act, as 14930–14933) dated March 24, 2006. a Government Coordinating Council amended (5 U.S.C. App.), notice is That notice identified the purpose of (GCC) whose membership includes a hereby given of the following meeting. CIPAC as well as its membership. This lead Federal agency that is defined as notice provides (i) the quarterly CIPAC The meeting will be closed to the the Sector Specific Agency (SSA), and membership update, (ii) instructions on public in accordance with the all of the relevant Federal, State, local, how the public can obtain the CIPAC provisions set forth in sections Tribal, and/or Territorial government membership roster and other 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., agencies (or their representative bodies) information on the Council, and (iii) as amended. The grant applications and whose mission interests also involve the information on recently completed the discussions could disclose scope of the CIPAC activities for that CIPAC meetings. confidential trade secrets or commercial particular sector. property such as patentable material, FOR FURTHER INFORMATION CONTACT: Nancy Wong, Director Partnership CIPAC Membership: CIPAC and personal information concerning Membership includes (i) CIKR owner individuals associated with the grant Programs and Information Sharing Office, Partnership and Outreach and/or operator members of an SCC; (ii) applications, the disclosure of which trade association members who are would constitute a clearly unwarranted Division, Office of Infrastructure members of a SCC representing the invasion of personal privacy. Protection, National Protection and Programs Directorate, United States interests of CIKR owners and/or Name of Committee: National Institute of Department of Homeland Security, operators. CIKR owners and operators Diabetes and Digestive and Kidney Diseases Washington, DC 20528, telephone (703) own and invest in infrastructure assets Special Emphasis Panel; CF Center 235–3999 or via e-mail at or in the systems and processes to Competitive Revisions. [email protected]. secure them. CIKR owners and/or Date: July 29, 2009. Responsible DHS Official: Nancy J. operators are held responsible by the Time: 3 p.m. to 4 p.m. Wong, Director Partnership Programs public for CIKR operations and the Agenda: To review and evaluate grant and Information Sharing Office, response and recovery when their CIKR applications. Partnership and Outreach Division, Place: National Institutes of Health, Two assets and systems are disrupted; (iii) Office of Infrastructure Protection, each sector’s Government Coordinating Democracy Plaza, 6707 Democracy National Protection and Programs Boulevard, Bethesda, MD 20892, (Telephone Council (GCC); and, based upon DHS’ Directorate, United States Department of Conference Call) recent establishment of this council; (iv) Homeland Security, Washington, DC Contact Person: Michele L. Barnard, PhD, State, local, Tribal, and Territorial 20528, telephone (703) 235–3999 or via Scientific Review Officer, Review Branch, governmental officials comprising the e-mail at [email protected]. DEA, NIDDK, National Institutes of Health, DHS State, local, Tribal, Territorial GCC. SUPPLEMENTARY INFORMATION: Room 753, 6707 Democracy Boulevard, CIPAC Membership Roster and Purpose and Activity: CIPAC Bethesda, MD 20892–2542, (301) 594–8898, Council Information: The current roster [email protected]. facilitates interaction between government officials and representatives of CIPAC membership is published on (Catalogue of Federal Domestic Assistance the CIPAC Web site (http:// Program Nos. 93.847, Diabetes, of the community of owners and/or operators for each of the critical www.dhs.gov/cipac) and is updated as Endocrinology and Metabolic Research; the CIPAC membership changes. 93.848, Digestive Diseases and Nutrition infrastructure or key resource (CIKR) Members of the public may visit the Research; 93.849, Kidney Diseases, Urology sectors defined by Homeland Security and Hematology Research; 93.701, ARRA Presidential Directive 7 (HSPD–7) and CIPAC Web site at any time to obtain Related Biomedical Research and Research identified in the National Infrastructure current CIPAC membership as well as Support Awards, National Institutes of Protection Plan (NIPP). The scope of the current and historic list of CIPAC Health, HHS) activities covered by CIPAC includes meetings and agendas. planning; coordinating among Dated: June 8, 2009. Dated: June 1, 2009. government and CIKR owner/operator Nancy Wong, Jennifer Spaeth, security partners; implementing security Director, Office of Federal Advisory program initiatives; conducting Designated Federal Officer for the CIPAC. Committee Policy. operational activities related to critical [FR Doc. E9–13887 Filed 6–12–09; 8:45 am] [FR Doc. E9–13940 Filed 6–12–09; 8:45 am] infrastructure protection security BILLING CODE 9110–9P–P BILLING CODE 4140–01–P measures, incident response, recovery,

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DEPARTMENT OF HOMELAND (4) Minimize the burden of the activities that are critical to carrying out SECURITY collection of information on those who its transportation security mission. are to respond, including using The CSR is an ‘‘instructive’’ review Transportation Security Administration appropriate automated, electronic, that provides TSA with an mechanical, or other technological understanding of certain surface Intent To Request Approval From OMB collection techniques or other forms of transportation owner/operators’ security of One New Public Collection of information technology. programs, if they have adopted such Information: Highway Corporate Information Collection Requirement programs. In carrying out CSRs, Security Review Transportation Security Specialists from Reinstatement of OMB Control AGENCY: Transportation Security TSA’s Highway and Motor Carrier Number 1652–0036; Corporate Security Administration, DHS. Division and Transportation Security Review. Under the Aviation and Inspectors—Surface (TSI–S) conduct ACTION: Notice of reinstatement. 1 Transportation Security Act (ATSA) site visits of trucking, school bus, and SUMMARY: The Transportation Security and delegated authority from the motor coach companies and State DOTs Administration (TSA) invites public Secretary of Homeland Security, TSA throughout the nation. The TSA comment on an information collection has broad responsibility and authority representatives analyze the owner’s/ requirement abstracted below that we for ‘‘security in all modes of operator’s security plan, if the owner/ will submit to the Office of Management transportation * * * including security operator has adopted one, and and Budget (OMB) for approval in responsibilities * * * over modes of determine if the mitigation measures compliance with the Paperwork transportation that are exercised by the 2 included in the plan are being properly Reduction Act. This collection will Department of Transportation,’’ TSA implemented. In addition to examining assess the current security practices in has additional authorities as well. TSA the security plan document, TSA is specifically empowered to develop the highway and motor carrier industry reviews one or more assets of the policies, strategies, and plans for by way of its Highway Corporate 3 owner/operator or State DOT. Security Program, which encompasses dealing with threats to transportation, ensure the adequacy of security During the site visits, TSA completes site visits and interviews, and is part of a CSR form, which asks questions the larger domain awareness, measures for the transportation of cargo,4 oversee the implementation and concerning eleven topics: Management prevention, and protection program ensure the adequacy of security and oversight of the security plan, threat supporting TSA’s and the Department of measures at transportation facilities,5 assessment, criticality assessment, Homeland Security’s missions. and carry out other appropriate duties vulnerability assessment, personnel DATES: Submit comments by August 14, relating to transportation security.6 security, training, physical security 2009. One way TSA carries out its surface countermeasures, en route security, ADDRESSES: Comments may be mailed transportation responsibilities is by information technology security, or delivered to Ginger LeMay, PRA assessing the current security practices security exercises and drills, and a Officer, Office of Information in the trucking, school bus, and motor hazardous materials addendum. TSA Technology, Transportation Security coach industries as well as at State conducts this collection through Administration, 601 South 12th Street, Departments of Transportation (DOTs), voluntary face-to-face visits at the Arlington, VA 20598–6011. by way of its Corporate Security Review headquarters of the subject surface FOR FURTHER INFORMATION CONTACT: (CSR) program. The CSR program transportation owners/operators. Ginger LeMay, PRA Officer, Office of encompasses site visits and interviews, Typically, TSA sends one to three Information Technology, TSA–11, and is one piece of a much larger employees to conduct a two to three Transportation Security Administration, domain awareness, prevention, and hour discussion/interview with 601 South 12th Street, Arlington, VA protection program in support of TSA’s representatives from the owner/ 20598–6011; telephone (571) 227–3616; and the Department of Homeland operator. TSA plans to collect e-mail: [email protected]. Security’s missions. TSA is seeking to information from businesses of all sizes SUPPLEMENTARY INFORMATION: reinstate its OMB approval for this in the course of conducting these information collection so that TSA can surface mode CSRs. Comments Invited continue to ascertain minimum security TSA conducts these interviews to In accordance with the Paperwork standards and identify coverage gaps, ascertain information on security Reduction Act of 1995 (44 U.S.C. 3501 measures and to identify security gaps. et seq.), an agency may not conduct or 1 Public Law 107–71, 115 Stat. 597 (November 19, The interviews also provide the TSA sponsor, and a person is not required to 2001). with a method to encourage the surface 2 See 49 U.S.C. 114(d). The TSA Assistant transportation owners/operators affected respond to, a collection of information Secretary’s current authorities under ATSA have unless it displays a valid OMB control been delegated to him by the Secretary of Homeland by the CSRs to be diligent in effecting number. Therefore, in preparation for Security. Section 403(2) of the Homeland Security and maintaining security-related Act (HSA) of 2002, Public Law 107–296, 116 Stat. improvements. This program provides OMB review and approval of the 2315 (2002), transferred all functions of TSA, following information collection, TSA is including those of the Secretary of Transportation TSA with real-time information on soliciting comments to— and the Under Secretary of Transportation of current security practices within the (1) Evaluate whether the proposed Security related to TSA, to the Secretary of trucking, school bus, and motor coach Homeland Security. Pursuant to DHS Delegation modes of the surface transportation information requirement is necessary for Number 7060.2, the Secretary delegated to the the proper performance of the functions Assistant Secretary (then referred to as the sector. This information allows TSA to of the agency, including whether the Administrator of TSA), subject to the Secretary’s adapt programs to the changing threat information will have practical utility; guidance and control, the authority vested in the dynamically, while incorporating an Secretary with respect to TSA, including that in sec. understanding of the improvements (2) Evaluate the accuracy of the 403(2) of the HSA. agency’s estimate of the burden; 3 49 U.S.C. 114(f)(3). owners/operators make in their security (3) Enhance the quality, utility, and 4 49 U.S.C. 114(f)(10). posture. Without this information, the clarity of the information to be 5 49 U.S.C. 114(f)(11). ability of the TSA to perform its security collected; and 6 49 U.S.C. 114(f)(15). mission would be severely hindered.

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Additionally, the relationships these This process is conducted in accordance abstract: Primary: Individuals or face-to-face contacts foster are critical to with 5 CFR 1320.10. Households. Nonimmigrants the Federal Government’s ability to Written comments and/or suggestions temporarily residing in the United reach out to the surface transportation regarding the item(s) contained in this States use this form to request a stakeholders affected by the CSRs. The notice, especially regarding the replacement of his or her arrival relationships foster a sense of trust and estimated public burden and associated evidence document. a willingness to share information with response time, should be directed to the (5) An estimate of the total number of the Federal Government. TSA assures Department of Homeland Security respondents and the amount of time respondents that the portion of their (DHS), and to the Office of Information estimated for an average respondent to responses that is deemed Sensitive and Regulatory Affairs, Office of respond: 12,195 responses at 25 minutes Security Information will be handled as Management and Budget (OMB), USCIS (.416) per response. such, as described in 49 CFR parts 15 Desk Officer. Comments may be (6) An estimate of the total public and 1520. submitted to: USCIS, Chief, Regulatory burden (in hours) associated with the The annual hour burden for this Products Division, Clearance Office, 111 collection: 5,073 annual burden hours. information collection is estimated to be Massachusetts Avenue, Washington, DC If you need a copy of the proposed 1,200 hours. While TSA estimates a 20529–2210. Comments may also be information collection instrument, or total of 400 potential respondents, this submitted to DHS via facsimile to 202– additional information, please visit the estimate is based on TSA conducting 272–8352 or via e-mail at Web site at: http://www.regulations.gov/ 400 visits per year, each visit lasting two [email protected], and to the OMB USCIS search/index.jsp. to three hours. The total annual cost Desk Officer via facsimile at 202–395– If additional information is required burden to respondents is $0.00. 6974 or via e-mail at _ contact: USCIS, Regulatory Products oira [email protected]. Division, 111 Massachusetts Avenue, Issued in Arlington, Virginia, on June 9, When submitting comments by e- Washington, DC 20529–2210, (202) 272– 2009. mail, please make sure to add OMB 8377. Ginger LeMay, Control Number 1615–0079 in the Paperwork Reduction Act Officer, Business subject box. Written comments and Stephen Tarragon, Improvements and Communications, Office suggestions from the public and affected Deputy Chief, Regulatory Products Division, of Information Technology. agencies should address one or more of U.S. Citizenship and Immigration Services. [FR Doc. E9–13957 Filed 6–12–09; 8:45 am] the following four points: [FR Doc. E9–13998 Filed 6–12–09; 8:45 am] BILLING CODE 9110–05–P (1) Evaluate whether the collection of BILLING CODE 9111–97–P information is necessary for the proper performance of the functions of the DEPARTMENT OF HOMELAND agency, including whether the DEPARTMENT OF HOMELAND SECURITY information will have practical utility; SECURITY (2) Evaluate the accuracy of the U.S. Citizenship and Immigration agency’s estimate of the burden of the U.S. Citizenship and Immigration Services collection of information, including the Services validity of the methodology and Agency Information Collection Agency Information Collection Activities: Form I–102, Extension of a assumptions used; (3) Enhance the quality, utility, and Activities: Form I–694, Extension of a Currently Approved Information Currently Approved Information Collection; Comment Request clarity of the information to be collected; and Collection; Comment Request (4) Minimize the burden of the ACTION: 30-Day Notice of Information collection of information on those who ACTION: 30-day notice of information Collection Under Review: Form I–102, are to respond, including through the collection under review: Form I–694, Application for Replacement/Initial use of appropriate automated, Notice of Appeal of Decision Under Nonimmigrant Arrival-Departure electronic, mechanical, or other Section 210 or 245A of the Immigration Document; OMB Control No. 1615– technological collection techniques, or and Nationality Act; OMB Control No. 0079. other forms of information technology, 1615–0034. The Department of Homeland e.g., permitting electronic submission of responses. The Department of Homeland Security, U.S. Citizenship and Security, U.S. Citizenship and Immigration Services (USCIS) has Overview of This Information Immigration Services (USCIS) has submitted the following information Collection submitted the following information collection request to the Office of (1) Type of Information Collection: collection request to the Office of Management and Budget (OMB) for Extension of an existing information Management and Budget (OMB) for review and clearance in accordance collection. review and clearance in accordance with the Paperwork Reduction Act of (2) Title of the Form/Collection: with the Paperwork Reduction Act of 1995. The information collection was Application for Replacement/Initial 1995. The information collection was previously published in the Federal Nonimmigrant Arrival-Departure previously published in the Federal Register on March 10, 2009, at 74 FR Document. Register on March 10, 2009, at 74 FR 10260, allowing for a 60-day public (3) Agency form number, if any, and 10262, allowing for a 60-day public comment period. USCIS did not receive the applicable component of the comment period. USCIS did not receive any comments for this information Department of Homeland Security any comments for this information collection. sponsoring the collection: Form I–102. collection. The purpose of this notice is to allow U.S. Citizenship and Immigration The purpose of this notice is to allow an additional 30 days for public Services. an additional 30 days for public comments. Comments are encouraged (4) Affected public who will be asked comments. Comments are encouraged and will be accepted until July 15, 2009. or required to respond, as well as a brief and will be accepted until July 15, 2009.

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This process is conducted in accordance abstract: Primary: Individuals or Form I–817. Should USCIS decide to with 5 CFR 1320.10. Households. This information collection revise Form I–817 we will advise the Written comments and/or suggestions will be used by USCIS in considering public when we publish the 30-day regarding the item(s) contained in this appeals of denials or termination of notice in the Federal Register in notice, especially regarding the temporary and permanent residence accordance with the Paperwork estimated public burden and associated status by legalization applicants and Reduction Act. The public will then response time, should be directed to the special agricultural workers, under have 30 days to comment on any Department of Homeland Security sections 210 and 245A of the revisions to the Form I–817. (DHS), and to the Office of Information Immigration and Nationality Act, and Written comments and/or suggestions and Regulatory Affairs, Office of related applications for waiver of regarding the item(s) contained in this Management and Budget (OMB), USCIS grounds of inadmissibility. notice, especially regarding the Desk Officer. Comments may be (5) An estimate of the total number of estimated public burden and associated submitted to: USCIS, Chief, Regulatory respondents and the amount of time response time, should be directed to the Products Division, Clearance Office, 111 estimated for an average respondent to Department of Homeland Security Massachusetts Avenue, Washington, DC respond: 1,192 respondents at 30 (DHS), USCIS, Chief, Regulatory 20529–2210. Comments may also be minutes (.50) per response. Products Division, Clearance Officer, submitted to DHS via facsimile to 202– (6) An estimate of the total public 111 Massachusetts Avenue, NW., 272–8352 or via e-mail at burden (in hours) associated with the Washington, DC 20529–2210. [email protected], and to the OMB USCIS collection: 596 annual burden hours. Comments may also be submitted to Desk Officer via facsimile at 202–395– If you need a copy of the proposed DHS via facsimile to 202–272–8352 or 6974 or via e-mail at information collection instrument, or via e-mail at [email protected]. When [email protected]. additional information, please visit the submitting comments by e-mail, please When submitting comments by e- Web site at: http://www.regulations.gov/ make sure to add OMB Control No. mail, please make sure to add OMB search/index.jsp. 1615–0005 in the subject box. Written Control Number 1615–0034 in the If additional information is required comments and suggestions from the subject box. Written comments and contact: USCIS, Regulatory Products public and affected agencies concerning suggestions from the public and affected Division, 111 Massachusetts Avenue, the collection of information should agencies should address one or more of Washington, DC 20529–2210, (202) 272– address one or more of the following the following four points: 8377. four points: (1) Evaluate whether the collection of Dated: June 9, 2009. (1) Evaluate whether the proposed information is necessary for the proper Stephen Tarragon, collection of information is necessary performance of the functions of the for the proper performance of the Deputy Chief, Regulatory Products Division, agency, including whether the U.S. Citizenship and Immigration Services. functions of the agency, including information will have practical utility; whether the information will have [FR Doc. E9–13997 Filed 6–12–09; 8:45 am] (2) Evaluate the accuracy of the practical utility; agency’s estimate of the burden of the BILLING CODE 9111–97–P (2) Evaluate the accuracy of the collection of information, including the agencies estimate of the burden of the validity of the methodology and DEPARTMENT OF HOMELAND proposed collection of information, assumptions used; SECURITY including the validity of the (3) Enhance the quality, utility, and methodology and assumptions used; clarity of the information to be U.S. Citizenship and Immigration (3) Enhance the quality, utility, and collected; and Services clarity of the information to be (4) Minimize the burden of the collected; and collection of information on those who Agency Information Collection (4) Minimize the burden of the are to respond, including through the Activities: Form I–817; Extension of an collection of information on those who use of appropriate automated, Existing Information Collection; are to respond, including through the electronic, mechanical, or other Comment Request use of appropriate automated, technological collection techniques, or electronic, mechanical, or other other forms of information technology, AGENCY: U.S. Citizenship and technological collection techniques or e.g., permitting electronic submission of Immigration Services, Department of other forms of information technology, responses. Homeland Security. e.g., permitting electronic submission of ACTION: 60-Day Notice of Information responses. Overview of This Information Collection Under Review; Form I–817, Collection Overview of This Information Application for Family Unity Benefits; Collection (1) Type of Information Collection: OMB Control No. 1615–0005. Extension of an existing information (1) Type of Information Collection: collection. The Department Homeland Security, Extension of an existing information (2) Title of the Form/Collection: U.S. Citizenship and Immigration collection. Notice of Appeal of Decision Under Services has submitted the following (2) Title of the Form/Collection: Section 210 or 245A of the Immigration information collection request for Application for Family Unity Benefits. and Nationality Act. review and clearance in accordance (3) Agency form number, if any, and (3) Agency form number, if any, and with the Paperwork Reduction Act of the applicable component of the the applicable component of the 1995. The information collection is Department of Homeland Security Department of Homeland Security published to obtain comments from the sponsoring the collection: Form I–817; sponsoring the collection: Form I–694. public and affected agencies. Comments U.S. Citizenship and Immigration U.S. Citizenship and Immigration are encouraged and will be accepted for Services (USCIS). Services. sixty days until August 14, 2009. (4) Affected public who will be asked (4) Affected public who will be asked During this 60 day period, USCIS will or required to respond, as well as a brief or required to respond, as well as a brief be evaluating whether to revise the abstract: Primary: Individuals or

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households. The information collected estimated public burden and associated respond: 7,150 responses (introductory will be used to determine whether the response time, should be directed to the call), one response per respondent, at applicant meets the eligibility Department of Homeland Security one (.0333) 2 minutes per response. requirements for benefits under 8 CFR (DHS), and to the Office of Information 5,000 responses (questionnaire), one 236.14 and 245a.33. and Regulatory Affairs, Office of response per respondent at (0.416) 25 (5) An estimate of the total number of Management and Budget (OMB), USCIS minutes per response. respondents and the amount of time Desk Officer. Comments may be An estimate of the total public burden estimated for an average respondent to submitted to: USCIS, Chief, Regulatory (in hours) associated with the collection: respond: 6,000 responses at 2 hours per Products Division, Clearance Office, 111 2,316 annual burden hours. response. Massachusetts Avenue, Washington, DC If you need a copy of the information (6) An estimate of the total public 20529–2210. Comments may also be collection instrument, please visit the burden (in hours) associated with the submitted to DHS via facsimile to 202– Web site at: http://www.regulations.gov/ collection: 12,000 annual burden hours. 272–8352 or via e-mail at fdmspublic/component/main. If you need a copy of the information [email protected], and to the OMB USCIS We may also be contacted at: USCIS, collection instrument, please visit the Desk Officer via facsimile at 202–395– Regulatory Products Division, 111 Web site at: http:// 6974 or via e-mail at Massachusetts Avenue, NW., www.regulations.gov/. [email protected]. Washington, DC 20529–2210, telephone We may also be contacted at: USCIS, When submitting comments by e-mail number 202–272–8377. Regulatory Products Division, 111 please make sure to add OMB–52 in the Dated: June 9, 2009. Massachusetts Avenue, NW., subject box. Written comments and Stephen Tarragon, Washington, DC 20529–2210, suggestions from the public and affected Telephone number 202–272–8377. agencies should address one or more of Deputy Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Dated: June 10, 2009. the following four points: Department of Homeland Security. (1) Evaluate whether the proposed Stephen Tarragon, [FR Doc. E9–13994 Filed 6–12–09; 8:45 am] collection of information is necessary Deputy Chief, Regulatory Products Division, BILLING CODE 9111–97–P U.S. Citizenship and Immigration Services, for the proper performance of the Department of Homeland Security. functions of the agency, including [FR Doc. E9–13996 Filed 6–12–09; 8:45 am] whether the information will have DEPARTMENT OF HOMELAND practical utility; BILLING CODE 9111–97–P SECURITY (2) Evaluate the accuracy of the agencies estimate of the burden of the Transportation Security Administration DEPARTMENT OF HOMELAND proposed collection of information, SECURITY including the validity of the Intent To Request Renewal From OMB methodology and assumptions used; of One Current Public Collection of U.S. Citizenship and Immigration (3) Enhance the quality, utility, and Information: Employment Standards Services clarity of the information to be collected; and AGENCY: Transportation Security Agency Information Collection (4) Minimize the burden of the Administration, DHS. Activities: Survey of Recently collection of information on those who ACTION: 60-day Renewal Notice. Naturalized Citizens; New Information are to respond, including through the Collection; Comment Request use of appropriate automated, SUMMARY: The Transportation Security electronic, mechanical, or other Administration (TSA) invites public ACTION: 30-day notice of information technological collection techniques or comment on one currently approved collection under review: Survey of other forms of information technology, Information Collection Request (ICR), recently naturalized citizens. e.g., permitting electronic submission of OMB control number 1652–0006, responses. abstracted below that we will submit to The Department of Homeland the Office of Management and Budget Security, U.S. Citizenship and Overview of This Information (OMB) for renewal in compliance with Immigration Services (USCIS) has Collection the Paperwork Reduction Act. The ICR submitted the following information (1) Type of Information Collection: describes the nature of the information collection request to the Office of New information collection. collection and its expected burden. The Management and Budget (OMB) for (2) Title of the Form/Collection: collection involves the requirement for review and clearance in accordance Survey of Recently Naturalized Citizens. airport and aircraft operators to with the Paperwork Reduction Act of (3) Agency form number, if any, and maintain records of compliance with 49 1995. The information collection was the applicable component of the CFR parts 1542 and 1544. previously published in the Federal Department of Homeland Security DATES: Send your comments by August Register on April 8, 2009, at 74 FR sponsoring the collection: No Agency 14, 2009. 15999, allowing for a 60-day public Form Number; File No. OMB–52. U.S. ADDRESSES: Comments may be mailed comment period. USCIS did not receive Citizenship and Immigration Services. or delivered to Ginger LeMay, Office of any comments. (4) Affected public who will be asked Information Technology, TSA–11, The purpose of this notice is to allow or required to respond, as well as a brief Transportation Security Administration, an additional 30 days for public abstract: Primary: Individuals or 601 South 12th Street, Arlington, VA comments. Comments are encouraged Households. USCIS will use this survey 20598–6011. and will be accepted until July 15, 2009. to collect data from recently naturalized This process is conducted in accordance citizens to help predict future FOR FURTHER INFORMATION CONTACT: with 5 CFR 1320.10. naturalization trends. Ginger LeMay at the above address, or Written comments and/or suggestions (5) An estimate of the total number of by telephone (571) 227–3616 or e-mail regarding the item(s) contained in this respondents and the amount of time [email protected]. notice, especially regarding the estimated for an average respondent to SUPPLEMENTARY INFORMATION:

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Comments Invited DEPARTMENT OF HOMELAND a period not to exceed six months after SECURITY the date of this declaration. In accordance with the Paperwork The Federal Emergency Management Reduction Act of 1995 (44 U.S.C. 3501 Federal Emergency Management Agency (FEMA) hereby gives notice that et seq.), an agency may not conduct or Agency pursuant to the authority vested in the sponsor, and a person is not required to Administrator, under Executive Order respond to, a collection of information [Internal Agency Docket No. FEMA–1840– DR; Docket ID FEMA–2008–0018] 12148, as amended, Jeffery L. Bryant, of unless it displays a valid OMB control FEMA is appointed to act as the Federal number. The ICR documentation is Florida; Major Disaster and Related Coordinating Officer for this major available at http://www.reginfo.gov. Determinations disaster. Therefore, in preparation for OMB The following areas of the State of review and approval of the following AGENCY: Federal Emergency Florida have been designated as information collection, TSA is soliciting Management Agency, DHS. adversely affected by this major disaster: comments to— ACTION: Notice. Volusia County for Individual Assistance. (1) Evaluate whether the proposed SUMMARY: This is a notice of the The following Catalog of Federal Domestic information requirement is necessary for Presidential declaration of a major Assistance Numbers (CFDA) are to be used the proper performance of the functions disaster for the State of Florida (FEMA– for reporting and drawing funds: 97.030, of the agency, including whether the 1840–DR), dated May 27, 2009, and Community Disaster Loans; 97.031, Cora information will have practical utility; related determinations. Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, (2) Evaluate the accuracy of the DATES: Effective Date: May 27, 2009. agency’s estimate of the burden; Disaster Unemployment Assistance (DUA); FOR FURTHER INFORMATION CONTACT: 97.046, Fire Management Assistance Grant; (3) Enhance the quality, utility, and Peggy Miller, Disaster Assistance 97.048, Disaster Housing Assistance to clarity of the information to be Directorate, Federal Emergency Individuals and Households In Presidentially collected; and Management Agency, 500 C Street, SW., Declared Disaster Areas; 97.049, (4) Minimize the burden of the Washington, DC 20472, (202) 646–3886. Presidentially Declared Disaster Assistance— Disaster Housing Operations for Individuals collection of information on those who SUPPLEMENTARY INFORMATION: Notice is and Households; 97.050, Presidentially are to respond, including using hereby given that, in a letter dated May Declared Disaster Assistance to Individuals appropriate automated, electronic, 27, 2009, the President issued a major and Households—Other Needs; 97.036, mechanical, or other technological disaster declaration under the authority Disaster Grants—Public Assistance collection techniques or other forms of of the Robert T. Stafford Disaster Relief (Presidentially Declared Disasters); 97.039, information technology. and Emergency Assistance Act, 42 Hazard Mitigation Grant.) U.S.C. 5121–5207 (the Stafford Act), as Information Collection Requirement W. Craig Fugate, follows: Administrator, Federal Emergency OMB Control Number 1652–0006; I have determined that the damage in certain Management Agency. Employment Standards, 49 CFR parts areas of the State of Florida resulting from [FR Doc. E9–14040 Filed 6–12–09; 8:45 am] 1542 and 1544. The information severe storms, flooding, tornadoes, and BILLING CODE 9111–23–P collected is used to determine straight-line winds beginning on May 17, compliance with 49 CFR parts 1542 and 2009, and continuing, is of sufficient severity and magnitude to warrant a major disaster 1544. Airport operators maintain DEPARTMENT OF HOMELAND records of compliance with part 1542 declaration under the Robert T. Stafford Disaster Relief and Emergency Assistance SECURITY for those employees with access Act, 42 U.S.C. 5121–5207 (the ‘‘Stafford privileges to Security Identification Act’’). Therefore, I declare that such a major Federal Emergency Management Display Areas of the airport. Aircraft disaster exists in the State of Florida. Agency operators maintain records of In order to provide Federal assistance, you [Internal Agency Docket No. FEMA–1838– compliance with part 1544 for selected are hereby authorized to allocate from funds DR; Docket ID FEMA–2008–0018] crew and security employees. TSA available for these purposes such amounts as Transportation Security Inspectors you find necessary for Federal disaster West Virginia; Amendment No. 2 to assistance and administrative expenses. (TSIs) review these records to ensure Notice of a Major Disaster Declaration that the safety and security of the public You are authorized to provide Individual Assistance in the designated areas and any is not compromised, to include using AGENCY: Federal Emergency other forms of assistance under the Stafford Management Agency, DHS. this information to take corrective Act that you deem appropriate. Consistent action when necessary. These with the requirement that Federal assistance ACTION: Notice. regulations establish procedures that is supplemental, any Federal funds provided airports and airlines must carry out to under the Stafford Act for Other Needs SUMMARY: This notice amends the notice protect persons and property against Assistance will be limited to 75 percent of of a major disaster declaration for the acts of criminal violence, aircraft piracy, the total eligible costs. If Public Assistance State of West Virginia (FEMA–1838– and terrorist activities. The current and Hazard Mitigation are later requested DR), dated May 15, 2009, and related estimated annual reporting burden is and warranted, Federal funds provided under determinations. those programs will also be limited to 75 183,506 hours. percent of the total eligible costs. DATES: Effective Date: June 2, 2009. Issued in Arlington, Virginia, on June 9, Further, you are authorized to make changes FOR FURTHER INFORMATION CONTACT: 2009. to this declaration to the extent allowable Peggy Miller, Disaster Assistance Ginger LeMay, under the Stafford Act. Directorate, Federal Emergency Paperwork Reduction Act Officer, Business The time period prescribed for the Management Agency, 500 C Street, SW., Improvements and Communications, Office implementation of section 310(a), Washington, DC 20472, (202) 646–3886. of Information Technology. Priority to Certain Applications for SUPPLEMENTARY INFORMATION: The notice [FR Doc. E9–13958 Filed 6–12–09; 8:45 am] Public Facility and Public Housing of a major disaster declaration for the BILLING CODE 9110–05–P Assistance, 42 U.S.C. 5153, shall be for State of West Virginia is hereby

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amended to include the following areas DEPARTMENT OF THE INTERIOR Please provide a copy of your comments among those areas determined to have to Hope Grey, Information Collection been adversely affected by the event Fish and Wildlife Service Clearance Officer, Fish and Wildlife declared a major disaster by the [FWS-R9-WSR-2009-N125] [[91400-5110- Service, MS 222-ARLSQ, 4401 North President in his declaration of May 15, POLI-7B and 91400-9410-POLI-7B] Fairfax Drive, Arlington, VA 22203 2009. (mail) or [email protected] (e-mail). Information Collection Sent to the FOR FURTHER INFORMATION CONTACT: To Calhoun, Gilmer, Lewis, Roane, Upshur, Office of Management and Budget and Wirt Counties for Public Assistance. request additional information about (OMB) for Approval; OMB Control this ICR, contact Hope Grey by mail or The following Catalog of Federal Domestic Number 1018-0109; Wildlife and Sport Assistance Numbers (CFDA) are to be used e-mail (see ADDRESSES) or by Fish Grants and Cooperative telephone at (703) 358–2482. for reporting and drawing funds: 97.030, Agreements Community Disaster Loans; 97.031, Cora SUPPLEMENTARY INFORMATION: Brown Fund; 97.032, Crisis Counseling; AGENCY: Fish and Wildlife Service, OMB Control Number: 1018-0109. 97.033, Disaster Legal Services; 97.034, Interior. Title: Wildlife and Sport Fish Grants Disaster Unemployment Assistance (DUA); ACTION: Notice; request for comments. and Cooperative Agreements. 97.046, Fire Management Assistance Grant; SUMMARY: Service Form Number(s): None. 97.048, Disaster Housing Assistance to We (Fish and Wildlife Service) have sent an Information Type of Request: Revision of a Individuals and Households in Presidentially currently approved collection. Declared Disaster Areas; 97.049, Collection Request (ICR) to OMB for Presidentially Declared Disaster Assistance— review and approval. The ICR, which is Affected Public: States; the Disaster Housing Operations for Individuals summarized below, describes the nature Commonwealths of Puerto Rico and the and Households; 97.050, Presidentially of the collection and the estimated Northern Mariana Islands; the District of Declared Disaster Assistance to Individuals burden and cost. OMB approval for this Columbia; the territories of Guam, U.S. and Households—Other Needs; 97.036, information collection is scheduled to Virgin Islands, and American Samoa; Disaster Grants—Public Assistance expire on June 30, 2009. We may not federally-recognized tribal governments; (Presidentially Declared Disasters); 97.039, conduct or sponsor and a person is not institutions of higher education; and Hazard Mitigation Grant. required to respond to a collection of nongovernmental organizations. information unless it displays a Respondent’s Obligation: Required to W. Craig Fugate, currently valid OMB control number. obtain or retain a benefit. Administrator, Federal Emergency However, under OMB regulations, we Frequency of Collection: We require Management Agency. may continue to conduct or sponsor this applications annually for new grants. [FR Doc. E9–14041 Filed 6–12–09; 8:45 am] information collection while it is We require amendments on occasion BILLING CODE 9111–23–P pending at OMB. when key elements of a project change. DATES: You must send comments on or We require quarterly and final before July 15, 2009. performance reports in the National ADDRESSES: Send your comments and Outreach and Communication Program suggestions on this information and annual and final performance collection to the Desk Officer for the reports in the other 17 programs. We Department of the Interior at OMB-OIRA may require more frequent reports at (202) 395-5806 (fax) or under the conditions stated at 43 CFR [email protected] (e-mail). 12.52 and 43 CFR 12.914.

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

Initial Application (project narrative) ...... 200 2,500 40 hours ...... 100,000 Amendment ...... 150 1,500 2 hours...... 3,000 Performance Reports ...... 200 3,500 6 hours ...... 21,000 Totals ...... 550 7,500 ...... 124,000

Abstract: We administer 18 wildlife proposals are available on Grants.gov. request that OMB renew this and sport fish financial assistance We use the application to determine: information collection. In that notice, programs. For a list of the programs (1) Eligibility for the grant. we solicited comments for 60 days, included in this information collection, (2) The scale of resource values or ending on May 18, 2009. We received see our previous notice published on relative worth of the project. one comment in response to the notice. (3) The effect of the project on March 18, 2009 (74 FR 11596). We The commenter stated that many of the environmental and cultural resources. provide most of this financial assistance grant programs ‘‘need cutting’’ and as grants, but cooperative agreements (4) How well the proposed project will meet the purposes of the program’s opposed any expenditure of public are possible if the Federal Government establishing legislation. funds for hunter education and safety is substantially involved in carrying out Persons or entities receiving grants training. The commenter did not the project. must submit periodic performance address the information collection To compete for financial assistance reports that contain information requirements, and we did not did not funds, you must submit an application necessary for us to track costs and make any changes based on this that describes in substantial detail accomplishments. comment. project locations, benefits, funding, and Comments: On March 18, 2009, we We again invite comments concerning other characteristics. Materials to assist published in the Federal Register (74 this information collection on: applicants in formulating project FR 11596) a notice of our intent to

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(1) Whether or not the collection of Complex office, located in Newport, WSP/EA by publishing a Notice of information is necessary, including Oregon, manages the Refuges, which are Intent in the Federal Register on whether or not the information will scattered along the Oregon coast in October 26, 2006 (71 FR 62605), have practical utility; Clatsop, Tillamook, Lincoln, Lane, Coos, announcing our intention to complete a (2) The accuracy of our estimate of the and Curry Counties. CCP/WSP/EA for the Refuges and burden for this collection of DATES: To ensure consideration, we inviting public comments. A list of information; need to receive your written comments public involvement efforts we have (3) Ways to enhance the quality, by July 15, 2009. See ADDRESSES for completed to date follow. utility, and clarity of the information to delivery options. • In October 2006, we distributed be collected; and ADDRESSES: Address comments on the Planning Update 1 to our project (4) Ways to minimize the burden of mailing list and public outlets located the collection of information on Draft CCP/WSP/EA to: Roy Lowe, Project Leader, Oregon Coast National near one or more Refuges. In it, we respondents. announced the initiation of the planning Comments that you submit in Wildlife Refuge Complex, 2127 SE Marine Science Drive, Newport, OR process, invited the public to a series of response to this notice are a matter of public open house meetings, provided public record. Before including your 97365–5258; fax (541) 867–4551; or e- mail [email protected]. background information on the Refuges, address, phone number, e-mail address, and requested public comments on or other personal identifying Please use ‘‘Oregon Islands CCP’’ in the subject. Additional information Refuge management issues. information in your comment, you • concerning the Refuges can be found on Between November 1 and 15, 2006, should be aware that your entire we held five public open house comment, including your personal the Internet at http://www.fws.gov/ oregoncoast/. For more information on meetings in communities along the identifying information, may be made Oregon coast, to meet the public and publicly available at any time. While reviewing documents, see ‘‘Public Availability of Documents’’ and ‘‘Public obtain comments on refuge management you can ask OMB in your comment to issues. The public meetings were withhold your personal identifying Comments’’ under SUPPLEMENTARY INFORMATION. announced through local media via information from public review, we press releases, on the Refuge Complex cannot guarantee that it will be done. FOR FURTHER INFORMATION CONTACT: Roy Web site, and in Planning Update 1. Dated: June 9, 2009 Lowe, Project Leader, (541) 867–4550. • In March 2007, we distributed Hope Grey, SUPPLEMENTARY INFORMATION: Planning Update 2, which included a Information Collection Clearance Officer, Background summary of the public open house Fish and Wildlife Service. meetings and the public comments we FR Doc. E9–14036 Filed 6–12–09; 8:45 am The CCP Process obtained at the meetings and through BILLING CODE 4310–55–S The Draft CCP/WSP/EA was prepared other means, a planning schedule, and pursuant to the National Wildlife Refuge draft vision statements for the Refuges. System Administration Act of 1966 (16 Overview of the Refuges DEPARTMENT OF THE INTERIOR U.S.C. 668dd–668ee) (Administration Cape Meares Refuge is located on Fish and Wildlife Service Act), as amended by the National Wildlife Refuge System Improvement Oregon’s Pacific Coast between [FWS–R1–R–2009–N0093]; [1265–0000– Act of 1997; the National Environmental Tillamook Bay and Netarts Bay. It is 10137–S3] Policy Act of 1969, (42 U.S.C. 4321 et comprised of two separate units seq.) (NEPA); and the Service’s consisting of vertical coastal cliffs, rock Oregon Islands, Three Arch Rocks, Wilderness Stewardship Policy (610 FW outcroppings, and rolling headlands and Cape Meares National Wildlife 3). The Administration Act requires us with old-growth forest dominated by Refuges, Lincoln County, OR to develop a CCP for each national Sitka spruce and western hemlock. This AGENCY: Fish and Wildlife Service, wildlife refuge. The purpose of small Refuge protects one of the last Interior. developing a CCP is to provide refuge stands of old-growth coastal forest in Oregon. The vertical sea cliffs around ACTION: Notice of availability: draft managers a 15-year plan for achieving comprehensive conservation plan, draft refuge purposes and contributing the headland support nesting seabird wilderness stewardship plan, and toward the mission of the National populations including tufted puffins, environmental assessment; request for Wildlife Refuge System, consistent with common murres, pigeon guillemots, comments. sound principles of fish and wildlife pelagic cormorants, and others. management, conservation, legal Peregrine falcons nest on the cliffs, and SUMMARY: We, the U.S. Fish and mandates, and Service policies. In bald eagles forage on the headland. Wildlife Service (Service), announce the addition to outlining broad management The Oregon Islands Refuge includes availability of our draft comprehensive direction for conserving wildlife and 1,854 rocks, reefs and islands, and two conservation plan and environmental habitats, CCPs identify wildlife- headland units, and spans 320 miles of assessment (Draft CCP/EA) for the Cape dependent recreational opportunities the Oregon Coast. With the exception of Meares, Oregon Islands, and Three Arch available to the public, including the two headlands and Tillamook Rock, Rocks National Wildlife Refuges hunting, fishing, wildlife observation all of the Refuge’s rocks, reefs, and (Refuges), and a draft wilderness and photography, and environmental islands are included in the Oregon stewardship plan (Draft WSP) for the education and interpretation. We will Islands Wilderness. Most of Oregon’s Oregon Islands and Three Arch Rocks review and update the CCP at least estimated 1.2 million nesting seabirds Refuges (collectively Draft CCP/WSP/ every 15 years in accordance with the are found on this Refuge. A large EA). The Draft CCP/WSP/EA is available Administration Act. percentage of Oregon’s seal and sea lion for public review and comment. It (pinnipeds) populations use the Refuge describes our proposal for managing the Public Involvement for haulout and/or pupping, including Refuges for the next 15 years. The We began the public scoping phase of more than 5,000 harbor seals, 4,000 Oregon Coast National Wildlife Refuge the planning process for the Draft CCP/ California sea lions, 4,000 threatened

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Steller sea lions, and 100 northern based inventory and monitoring become part of the official public record elephant seals. program for pinnipeds, seabirds and and may be released. Requests for such The Three Arch Rocks Refuge is other migratory birds, terrestrial comments will be handled in located a half-mile west of the town of mammals, reptiles, amphibians, accordance with the Freedom of Oceanside in Tillamook County, invertebrates, and plant species, and Information Act (5 U.S.C. 552), NEPA Oregon. The Refuge is comprised of 9 invasive species would be monitored regulations, and Service and rocks and islands with a total land area and aggressively treated. Department of the Interior policies and of 15 acres, and supports one of the Partners would be actively sought to procedures. largest seabird breeding colonies— collaborate on research, design, and Dated: May 11, 2009. mainly tufted puffins and common implementation of studies that would David J. Wesley, murre—in Oregon. It is also the only directly contribute toward maintaining breeding site for the threatened Steller or restoring the biological integrity, Regional Director, Region 1, Portland, Oregon. sea lion on the north coast of Oregon. diversity, and environmental health of [FR Doc. E9–13564 Filed 6–12–09; 8:45 am] The Refuge is a designated wilderness the Refuges. We would establish formal BILLING CODE 4310–55–P area known as Three Arch Rocks agreements with coastal resource Wilderness. management agencies to cooperate on DEPARTMENT OF THE INTERIOR Draft Alternatives We Are Considering strategies to protect wildlife. New partnerships would also be Fish and Wildlife Service We identified and evaluated two established with public and private alternatives for managing the Refuges entities to develop interpretive panels [FWS–R8–R–2009–N0070; 80230–1265– for the next 15 years. Alternative 1 is the and new wildlife viewing opportunities. 0000–53] No Action Alternative, and Alternative The Refuges’ Volunteer Interpreter 2 is the Preferred Alternative, which is Program would be expanded to include Modoc National Wildlife Refuge, a collaborative approach to protection priority sites with heavy visitation and Modoc County, CA and management of refuge lands. Draft prime wildlife viewing opportunities. AGENCY: Fish and Wildlife Service, compatibility determinations for public We would also develop a quality Interior. uses are available for review with the environmental education program ACTION: Notice of availability: draft Draft CCP/WSP/EA. Brief descriptions focusing on the Refuges’ wildlife. of the alternatives follow. comprehensive conservation plan and Public Availability of Documents environmental assessment; request for Alternative 1 comments. We encourage you to stay involved in This alternative assumes no change the CCP planning process by reviewing SUMMARY: We, the U.S. Fish and from current Refuge management and commenting on the proposals we Wildlife Service (Service), announce the programs. We would continue to protect have developed in the Draft CCP/WSP/ availability of a draft comprehensive and maintain habitat for priority EA. conservation plan (CCP) and species, including seabirds and Copies of the Draft CCP/WSP/EA on environmental assessment (EA) for pinnipeds. Efforts to prevent wildlife compact disk are available upon request Modoc National Wildlife Refuge (NWR) disturbance on rocks, reefs, and islands from the Refuge Complex at phone for public review and comment. In these would continue, including prohibiting number (541) 867–4550. Copies may be documents, we describe alternatives, public access, posting educational and reviewed at the Oregon Coast National including our preferred alternative, to regulatory signs, and deploying buoys Wildlife Refuge Complex, 2127 SE manage this refuge for the 15 years annually, to delineate the seasonal 500- Marine Science Drive, Newport, OR. following approval of the final CCP. foot watercraft exclusion buffer zone The Draft CCP/WSP/EA is also available Draft compatibility determinations for around Three Arch Rocks Refuge. for viewing and downloading on the several public uses are also available for Habitat management would consist Internet at http://www.fws.gov/ review and public comment in the Draft primarily of monitoring and treating oregoncoast/. Printed copies will be CCP/EA. invasive plant infestations as funding available for review at the following allows. We would continue to conduct DATES: To ensure consideration, we libraries. must receive your written comments by regularly scheduled aerial, boat, and • Chetco Community Public Library, July 30, 2009. We will announce land surveys of nesting seabirds. 405 Alder St., Brookings, OR 97415, Existing public uses, including wildlife • Bandon Public Library, 1204 11th upcoming public meeting in local news observation and photography, would St. SW., Bandon, OR 97411, media. continue at current levels. We would • Newport Public Library, 35 NW Nye ADDRESSES: You may submit comments continue to partner with Oregon Parks St., Newport, OR 97365, or requests for copies or more and Recreation Department (OPRD) to • Driftwood Public Library, 801 SW information by any of the following provide quality wildlife viewing Hwy 101 #201, Lincoln City, OR 97367, methods. You may request hard copies opportunities at Cape Meares Refuge • Tillamook County Library, 1716 3rd or a CD–ROM of the documents. and other parks adjacent to rocks, reefs, St., Tillamook, OR 97141, and E-mail: [email protected]. and islands within Oregon Islands and • Seaside Public Library, 1131 Include ‘‘Modoc NWR Draft CCP and Three Arch Rocks Refuges. Broadway, Seaside, OR 97138. EA’’ in the subject line of the message. Fax: Attn: Jackie Ferrier, Refuge Alternative 2 Public Comments Planner, (530) 934–7814. Under the Preferred Alternative, a Public comments are requested, U.S. Mail: Sacramento NWR Complex, collaborative approach to protection and considered, and incorporated 752 County Road 99W, Willows, CA management of the Refuges’ rock, reef, throughout the planning process. 95988. island, and old-growth habitats would Comments on the Draft CCP/WSP/EA In-Person Drop-off, Viewing, or be emphasized over the current staff- will be analyzed by the Service and Pickup: Call (530) 233–3572 to make an directed approach. We would develop a addressed in final planning documents. appointment (necessary for view/pickup Geographic Information System (GIS) All comments received from individuals only) during regular business hours at

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the Modoc NWR, at 5364 County Road dependent recreational opportunities current management programs and is 115, Alturas, CA 96101 during business available to the public, including considered the baseline to compare hours. For more information on opportunities for hunting, fishing, other alternatives against. Under locations for viewing or obtaining wildlife observation and photography, Alternative A, the primary management documents, see ‘‘Public Availability of and environmental education and focus of the Refuge would continue to Documents’’ under SUPPLEMENTARY interpretation. We will review and be providing habitat for migrating and INFORMATION. update the CCP at least every 15 years nesting migratory and resident birds FOR FURTHER INFORMATION CONTACT: in accordance with the Improvement with an emphasis on migratory birds by Steve Clay, Project Leader at Modoc Act. restoring and maintaining wetland, riparian, and grassland habitats. The NWR, (530) 233–3572 (telephone) or Public Outreach Jackie Ferrier, Refuge Planner at Refuge would continue to offer wildlife- We started the CCP for Modoc NWR Sacramento NWR Complex at (530) dependent recreation including wildlife in August 2007. At that time and 934–2801 (telephone). observation, photography, throughout the process, public environmental education, interpretative SUPPLEMENTARY INFORMATION: comments were requested, considered, programs, fishing and hunting, with Introduction and incorporated in numerous ways. emphasis on youth and disabled Public outreach has included a public With this notice, we continue the CCP hunters. scoping meeting, planning updates, a process for Modoc NWR. We started this Under Alternative B, the Refuge CCP Web page, and Federal Register process through a notice in the Federal would emphasize management for notices. Comments we received cover Register (72 FR 44850; August 9, 2007). biological resources. Biological The 7,021 acre Modoc National topics such as wildlife, habitat, refuge opportunities would be maximized to Wildlife Refuge is located southeast of management, invasive species allow optimum wildlife and habitat Alturas, California. The Refuge was management, partnerships, and visitor management throughout the majority of established in 1960 pursuant to the services. We have considered and the Refuge. The Refuges would continue Migratory Bird Conservation Act (16 evaluated all of these comments, with its current focus of providing migratory U.S.C. 715d) and the Refuge Recreation many incorporated into the various and nesting habitat for migratory birds. Act (16 U.S.C. 460k–460 K.4). Lands alternatives addressed in the draft CCP Habitat and invasive species within the Refuge have been set aside and the EA. management programs would be for use as an inviolate sanctuary, and CCP Alternatives We Are Considering expanded. Environmental education, interpretation, wildlife observation, other management purposes, for During the public scoping process migratory birds, for incidental fish and wildlife photography, fishing, and with which we started work on this hunting, programs would be reduced. wildlife-oriented recreational draft CCP, we, other governmental development, for the protection of Under Alternative C, the Refuge partners, Tribes, and the public raised would achieve an optimal balance of natural resources, and for the several issues. Our draft CCP addresses conservation of endangered species or biological resource objectives and them. A full description of each visitor services opportunities. Habitat threatened species. alternative is in the EA. To address Located near the confluence of the management and associated biological these issues, we developed and north and south forks of the Pit River, resource monitoring would be evaluated the following alternatives, the Refuge conserves, protects, and improved. Visitor service opportunities summarized below. would focus on quality wildlife- manages a mosaic of freshwater lakes The Draft EA/CCP presents an and ponds, seasonal wetlands, irrigated dependant recreation distributed evaluation of the environmental effects throughout the Refuge. In addition, meadows, grasslands, and sagebrush/ of four alternatives for managing the juniper upland habitats. These habitats environmental education, Modoc Refuge for the next 15 years. The interpretation, wildlife observation, provide important resting, feeding, and Service proposes to implement nesting areas for ducks, geese, and other photography, fishing, and hunting Alternative C, as described in the EA. programs would be expanded beyond migratory birds including the greater Alternative C best achieves the Refuge’s sandhill crane. Alternative A. purposes, vision, and goals; contributes Under Alternative D, the Refuge Background to the Refuge System mission; addresses would emphasize management for the significant issues and relevant The CCP Process visitor services. Wildlife-dependant mandates; and is consistent with recreational opportunities would be The National Wildlife Refuge System principles of sound fish and wildlife expanded on the Refuge. Opportunities Improvement Act of 1997 (16 U.S.C. management. This alternative is for the six priority public uses: hunting, 668dd–668ee) (Improvement Act), described in more detail in the CCP. fishing, wildlife observation, which amended the National Wildlife There are many features of proposed photography, environmental education, Refuge System Administration Act of Refuge management that are common to and interpretation, would be expanded 1966, requires us to develop a CCP for all four alternatives. Features common beyond Alternatives A, B, and C. each national wildlife refuge. The to all alternatives include invasive purpose for developing a CCP is to species management, habitat Public Availability of Documents provide refuge managers with a 15-year management and restoration, In addition to any methods in plan for achieving refuge purposes and implementation of a hunting and fishing ADDRESSES, you can view or obtain contributing toward the mission of the program, and providing wildlife documents at the following locations: National Wildlife Refuge System, observation, photography, • Our Web site: http://www.fws.gov/ consistent with sound principles of fish environmental education, and modoc. and wildlife management, conservation, interpretation opportunities. There are • Public Libraries: Modoc County legal mandates, and our policies. In also many features of each alternative Library 212 West Third Street Alturas, addition to outlining broad management that are distinct. CA 96101, Cedarville Branch Library direction on conserving wildlife and Alternative A, the no action 460 Main Street, Cedarville, CA 96104, their habitats, CCPs identify wildlife- alternative, assumes no change from Conservation Library, USFWS–NCTC,

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698 Conservation Way, Shepherdstown, Management Policies 2006 for rivers Both agencies are also responsible for WV 25443 during regular library hours. and river segments in the National Park wilderness areas. The Devils Postpile System. trailhead provides one of three main Next Steps The National Park Service (NPS) will access points to the Pacific Crest and After this comment period ends, we serve as lead agency and the U.S. Forest John Muir trails as well as portals to the will analyze the comments and address Service shall assume the role of Ansel Adams and John Muir them in the form of a final CCP. cooperating agency in preparing the Wildernesses. Wilderness permits for Environmental Impact Statement (EIS). Public Availability of Comments the national forest may be obtained Devils Postpile National Monument is through the monument. Before including your address, phone working in cooperation with the Inyo Preliminary Issues: A comprehensive number, e-mail address, or other National Forest on this GMP so as to management plan that provides a broad, personal identifying information in your seamlessly address visitor opportunities long-term vision for management of comment, you should be aware that within the valley (such as facilities, Devils Postpile National Monument has your entire comment—including your transit, and overall visitor experience) never been developed. Management personal identifying information—may and resource management issues in the direction was previously provided be made publicly available at any time. upper Middle Fork San Joaquin River through Yosemite and Sequoia and While you can ask us in your comment watershed (such as watershed Kings Canyon National Parks. to withhold your personal identifying management, biodiversity, and response Programmatic strategies to protect, information from public review, we to climate change). For any actions that maintain or restore resources and cannot guarantee that we will be able to the Forest Service determines would be address visitor access, services, and do so. necessary to be undertaken on Forest development specific to the monument Dated: June 2, 2009. Service lands, the Forest Service would are needed. Consistent with NPS Planning Margaret T. Kolar, approve appropriate compliance separately. Program Standards, this GMP will: (1) Acting Regional Director, Pacific Southwest Background Information: Devils Describe the monument’s purpose, Region, Sacramento, California. Postpile National Monument was significance, and primary interpretive [FR Doc. E9–13303 Filed 6–12–09; 8:45 am] established in 1911 by presidential themes; (2) identify the fundamental BILLING CODE 4310–55–P proclamation. The 798-acre monument resources and values of the monument, rests along the Middle Fork San Joaquin its other important resources and River on the Sierra Nevada’s western values, and describe the condition of DEPARTMENT OF THE INTERIOR slope and was established to preserve these resources; (3) describe desired National Park Service the columnar formation, Devils Postpile, conditions for cultural and natural and 101-foot Rainbow Falls. The resources and visitor experiences General Management Plan; Devils formation Devils Postpile ranks as one throughout the monument; (4) develop Postpile National Monument; Mono of the world’s finest examples of management zoning to support these County, CA; Notice of Intent To columnar jointing. Its columns tower 60 desired conditions; (5) develop Prepare an Environmental Impact feet high and display an unusual alternative applications of these Statement symmetry. The monument also management zones to the monument’s preserves natural mountain scenery and landscape (i.e. zoning alternatives); (6) SUMMARY: In accordance with 102(2)(C) serves as a portal to the High Sierra address user capacity; (7) analyze of the National Environmental Policy backcountry. Both the John Muir Trail potential boundary modifications; (8) Act of 1969, the National Park Service— and Pacific Crest Trail pass through the ensure that management in cooperation with Inyo National monument. recommendations are developed in Forest—is undertaking a conservation Originally administered by the U.S. consultation with interested planning and environmental impact Forest Service, the monument was stakeholders and the public and analysis process for creating a new transferred to the national park system adopted by NPS leadership after an General Management Plan (GMP) for in 1934. After the transfer, the adequate analysis of the benefits, Devils Postpile National Monument monument was managed as a satellite environmental impacts, and economic (monument), California. The GMP is unit first by Yosemite and then by costs of alternative courses of action; (9) intended to set forth the basic Sequoia and Kings Canyon National develop cost estimates for implementing management philosophy for this unit of Parks before becoming an independent each of the alternatives; and (10) the National Park System and provide unit of the national park system. identify and prioritize subsequent the strategies for addressing issues and Congress also included 747 acres of the detailed studies, plans and actions that achieving identified management monument in the Ansel Adams may be needed to implement the GMP, objectives for that unit. The GMP will Wilderness in 1984, consequently over including further wild and scenic river serve as a ‘‘blueprint’’ to guide 90% of the monument is designated as planning or Wilderness management management of natural and cultural Wilderness. planning that may be required. resources and visitor use during the The National Park Service oversees Scoping Process: The purpose of this next 15–20 years. the 798-acre Devils Postpile National scoping outreach effort is to elicit early In addition to identifying an Monument, while the U.S. Forest public feedback regarding potential ‘‘environmentally preferred’’ alternative, Service manages the lands surrounding issues and concerns, the nature and one or more development concept the monument. These two Federal extent of potential environmental plans, which guide more detailed, site- agencies work as partners to manage impacts (and as appropriate, mitigation specific preservation and development, public lands in this area. Access to measures), and alternative concepts may also be included with the GMP. Devils Postpile is primarily via a which should be addressed in The GMP will also include an eligibility mandatory bus system managed by the developing the monument’s first plan. assessment for wild and scenic river Forest Service. Hiking trails wind Through the outreach activities planned designation for the upper Middle Fork seamlessly in and out of the monument in the scoping phase, the NPS welcomes San Joaquin River, as required by NPS and onto the adjacent national forest. information and suggestions from the

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public regarding resource protection, proposed plan is the Regional Director, Chicago, IL 60604. During the public visitor use, and land management. All Pacific West Region, National Park comment period, the Consent Decree scoping comments must be postmarked Service. Subsequently, the official may also be examined on the following or transmitted by September 25, 2009. responsible for implementation of the Department of Justice Web site: http:// Comments may be provided online approved plan is the Superintendent, www.usdoj.gov/enrd/ through the NPS Planning, Environment Devils Postpile National Monument. Consent_Decrees.html. A copy of the and Public Comment Web site http:// Dated: May 13, 2009. Consent Decree may also be obtained by parkplanning.nps.gov/depo. If it is more mail from the Consent Decree Library, Jonathan B. Jarvis, convenient, or if you do not have access P.O. Box 7611, U.S. Department of to a computer, written comments may Regional Director, Pacific West. Justice, Washington, DC 20044–7611 or also be addressed to: General [FR Doc. E9–13883 Filed 6–12–09; 8:45 am] by faxing or e-mailing a request to Tonia Management Plan, Devils Postpile BILLING CODE P Fleetwood ([email protected]), National Monument, Attn: Deanna fax no. (202) 514–0097, phone Dulen, Superintendent, P.O. Box 3999, confirmation number (202) 514–1547. In Mammoth Lakes, California 93546. DEPARTMENT OF JUSTICE requesting a copy from the Consent Before including your address, phone Decree Library, please enclose a check number, e-mail address, or other Notice of Lodging of Consent Decree in the amount of $10.25 (25 cents per personal identifying information in your in United States v. Waste Management page reproduction cost) payable to the comment, you should be that your of Wisconsin, Inc., et al. Under the U.S. Treasury. entire comment—including your Comprehensive Environmental personal identifying information—may Response, Compensation and Liability Maureen Katz, be made publicly available at any time. Act (CERCLA) Assistant Section Chief, Environmental While you can ask us in your comment Enforcement Section, Environment and Notice is hereby given that on June 5, Natural Resources Division. to withhold your personal identifying 2009, a proposed Consent Decree was information from public review, we [FR Doc. E9–13953 Filed 6–12–09; 8:45 am] lodged with the United States District cannot guarantee that we will be able to BILLING CODE 4410–15–P Court for the Eastern District of do so. During the summer of 2009, the NPS, Wisconsin in United States v. Waste DEPARTMENT OF JUSTICE in cooperation with the Inyo National Management of Wisconsin, Inc., et al., Case No. 09–cv–0135. The Consent Forest, will host two rounds of public Drug Enforcement Administration open houses in Mammoth Lakes, Decree between the United States, on California. These open houses are behalf of the U.S. Environmental [OMB Number 1117–0014] planned for July 8 and July 9, 2009 and Protection Agency (‘‘U.S. EPA’’), and for September 9 and September 10, the settling defendants relates to certain Agency Information Collection 2009. Detailed information including liabilities under the Comprehensive Activities: Proposed Collection; times, specific locations and directions Environmental Response, Compensation Comments Requested: Application for for these meetings will be posted on the and Liability Act (‘‘CERCLA’’), 42 U.S.C. Registration (DEA Form 224); GMP project Web site at http:// 9601 et seq., in connection with the Application for Registration Renewal parkplanning.nps.gov/depo. All Watertown Tire Fire Site in Watertown, (DEA Form 224a); Affidavit for Chain attendees will be given the opportunity Wisconsin (the ‘‘Site’’). Renewal DEA Retail Pharmacy to ask questions and provide comments Under the proposed Consent Decree, Registration (DEA Form 224b); to the planning team. The GMP Web site the settling defendants will reimburse Application for Modification of will provide the most up-to-date the United States for $340,898 of the Registration for Online Pharmacies information regarding the project, approximately $1,131,828 in (DEA–224c) unreimbursed response costs incurred including project description, planning ACTION: by U.S. EPA in connection with the Site. 60-day notice of information updates, meeting notices, reports and collection under review. documents, and useful links associated The Department of Justice will receive with the planning process. comments relating to the Consent The Department of Justice (DOJ), Drug Decision Process: Following the Decree for a period of thirty (30) days Enforcement Administration (DEA), will scoping phase and consideration of from the date of this publication. be submitting the following information public concerns and other agency Comments should be addressed to the collection request to the Office of comments, a Draft EIS/GMP will be Assistant Attorney General, Management and Budget (OMB) for prepared and released for public review Environment and Natural Resources review and approval in accordance with (at this time anticipated to occur in Division, and either e-mailed to the Paperwork Reduction Act of 1995. summer 2011). Availability of the [email protected] or The proposed information collection is forthcoming Draft EIS/GMP will be mailed to P.O. Box 7611, U.S. published to obtain comments from the formally announced through the Department of Justice, Washington, DC public and affected agencies. Comments publication of a Notice of Availability in 20044–7611, and should refer to United are encouraged and will be accepted the Federal Register, as well as through States v. Waste Management of until August 14, 2009. This process is local and regional news media, direct Wisconsin, Inc., et al., DJ Ref. No. 90– conducted in accordance with 5 CFR mailing to the project mailing list, and 11–3–09429. 1320.10. via the Internet at http://www.nps.gov/ The Consent Decree may be examined If you have comments, especially on depo/parkmgmt/plan.htm. at the Office of the United States the estimated public burden or Following due consideration of all Attorney for the Eastern District of associated response time, suggestions, agency and public comment, a Final EIS Wisconsin, 517 E. Wisconsin Ave., Suite or need a copy of the proposed will be prepared (at this time the final 530, Milwaukee, WI 53202–4580 by information collection instrument with plan is expected to be available in request to Assistant U.S. Attorney instructions or additional information, 2012). As a delegated EIS, the official Matthew Richmond, and at the U.S. please contact Mark W. Caverly, Chief, responsible for the final decision on the EPA Region V, 77 West Jackson Blvd., Liaison and Policy Section, Office of

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Diversion Control, Drug Enforcement measures over legal handlers of The proposed information collection is Administration, 8701 Morrissette Drive, controlled substances and is used to published to obtain comments from the Springfield, VA 22152, Telephone (202) monitor their activities. public and affected agencies. Comments 307–7297. (5) An estimate of the total number of are encouraged and will be accepted Written comments and suggestions respondents and the amount of time until August 14, 2009. This process is from the public and affected agencies estimated for an average respondent to conducted in accordance with 5 CFR concerning the proposed collection of respond: It is estimated that 12,094 1320.10. information are encouraged. Your persons complete DEA Form 224 on If you have comments, especially on comments should address one or more paper, at 12 minutes per form, for an the estimated public burden or of the following four points: annual burden of 2,418.8 hours. It is associated response time, suggestions, • Evaluate whether the proposed estimated that 59,283 persons complete or need a copy of the proposed collection of information is necessary DEA Form 224 electronically, at 8 information collection instrument with for the proper performance of the minutes per form, for an annual burden instructions or additional information, functions of the agency, including of 7,904.4 hours. It is estimated that please contact Mark W. Caverly, Chief, whether the information will have 159,678 persons complete DEA Form Liaison and Policy Section, Office of practical utility; 224a on paper, at 12 minutes per form, Diversion Control, Drug Enforcement • Evaluate the accuracy of the for an annual burden of 31,935.6 hours. Administration, 8701 Morrissette Drive, agencies estimate of the burden of the It is estimated that 209,285 persons Springfield, VA 22152, Telephone (202) proposed collection of information, complete DEA Form 224a electronically, 307–7297. including the validity of the at 4 minutes per form, for an annual Written comments and suggestions methodology and assumptions used; burden of 13,952.3 hours. It is estimated from the public and affected agencies • Enhance the quality, utility, and that 16 persons complete DEA Form concerning the proposed collection of clarity of the information to be 224b, at 5 hours per form, for an annual information are encouraged. Your collected; and burden of 80 hours. It is estimated that comments should address one or more • Minimize the burden of the 250 persons complete DEA Form 224c of the following four points: collection of information on those who electronically, at 15 minutes per form, • Evaluate whether the proposed are to respond, including through the for an annual burden of 62.5 hours. collection of information is necessary use of appropriate automated, (6) An estimate of the total public for the proper performance of the electronic, mechanical, or other burden (in hours) associated with the functions of the agency, including technological collection techniques or collection: It is estimated that this whether the information will have other forms of information technology, collection will create a burden of 56,354 practical utility; e.g., permitting electronic submission of annual burden hours. • Evaluate the accuracy of the responses. If additional information is required agencies estimate of the burden of the Overview of Information Collection contact: Lynn Bryant, Department proposed collection of information, 1117–0014: Clearance Officer, United States including the validity of the (1) Type of Information Collection: Department of Justice, Justice methodology and assumptions used; Extension of a currently approved Management Division, Policy and • Enhance the quality, utility, and collection. Planning Staff, Patrick Henry Building, clarity of the information to be (2) Title of the Form/Collection: Suite 1600, 601 D Street, NW., collected; and Washington, DC 20530. • Minimize the burden of the Application for Registration (DEA Form collection of information on those who 224); Dated: June 10, 2009. Application for Registration Renewal Lynn Bryant, are to respond, including through the use of appropriate automated, (DEA Form 224a); Department Clearance Officer, PRA, United Affidavit for Chain Renewal (DEA Form States Department of Justice. electronic, mechanical, or other technological collection techniques or 224b); [FR Doc. E9–14033 Filed 6–12–09; 8:45 am] other forms of information technology, Application for Modification of BILLING CODE 4410–09–P Registration for Online Pharmacies e.g., permitting electronic submission of (DEA–224c). responses. Overview of Information Collection (3) Agency form number, if any, and DEPARTMENT OF JUSTICE 1117–0050: the applicable component of the (1) Type of Information Collection: Department of Justice sponsoring the Drug Enforcement Administration Extension of a currently approved collection: [OMB Number 1117–0050] collection. Form Number: DEA Form 224, 224a, (2) Title of the Form/Collection: Agency Information Collection 224b, and 224c; Office of Diversion Reports of dispensing of controlled Activities: Proposed Collection; Control, Drug Enforcement substances by online pharmacies (DEA Comments Requested: Reports of Administration, Department of Form 332). Justice. Dispensing of Controlled Substances (3) Agency form number, if any, and (4) Affected public who will be asked by Online Pharmacies (DEA Form 332) the applicable component of the or required to respond, as well as a brief ACTION: 60-day notice of information Department of Justice sponsoring the abstract: collection under review. collection: Primary: Business or other for-profit. Form Number: DEA Form 332; Office of Other: Not-for-Profit Institutions; State, The Department of Justice (DOJ), Drug Diversion Control, Drug Enforcement Local or Tribal Government. Enforcement Administration (DEA), will Administration, Department of Abstract: All firms and individuals who be submitting the following information Justice. distribute or dispense controlled collection request to the Office of (4) Affected public who will be asked substances must register with the DEA Management and Budget (OMB) for or required to respond, as well as a brief under the Controlled Substances Act. review and approval in accordance with abstract: Registration is needed for control the Paperwork Reduction Act of 1995. Primary: Business or other for-profit.

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Other: Not-for-Profit Institutions; State, The Department of Justice (DOJ), 3. Agency Form Number, if any, and Local or Tribal Government. Federal Bureau of Investigation (FBI), the applicable component of the Abstract: The Controlled Substances Act Training Division’s Office of department sponsoring the collection: (21 U.S.C. 827(d)(2)) requires online Technology, Research, and Curriculum Form Number: 1110–0021. pharmacies to report to DEA the total Development (OTRCD) will be Sponsor: Training Division of the quantity of controlled substances that submitting the following information Federal Bureau of Investigation (FBI), the pharmacy has dispensed during collection request to the Office of Department of Justice (DOJ). each calendar month by any means, Management and Budget (OMB) for 4. Affected Public who will be asked regardless of whether the controlled review and approval in accordance with or required to respond, as well as a brief substances are dispensed by means of the Paperwork Reduction Act of 1995. abstract: the Internet. Reports are required to The proposed information collection is Primary: FBI National Academy be filed by every pharmacy that, at published to obtain comments from the graduates and their identified any time during a calendar month, public and affected agencies. Comments supervisors that represents state and holds a modification of registration are encouraged and will be accepted for local police and sheriffs’ departments, authorizing it to operate as an online 60 days until August 14, 2009. This military police organizations, and pharmacy, regardless of whether the process is conducted in accordance with Federal law enforcement agencies from online pharmacy dispenses any 5 CFR 1320.10. the United States and over 150 foreign controlled substances by means of the If you have comments (especially on nations. Internet during the month. Such the estimated public burden or Brief Abstract: This collection is reporting is mandated by the Ryan associated response time), suggestions, requested by FBI National Academy. Haight Act and permits DEA to or need a copy of the proposed These surveys have been developed that monitor the dispensing of controlled information collection instrument with will measure the effectiveness of substances by online pharmacies. instructions or additional information, services that the FBI National Academy (5) An estimate of the total number of please contact Candace Matthews, provides and will utilize the graduates respondents and the amount of time Evaluation Program Manager, Federal and their supervisors’ comments to estimated for an average respondent to Bureau of Investigation, Training improve upon the current process. respond: It is estimated that 250 persons Division, Curriculum Development and 5. An estimate of the total number of complete DEA Form 332 electronically, Evaluation Unit, FBI Academy, respondents and the amount of time at 15 minutes per form, for an annual Quantico, Virginia 22135 or facsimile at estimated for an average respondent to burden of 750 hours. (703) 632–3111. respond: There are approximately 2,000 (6) An estimate of the total public Written comments and suggestions FBI National Academy graduates that burden (in hours) associated with the from the public and affected agencies will respond to the FBI National collection: It is estimated that this concerning the proposed collection of Academy Post-Course Questionnaire for collection will create a burden of 750 information are encouraged. Your Graduates. It is predicted that we will annual burden hours. If additional information is required comments should address one or more receive a 75% respond rate. The average contact: Lynn Bryant, Department of the following three points: response time for reading the directions Clearance Officer, United States (1) Evaluate whether the proposed for the FBI National Academy Post- Department of Justice, Justice collection of information is necessary Course Questionnaire or Graduates for Management Division, Policy and for the proper performance of the the FBI National Academy graduates is Planning Staff, Patrick Henry Building, functions of the agency/component, estimated to be 2 minutes; time to Suite 1600, 601 D Street, NW., including whether the information will complete the survey is estimated to be Washington, DC 20530. have practical utility; 30 minutes. There are approximately 2,000 FBI Dated: June 10, 2009. (2) Evaluate the accuracy of the agency’s/component’s estimate of the National Academy graduates who have Lynn Bryant, burden of the proposed collection of the identified their supervisors that will Department Clearance Officer, PRA, United information, including the validity of respond to the FBI National Academy States Department of Justice. the methodology and assumptions used; Post-Course Questionnaire for [FR Doc. E9–14034 Filed 6–12–09; 8:45 am] (3) Enhance the quality, utility, and Supervisors of Graduates. It is predicted BILLING CODE 4410–09–P clarity of the information to be that we will receive a 75% respond rate. collected; and minimize the burden of The average response time for reading the directions for the FBI National DEPARTMENT OF JUSTICE the collection of information on those who are to respond, including the use Academy Post-Course Questionnaire for Supervisors of Graduates for the Federal Bureau of Investigation of appropriate automated, electronic, mechanical, or other technological supervisors is estimated to be 2 minutes; [OMB Number 1110–0021] collection techniques or other forms of time to complete the survey is estimated to be 30 minutes. The total hour burden Training Division; FBI National information technology, e.g., permitting electronic submission of responses. for both surveys is 3,088 hours. Academy Level III Evaluation; 6. An estimate of the total public Proposed Collection, Comments Overview of This Information burden (in hours) associated with the Requested 1. Type of Information Collection: collection: The average hour burden for completing all the surveys combined is ACTION: 60-day notice of information Approval of a reinstated collection. 3,088 hours. collection under review: Approval of a 2. Title of the Forms: If additional information is required, reinstated collection; FBI National FBI National Academy Post-Course contact: Ms. Lynn Bryant, Department Academy Post-Course Questionnaire for Questionnaire for Graduates. Clearance Officer, United States Graduates. FBI National Academy Post- FBI National Academy Post-Course Department of Justice, Policy and Course Questionnaire for Supervisors of Questionnaire for Supervisors of Planning Staff, Justice Management Graduates. Graduates. Division, Suite 1600, Patrick Henry

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Building, 601 D Street, NW., Dated: June 4, 2009. of Standards and Technology, U.S. Washington, DC 20530. Robert S. Mueller, III, Department of Commerce. Dated: June 9, 2009. Director. Patricia A. Brink, Lynn Bryant, [FR Doc. E9–13848 Filed 6–12–09; 8:45 am] Deputy Director of Operations, Antitrust Department Clearance Officer, PRA, United BILLING CODE 4410–02–M Division. States Department of Justice. [FR Doc. E9–13928 Filed 6–12–09; 8:45 am] [FR Doc. E9–14035 Filed 6–12–09; 8:45 am] BILLING CODE 4410–11–M BILLING CODE 4410–02–P DEPARTMENT OF JUSTICE

Antitrust Division DEPARTMENT OF JUSTICE DEPARTMENT OF JUSTICE Notice Pursuant to the National Antitrust Division Federal Bureau of Investigation Cooperative Research and Production Act of 1993—Sensory System for Notice of Charter Reestablishment Notice Pursuant to the National Critical Infrastructure Defect Cooperative Research and Production In accordance with the provisions of Recognition, Visualization and Failure Act of 1993—Network Centric the Federal Advisory Committee Act, Prediction Operations Industry Consortium, Inc. Title 5, United States Code, Appendix, and Title 41, Code of Federal Notice is hereby given that, on April Notice is hereby given that, on May Regulations, Section 101–6.1015, with 14, 2009, pursuant to Section 6(a) of the 12, 2009, pursuant to section 6(a) of the the concurrence of the Attorney National Cooperative Research and National Cooperative Research and General, I have determined that the Production Act of 1993, 15 U.S.C. 4301 Production Act of 1993, 15 U.S.C. 4301 reestablishment of the Criminal Justice et seq. (‘‘the Act’’), Sensory System for et seq. (‘‘the Act’’), Network Centric Information Services (CJIS) Advisory Critical Infrastructure Defect Operations Industry Consortium, Inc. Policy Board (APB) is in the public Recognition, Visualization and Failure has filed written notifications interest. In connection with the Prediction (‘‘Sensory System’’) has filed simultaneously with the Attorney performance of duties imposed upon the written notifications simultaneously General and the Federal Trade FBI by law, I hereby give notice of the with the Attorney General and the Commission disclosing changes in its reestablishment of the APB Charter. Federal Trade Commission disclosing membership. The notifications were The APB provides me with general (1) the identities of the parties and (2) filed for the purpose of extending the policy recommendations with respect to the nature and objectives of the venture. Act’s provisions limiting the recovery of the philosophy, concept, and The notifications were filed for the antitrust plaintiffs to actual damages operational principles of the various purpose of invoking the Act’s provisions under specified circumstances. criminal justice information systems managed by the FBI’s CJIS Division. limiting the recovery of antitrust Specifically, LinQuest Corporation, Los The APB includes representatives plaintiffs to actual damages under Angeles, CA has been added as a party from local and state criminal justice specified circumstances. to this venture. Also, AMERICOM agencies; tribal law enforcement Pursuant to Section 6(b) of the Act, Government Services, McLean, VA; representatives; members of the judicial, the identities of the parties to the Aydin Yazlim ve Elektronik Sanayii prosecutorial, and correctional sectors venture are: ELXSI, Orlando, FL; A.S., Ankara, Turkey; Objectivity, Inc., of the criminal justice community, as Louisiana Tech University, Ruston, LA; Sunnyvale, CA; Sun Microsystems, Inc., Santa Clara, CA; Terma A/S, Lystrup, well as one individual representing a and Beyond Vision, LLC, Ruston, LA. Denmark; BEA Government Systems, national security agency; a The general area of Sensory System’s McLean, VA; LMI Government representative of Federal agencies planned activity is to develop a novel, Consulting, McLean, VA; and BARCO, participating in the CJIS Division deep-penetrating scanning system based Systems; and representatives of criminal Kuurne, Belgium have withdrawn as on ultrawideband radar for inspecting parties to this venture. justice professional associations (i.e., buried infrastructure such as pipelines, the American Probation and Parole tunnels, and culverts that can detect No other changes have been made in Association; American Society of Crime fractures, quantify corrosion and either the membership or planned Laboratory Directors, Inc.; International determine the presence of voids in the activity of the group research project. Association of Chiefs of Police; National surrounding soil to ‘‘see’’ beyond the Membership in this group research District Attorneys’ Association; National project remains open, and Network structure to prevent accidents. The Sheriffs’ Association; Major Cities Centric Operations Industry technology provides analysis which Chiefs’ Association; Major County Consortium, Inc. intends to file cannot be detected by current pipe Sheriffs’ Association; and a additional written notifications inspection. The sensory system would representative from a national disclosing all changes in membership. professional association representing be used by dull engineers to rehabilitate On November 19, 2004, Network the courts or court administrators and replace critical non-conductive Centric Operations Industry nominated by the Conference of Chief infrastructure such as concrete bridges, Consortium, Inc. filed its original Justices). The Attorney General has concrete dams, sea walls, highways, notification pursuant to section 6(a) of granted me the authority to appoint all runways and non-ferrous pipelines. The the Act. The Department of Justice members to the APB. activities of this joint venture project published a notice in the Federal The APB functions solely as an will be partially funded by award Register pursuant to section 6(b) of the advisory body in compliance with the #7ONANB9H9009 from the Technology Act on February 2, 2005 (70 FR 5486). provisions of the Federal Advisory Innovation Program, National Institute Committee Act. The Charter has been The last notification was filed with filed in accordance with the provisions the Department on February 18, 2009. A of the Act. notice was published in the Federal

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Register pursuant to section 6(b) of the Technology Innovation Program, DEPARTMENT OF LABOR Act on March 26, 2009 (74 FR 13228). National Institute of Standards and Employee Benefits Security Patricia A. Brink, Technology, U.S. Department of Commerce. Administration Deputy Director of Operations, Antitrust Division. Patricia A. Brink, Proposed Extension of Information [FR Doc. E9–13926 Filed 6–12–09; 8:45 am] Deputy Director of Operations, Antitrust Collection Request Submitted for BILLING CODE 4410–11–M Division. Public Comment; Request to the [FR Doc. E9–13925 Filed 6–12–09; 8:45 am] Department of Labor for Expedited Review of Denial of COBRA Premium BILLING CODE 4410–11–M DEPARTMENT OF JUSTICE Reduction Antitrust Division AGENCY: Employee Benefits Security DEPARTMENT OF JUSTICE Administration, Department of Labor. Notice Pursuant to the National ACTION: Notice. Cooperative Research and Production Antitrust Division Act of 1993—Joint Venture To Perform SUMMARY: The Department of Labor (the Project Entitled Next Generation Notice Pursuant to the National Department), in accordance with the SCADA for Prevention and Mitigation Cooperative Research and Production Paperwork Reduction Act of 1995 (PRA of Water System Infrastructure Act of 1993—ASTM International 95) (44 U.S.C. 3506(c)(2)(A)), provides Disaster the general public and Federal agencies Notice is hereby given that, on May with an opportunity to comment on Notice is hereby given that, on April 18, 2009, pursuant to Section 6(a) of the proposed and continuing collections of 22, 2009, pursuant to Section 6(a) of the National Cooperative Research and information. This helps the Department National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301 assess the impact of its information Production Act of 1993, 15 U.S.C. 4301 et seq. (‘‘the Act’’), ASTM International collection requirements and minimize et seq. (‘‘the Act’’), Joint Venture to (‘‘ASTM’’) has filed written notifications the reporting burden on the public and Perform Project Entitled Next helps the public understand the Generation SCAIJA for Prevention and simultaneously with the Attorney Department’s information collection Mitigation of Water System General and the Federal Trade requirements and provide the requested Infrastructure Disaster (‘‘Next Commission disclosing additions or data in the desired format. Currently, Generation SCADA’’) has filed written changes to its standards development the Employee Benefits Security notifications simultaneously with the activities. The notifications were filed Administration (EBSA) is soliciting Attorney General and the Federal Trade for the purpose of extending the Act’s comments on the Application to the Commission disclosing (1) the identities provisions limiting the recovery of Department of Labor for Expedited of the parties and (2) the nature and antitrust plaintiffs to actual damages Review of Denial of COBRA Premium objectives of the venture. The under specified circumstances. Reduction (the ‘‘Application’’) and the notifications were filed for the purpose Specifically, ASTM has provided an Plan Administrator Information Sheet of invoking the Act’s provisions limiting updated list of current, ongoing ASTM (the ‘‘Letter’’). A copy of the information the recovery of antitrust plaintiffs to standards activities originating between collection request (ICR) may be obtained actual damages under specified February 2009 and May 2009 designated by contacting the office listed in the circumstances. as Work Items. A complete listing of ADDRESSES section of this notice. Pursuant to Section 6(b) of the Act, ASTM Work Items, along with a brief DATES: Written comments must be the identities of the parties to the description of each, is available at submitted to the office shown in the venture are: Earth Mechanics, Inc., http://www.astm.org. Fountain Valley, CA; Irvine Ranch ADDRESSES section on or before August Water District, Irvine, CA; Orange On September 15, 2004, ASTM filed 14, 2009. County Sanitation District, Fountain its original notification pursuant to ADDRESSES: Please direct all written Valley, CA; Santa Ana Watershed Section 6(a) of the Act. The Department comments regarding the information Project Authority, Riverside, CA and of Justice published a notice in the collection request and burden estimates The Regents of the University of Federal Register pursuant to Section to G. Christopher Cosby, Office of Policy California, Irvine, CA. 6(b) of the Act on November 10, 2004 and Research, Employee Benefits The general area of Next Generation (69 FR 65226). Security Administration, U.S. SCADA’s planned activity is to develop The last notification was filed with Department of Labor, 200 Constitution a novel monitoring and inspection the Department on February 17, 2009. A Avenue, NW., Room N–5647, system for large water pipe networks notice was published in the Federal Washington, DC 20210. Telephone: with the ability not only to detect a Register pursuant to Section 6(b) of the (202) 693–8410; Fax: (202) 219–4745. These are not toll-free numbers. fracture or failure in a pipeline but also Act on March 13, 2009 (74 FR 10966). to evaluate in real time the remaining Comments may also be submitted useful life at the original design capacity Patricia A. Brink, electronically to the following Internet in the damaged system. This system will Deputy Director of Operations, Antitrust e-mail address: [email protected]. enable more effective and strategic Division. SUPPLEMENTARY INFORMATION: planning of repair operations and [FR Doc. E9–13921 Filed 6–12–09; 8:45 am] I. Background maintenance. The project success will BILLING CODE 4410–11–M aid in extending the useful life and The continuation coverage provisions reliability of the water system of section 601 through 608 of ERISA infrastructure. (and parallel provisions of the Internal The activities of this joint venture Revenue Code (Code)) generally require project will be partially funded by group health plans to offer qualified award 70NANB9H9013 from the beneficiaries’ the opportunity to elect

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continuation coverage following certain 1995 (Pub. L. 104–13, 44 U.S.C. Chapter Comments submitted in response to events that would otherwise result in 35) and 5 CFR 1320.13. The approval is this notice will be summarized and/or the loss of coverage. Continuation scheduled to expire on November 30, included in the ICR for OMB approval coverage is a temporary extension of the 2009. of the extension of the information qualified beneficiary’s previous group collection; they will also become a II. Current Actions health coverage. The right to elect matter of public record. This notice requests public comment continuation coverage allows Dated: June 8, 2009. individuals to maintain group health pertaining to the Department’s request Joseph S. Piacentini, coverage under adverse circumstances for extension of OMB’s approval of the and to bridge gaps in health coverage Application. After considering Director, Office of Policy and Research, Employee Benefits Security Administration. that otherwise could limit their access comments received in response to this to health care. notice, the Department intends to [FR Doc. E9–13995 Filed 6–12–09; 8:45 am] COBRA provides the Secretary of submit an ICR to OMB for continuing BILLING CODE 4510–29–P Labor (the Secretary) with authority approval. No change to the existing ICR under section 608 of ERISA to carry out is proposed or made at this time. The DEPARTMENT OF LABOR the continuation coverage provisions. Department notes that an agency may The Conference Report that not conduct or sponsor, and a person is Employment and Training accompanied COBRA divided not required to respond to, an Administration interpretive authority over the COBRA information collection unless it displays provisions between the Secretary and a valid OMB control number. A [TA–W–65,884] the Secretary of the Treasury (the summary of the ICR and the current Progressive Stamping Company, Royal Treasury) by providing that the burden estimates follows: Secretary has the authority to issue Agency: Employee Benefits Security Oak, MI; Notice of Termination of regulations implementing the notice and Administration, Department of Labor. Investigation disclosure requirements of COBRA, Title: Request to the Department of In accordance with Section 221 of the while the Treasury is authorized to Labor for Expedited Review of Denial of Trade Act of 1974, as amended, an issue regulations defining the required COBRA Premium Reduction investigation was initiated on May 5, continuation coverage. Type of Review: Extension of a 2009 in response to a petition filed by On February 17, 2009, President currently approved collection of a company official on behalf of workers Obama signed the American Recovery information. of Progressive Stamping Company, and Reinvestment Act (ARRA) of 2009 OMB Number: 1210–0135. Royal Oak, Michigan. (Pub. L. 111–5). Section 3001(a)(5) of Affected Public: Individuals or The petitioner has requested that the ARRA provides that if individuals households; Business or other for-profit; petition be withdrawn. Consequently, request treatment as an assistance Not-for-profit institutions. the investigation has been terminated. eligible individual and are denied such Respondents: 593,000. treatment because of their ineligibility Frequency of Responses: On occasion. Signed in Washington, DC, this 15th day of for COBRA continuation coverage, the Responses: 104,500. May 2009. Secretary of Labor must provide for Estimated Total Burden Hours: Richard Church, expedited review of the denial upon 99,750. Certifying Officer, Division of Trade application to the Secretary in the form Estimated Total Burden Cost Adjustment Assistance. and manner the Secretary provides. The (Operating and Maintenance): $52,000. [FR Doc. E9–13919 Filed 6–12–09; 8:45 am] Secretary of Labor is required to act in BILLING CODE 4510–FN–P III. Desired Focus of Comments consultation with the Secretary of the Treasury and must make a The Department of Labor is determination within 15 business days particularly interested in comments DEPARTMENT OF LABOR after receipt of an individual’s that: application for review. • Evaluate whether the proposed Employment and Training The Application is the form that will collection of information is necessary Administration be used by individuals to file their for the proper performance of the [TA–W–65,858] expedited review appeals with EBSA. functions of the agency, including All of the information requested on the whether the information will have Schnadig Corporation, Des Plaines, IL; Application must be completed, and an practical utility; Notice of Termination of Investigation Application may be denied if sufficient • Evaluate the accuracy of the In accordance with Section 221 of the information is not provided. In certain agency’s estimate of the burden of the Trade Act of 1974, as amended, an situations, EBSA will have to contact proposed collection of information, investigation was initiated on April 28, plan administrators for additional including the validity of the 2009 in response to a worker petition information regarding an applicant’s methodology and assumptions used; filed on behalf of workers of Schnadig appeal of a denial of premium • Enhance the quality, utility, and clarity of the information to be Corporation, Des Plaines, Illinois. reduction. The Letter will be used for The petitioner has requested that the collected; and this purposes in cases where the petition be withdrawn. Consequently, • Minimize the burden of the Department has otherwise been unable the investigation has been terminated. to contact a plan administrator. collection of information on those who On May 20, 2009, the Office of are to respond, including through the Signed in Washington, DC, this 7th day of Management and Budget (OMB) use of appropriate automated, May 2009. approved the Application and the Letter electronic, mechanical, or other Richard Church, (OMB Control Number 1210–0135) technological collection techniques or Certifying Officer, Division of Trade under the emergency procedures for other forms of information technology, Adjustment Assistance. review and clearance in accordance e.g., by permitting electronic [FR Doc. E9–13912 Filed 6–12–09; 8:45 am] with the Paperwork Reduction Act of submissions of responses. BILLING CODE 4510–FN–P

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DEPARTMENT OF LABOR investigation was initiated on April 15, Signed at Washington, DC, this 19th day of 2009 in response to a worker petition May 2009. Employment and Training filed by workers of Caye Upholstery, Elliott S. Kushner, Administration Amory, Mississippi. Certifying Officer, Division of Trade [TA–W–65,845] The petitioners have requested that Adjustment Assistance. the petition be withdrawn. [FR Doc. E9–13896 Filed 6–12–09; 8:45 am] Broyhill Furniture, Inc., Broyhill Consequently, the investigation has BILLING CODE 4510–FN–P Rutherford Distribution Center, been terminated. Rutherfordton, NC; Notice of Signed at Washington, DC, this 19th day of Termination of Investigation May 2009. DEPARTMENT OF LABOR In accordance with Section 221 of the Elliott S. Kushner, Employment and Training Trade Act of 1974, as amended, an Certifying Officer, Division of Trade Administration investigation was initiated on April 24, Adjustment Assistance. 2009 in response to a petition filed on [FR Doc. E9–13892 Filed 6–12–09; 8:45 am] behalf of workers of Broyhill Furniture, BILLING CODE 4510–FN–P [TA–W–65,856] Inc., Broyhill Rutherfordton Distribution Center, Rutherfordton, North Carolina. V & E Components, Inc., High Point, The petitioners have requested that DEPARTMENT OF LABOR NC; Notice of Termination of the petition be withdrawn. Investigation Consequently, the investigation has Employment and Training been terminated. Administration Pursuant to Section 221 of the Trade Act of 1974, as amended, an Signed in Washington, DC, this 20th day of [TA–W–65,632] investigation was initiated on April 28, May, 2009. 2009 in response to a petition filed by Richard Church, Duct Sox Corporation, a Subsidiary of a company official on behalf of workers Certifying Officer, Division of Trade Rite Hite, Dubuque, IA; Notice of of V & E Components, Inc., High Point, Adjustment Assistance. Termination of Investigation North Carolina. [FR Doc. E9–13910 Filed 6–12–09; 8:45 am] The petitioner has requested that the BILLING CODE 4510–FN–P Pursuant to Section 221 of the Trade petition be withdrawn. Consequently, Act of 1974, as amended, an the investigation has been terminated. investigation was initiated on March 18, DEPARTMENT OF LABOR 2009 in response to a worker petition Signed at Washington, DC, this 13th day of filed by workers of Duct Sox May 2009. Employment and Training Corporation, a subsidiary of Rite Hite, Linda G. Poole, Administration Dubuque, Iowa. Certifying Officer, Division of Trade [TA–W–65,788] The petitioners have requested that Adjustment Assistance. the petition be withdrawn. [FR Doc. E9–13911 Filed 6–12–09; 8:45 am] Schlumburger, Casper, WY; Notice of Consequently, the investigation has BILLING CODE 4510–FN–P Termination of Investigation been terminated. Pursuant to Section 221 of the Trade Signed at Washington, DC, this 19th day of Act of 1974, as amended, an May 2009. DEPARTMENT OF LABOR investigation was initiated on April 13, Elliott S. Kushner, 2009 in response to a worker petition Employment and Training Certifying Officer, Division of Trade Administration filed on behalf of the workers of Adjustment Assistance. Schlumburger, Casper, Wyoming. [FR Doc. E9–13894 Filed 6–12–09; 8:45 am] [TA–W–65,825] The petitioners requested that the BILLING CODE 4510–FN–P petition be withdrawn. Consequently, the investigation has been terminated. Castec, Inc., North Hollywood, CA; Notice of Termination of Investigation Signed at Washington, DC, this 15th day of DEPARTMENT OF LABOR May 2009. Pursuant to Section 221 of the Trade Richard Church, Employment and Training Administration Act of 1974, as amended, an Certifying Officer, Division of Trade investigation was initiated on April 21, Adjustment Assistance. [TA–W–65,662] 2009 in response to a worker petition [FR Doc. E9–13901 Filed 6–12–09; 8:45 am] filed by workers of Castec, Inc., North BILLING CODE 4510–FN–P Leed’s; Warren, OH; Notice of Hollywood, California. Termination of Investigation The petitioners have requested that DEPARTMENT OF LABOR the petition be withdrawn. Pursuant to Section 221 of the Trade Consequently, the investigation has Employment and Training Act of 1974, as amended, an been terminated. Administration investigation was initiated on March 23, 2009 in response to a worker petition Signed at Washington, DC, this 20th day of [TA–W–65,795] filed by workers of Leed’s, Warren, May 2009. Ohio. Elliott S. Kushner, Caye Upholstery, Amory, MS; Notice of Certifying Officer, Division of Trade Termination of Investigation The petitioners have requested that the petition be withdrawn. Adjustment Assistance. Pursuant to Section 221 of the Trade Consequently, the investigation has [FR Doc. E9–13907 Filed 6–12–09; 8:45 am] Act of 1974, as amended, an been terminated. BILLING CODE 4510–FN–P

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DEPARTMENT OF LABOR investigation was initiated on April 15, Signed in Washington, DC, this 18th day of 2009 in response to a worker petition May 2009. Employment and Training filed on behalf of workers of UGN, Inc., Richard Church, Administration Jackson, Tennessee. Certifying Officer, Division of Trade Adjustment Assistance. [TA–W–65,820] The petitioners have requested that the petition be withdrawn. [FR Doc. E9–13900 Filed 6–12–09; 8:45 am] Swanson Group/Swanson Aviation Consequently, the investigation has BILLING CODE 4510–FN–P LLC, Grants Pass, OR; Notice of been terminated. Termination of Investigation Signed at Washington, DC, this 15th day of May 2009. DEPARTMENT OF LABOR Pursuant to Section 221 of the Trade Richard Church, Act of 1974, as amended, an Employment and Training investigation was initiated on April 20, Certifying Officer, Division of Trade Administration Adjustment Assistance. 2009 in response to a petition filed on [TA–W–65,718] behalf of workers at Swanson Group/ [FR Doc. E9–13904 Filed 6–12–09; 8:45 am] Swanson Aviation LLC, Grants Pass, BILLING CODE 4510–FN–P Weyerhaeuser Company, iLevel Dallas Oregon. Sawmill, Dallas, OR; Notice of The petitioners have requested that DEPARTMENT OF LABOR Termination of Investigation the petition be withdrawn. Pursuant to Section 221 of the Trade Consequently, the investigation has Employment and Training been terminated. Act of 1974, as amended, an Administration investigation was initiated on March 31, Signed at Washington, DC, this 14th day of [TA–W–65,789] 2009 in response to a petition filed by May 2009. a company official on behalf of workers Richard Church, Bracalente Manufacturing Company, at Weyerhaeuser Company, iLevel Certifying Officer, Division of Trade Inc., Trumbaursvile, PA; Notice of Dallas Sawmill, Dallas, Oregon. The Adjustment Assistance. Termination of Investigation workers at the subject facility produced [FR Doc. E9–13906 Filed 6–12–09; 8:45 am] Pursuant to Section 221 of the Trade rough planed lumber. BILLING CODE 4510–FN–P The petitioner has requested that the Act of 1974, as amended, an petition be withdrawn. Consequently, investigation was initiated on April 14, the investigation has been terminated. DEPARTMENT OF LABOR 2009 in response to a petition filed on behalf of workers of Bracalente Signed in Washington, DC, this 18th day of Employment and Training Manufacturing Company, Inc., May 2009. Administration Trumbaursville, Pennsylvania. Richard Church, The petitioner has requested that the Certifying Officer, Division of Trade [TA–W–65,817] petition be withdrawn. Consequently, Adjustment Assistance. BAE Systems Controls, Inc., Irving, TX; the investigation has been terminated. [FR Doc. E9–13898 Filed 6–12–09; 8:45 am] Notice of Termination of Investigation Signed at Washington, DC, this 13th day of BILLING CODE 4510–FN–P May 2009. Pursuant to Section 221 of the Trade Linda G. Poole, Act of 1974, as amended, an DEPARTMENT OF LABOR Certifying Officer, Division of Trade investigation was initiated on April 20, Adjustment Assistance. 2009 in response to a petition filed by Employment and Training [FR Doc. E9–13902 Filed 6–12–09; 8:45 am] a company official on behalf of workers Administration BILLING CODE 4510–FN–P of BAE Systems Controls, Inc., Irving, [TA–W–65,690] Texas. The petitioner requested that the DEPARTMENT OF LABOR Tube Fabrication Industries, Inc., petition be withdrawn. Consequently, Logansport, IN; Notice of Termination the investigation has been terminated. Employment and Training of Investigation Signed at Washington, DC, this 15th day of Administration Pursuant to Section 221 of the Trade May 2009. [TA–W–65,776] Act of 1974, as amended, an Richard Church, investigation was initiated on March 27, Certifying Officer, Division of Trade Mercedes-Benz United States 2009 in response to a petition filed by Adjustment Assistance. International, Inc., Vance, AL; Notice of a company official on behalf of workers [FR Doc. E9–13905 Filed 6–12–09; 8:45 am] Termination of Investigation at Tube Fabrication Industries, Inc., BILLING CODE 4510–FN–P Pursuant to Section 221 of the Trade Logansport, Indiana. The workers at the Act of 1974, as amended, an subject facility produce steel tube investigation was initiated on April 8, components. DEPARTMENT OF LABOR The petitioner has requested that the 2009 in response to a petition filed on petition be withdrawn. Consequently, behalf of workers at Mercedes-Benz Employment and Training the investigation has been terminated. Administration United States International, Inc., Vance, Alabama. The workers at the subject Signed in Washington, DC, this 18th day of [TA–W–65,802] facility produce GL class, M class and May 2009. Richard Church, UGN, Inc., Jackson, TN; Notice of R class vehicles. Certifying Officer, Division of Trade Termination of Investigation The petitioners have requested that the petition be withdrawn. Adjustment Assistance. Pursuant to Section 221 of the Trade Consequently, the investigation has [FR Doc. E9–13897 Filed 6–12–09; 8:45 am] Act of 1974, as amended, an been terminated. BILLING CODE 4510–FN–P

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DEPARTMENT OF LABOR investigation was initiated on May 4, Signed at Washington, DC, this 11th day of 2009, in response to a petition filed on May 2009. Employment and Training behalf of workers of BCF Industries, Richard Church, Administration Altavista, Virginia. Certifying Officer, Division of Trade [TA–W–65,885] The petitioners have requested that Adjustment Assistance. the petition be withdrawn. [FR Doc. E9–13915 Filed 6–12–09; 8:45 am] Consequently, the investigation has Morgan AM & T, Coudersport, PA; BILLING CODE 4510–FN–P Notice of Termination of Investigation been terminated. Pursuant to Section 221 of the Trade Signed at Washington, DC, this 19th day of Act of 1974, as amended, an May, 2009. DEPARTMENT OF LABOR investigation was initiated on May 5, Elliott S. Kushner, 2009 in response to a petition filed by Certifying Officer, Division of Trade Employment and Training the International Union of Electronic Adjustment Assistance. Administration and Communication Workers of [FR Doc. E9–13917 Filed 6–12–09; 8:45 am] America, Local 88612 on behalf of BILLING CODE 4510–FN–P [TA–W–65,873] workers at Morgan AM & T, Coudersport, Pennsylvania. Tyco Electronics, Greensboro, NC; The petitioner has requested that the DEPARTMENT OF LABOR Notice of Termination of Investigation petition be withdrawn. Consequently, Employment and Training the investigation has been terminated. Pursuant to Section 221 of the Trade Administration Act of 1974, as amended, an Signed at Washington, DC, this 14th day of May 2009. investigation was initiated on May 1, [TA–W–65,877] Linda G. Poole, 2009 in response to a petition filed on behalf of workers of Tyco Electronics, Certifying Officer, Division of Trade Albion Associates, Inc., High Point, Greensboro, North Carolina. Adjustment Assistance. NC; Notice of Termination of [FR Doc. E9–13920 Filed 6–12–09; 8:45 am] Investigation The petitioner has requested that the BILLING CODE 4510–FN–P petition be withdrawn. Consequently, Pursuant to Section 221 of the Trade the investigation has been terminated. Act of 1974, as amended, an Signed at Washington, DC, this 13th day of DEPARTMENT OF LABOR investigation was initiated on May 4, 2009 in response to a petition filed on May 2009. Employment and Training behalf of the workers at Albion Linda G. Poole, Administration Associates, Inc., High Point, North Certifying Officer, Division of Trade Carolina. Adjustment Assistance. [TA–W–65,880] The petitioners have requested that [FR Doc. E9–13914 Filed 6–12–09; 8:45 am] Carpenter Company, Cookeville, TN; the petition be withdrawn. BILLING CODE 4510–FN–P Notice of Termination of Investigation Consequently, the investigation has been terminated. Pursuant to Section 221 of the Trade Signed at Washington, DC, this 14th day of DEPARTMENT OF LABOR Act of 1974, as amended, an May 2009. investigation was initiated on May 4, Richard Church, Employment and Training 2009, in response to a petition filed on Administration behalf of workers at the Carpenter Certifying Officer, Division of Trade Adjustment Assistance. Company, Cookeville, Tennessee. [TA–W–65,859] The petitioners have requested that [FR Doc. E9–13916 Filed 6–12–09; 8:45 am] BILLING CODE 4510–FN–P the petition be withdrawn. T. Rad North America, Inc., Consequently, the investigation has Hopkinsville, KY; Notice of been terminated. DEPARTMENT OF LABOR Termination of Investigation Signed at Washington, DC this 12th day of May 2009. Employment and Training Pursuant to Section 221 of the Trade Elliott S. Kushner, Administration Act of 1974, as amended, an Certifying Officer, Division of Trade investigation was initiated on April 28, Adjustment Assistance. [TA–W–65,876] 2009 in response to a petition filed on [FR Doc. E9–13918 Filed 6–12–09; 8:45 am] behalf of workers at T. Rad North BILLING CODE 4510–FN–P Magneti Marelli Powertrain USA, LLC, America, Inc., Hopkinsville, Kentucky. Sanford, NC; Notice of Termination of Investigation The petitioners have requested that DEPARTMENT OF LABOR the petition be withdrawn. Pursuant to Section 221 of the Trade Consequently, the investigation has Employment and Training Act of 1974, as amended, an been terminated. investigation was initiated on May 4, Administration Signed at Washington, DC, this 15th day of 2009 in response to a petition filed by May 2009. [TA–W–65,878] a company official on behalf of workers of Magneti Marelli Powertrain USA, Richard Church, BCF Industries, Altavista, VA; Notice of Certifying Officer, Division of Trade Termination of Investigation LLC, Sanford, North Carolina. The petitioner has requested that the Adjustment Assistance. Pursuant to Section 221 of the Trade petition be withdrawn. Consequently, [FR Doc. E9–13913 Filed 6–12–09; 8:45 am] Act of 1974, as amended, an the investigation has been terminated. BILLING CODE 4510–FN–P

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DEPARTMENT OF LABOR 2009 in response to a petition filed on Signed at Washington, DC, this 15th day of behalf of workers at Parker Hannifin May 2009. Employment and Training Corporation, Nichols Portland Division, Linda G. Poole, Administration Portland, Maine. The workers at the Certifying Officer, Division of Trade [TA–W–65,345] subject facility produce gerotors. Adjustment Assistance. The petitioners have requested that [FR Doc. E9–13908 Filed 6–12–09; 8:45 am] Quala-Die, Inc., St. Marys, PA; Notice the petition be withdrawn. BILLING CODE 4510–FN–P of Termination of Investigation Consequently, the investigation has been terminated. Pursuant to Section 221 of the Trade Act of 1974, as amended, an Signed in Washington, DC, this 18th day of DEPARTMENT OF LABOR investigation was initiated on February May 2009. 23, 2009, in response to a petition filed Richard Church, Employment and Training on behalf of workers at Quala-Die, Inc., Certifying Officer, Division of Trade Administration St. Marys, Pennsylvania. Adjustment Assistance. The petitioner has requested that the [FR Doc. E9–13899 Filed 6–12–09; 8:45 am] [TA–W–65,791] petition be withdrawn. Consequently, BILLING CODE 4510–FN–P the investigation has been terminated. Commercial Vehicle Group/Trim Systems, Dublin, VA; Notice of Signed at Washington, DC, this 15th day of May 2009. DEPARTMENT OF LABOR Termination of Investigation Elliott S. Kushner, Employment and Training Pursuant to Section 221 of the Trade Certifying Officer, Division of Trade Administration Adjustment Assistance. Act of 1974, as amended, an investigation was initiated on April 14, [FR Doc. E9–13893 Filed 6–12–09; 8:45 am] [TA–W–65,844] 2009 in response to a petition filed by BILLING CODE 4510–FN–P a company official on behalf of workers Murphy Veneer, White City, OR; Notice at Commercial Vehicle Group/Trim of Termination of Investigation DEPARTMENT OF LABOR Systems, Dublin, Virginia. The workers Pursuant to Section 221 of the Trade at the subject facility produce truck Employment and Training Act of 1974, as amended, an interiors. Administration investigation was initiated on April 24, The petitioner has requested that the [TA–W–65,886] 2009 in response to a petition on behalf petition be withdrawn. Consequently, of workers of Murphy Veneer, White the investigation has been terminated. BG Labs, a Subsidiary of Standex, City, Oregon. Binghamton, NY; Notice of Termination Signed in Washington, DC, this 20th day of The petitioners have requested that May 2009. of Investigation the petition be withdrawn. Richard Church, Pursuant to Section 221 of the Trade Consequently, the investigation has been terminated. Certifying Officer, Division of Trade Act of 1974, as amended, an Adjustment Assistance. investigation was initiated on May 5, Signed at Washington, DC, this 11th day of [FR Doc. E9–13903 Filed 6–12–09; 8:45 am] 2009 in response to a petition filed by May 2009. a company official on behalf of workers Linda G. Poole, BILLING CODE 4510–FN–P of BG Labs, a subsidiary of Standex, Certifying Officer, Division of Trade Binghamton, New York. Adjustment Assistance. DEPARTMENT OF LABOR The petitioner has requested that the [FR Doc. E9–13909 Filed 6–12–09; 8:45 am] petition be withdrawn. Consequently, BILLING CODE 4510–FN–P Employment and Training the investigation has been terminated. Administration Signed at Washington, DC, this 11th day of May 2009. DEPARTMENT OF LABOR [TA–W–65,658] Linda G. Poole, Employment and Training Certifying Officer, Division of Trade Administration Semitool Southwest Regional Office, Adjustment Assistance. Phoenix, AZ; Notice of Termination of [FR Doc. E9–13891 Filed 6–12–09; 8:45 am] Investigation BILLING CODE 4510–FN–P [TA–W–65,831] Cox Manufacturing Company Inc., Pursuant to Section 221 of the Trade Act of 1974, as amended, an DEPARTMENT OF LABOR Hildebran, NC; Notice of Termination of Investigation investigation was initiated on March 23, Employment and Training 2009 in response to a petition filed on Administration Pursuant to Section 221 of the Trade behalf of workers of Semitool Southwest Act of 1974, as amended, an Regional Office, Phoenix, Arizona. [TA–W–65,747] investigation was initiated on April 22, The petitioning group of workers is 2009 in response to a petition filed on covered by an active certification (TA– Parker Hannifin Corporation, Nichols behalf of the workers of Cox Portland Division, Portland, ME; Notice Manufacturing Company Inc., W–61,554C) which expires on July 16, of Termination of Investigation Hildebran, North Carolina. 2009. Consequently, further investigation in this case would serve Pursuant to Section 221 of the Trade The petitioner has requested that the no purpose, and the investigation has Act of 1974, as amended, an petition be withdrawn. Consequently, investigation was initiated on April 3, the investigation has been terminated. been terminated.

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Signed at Washington, DC, this 15th day of III. Data FOR FURTHER INFORMATION CONTACT: May 2009. Title: NASA Small Business Requests for additional information or Richard Church, Innovation Research Commercial copies of the information collection Certifying Officer, Division of Trade Metrics. instrument(s) and instructions should Adjustment Assistance. OMB Number: 2700—0095. be directed to Dr. Walter Kit, NASA [FR Doc. E9–13895 Filed 6–12–09; 8:45 am] Type of Review: Extension of a PRA Clearance Officer, NASA BILLING CODE 4510–FN–P currently approved collection. Headquarters, 300 E Street, SW., JF000, Affected Public: Business or other for- Washington, DC 20546, (202) 358–1350, profit. [email protected]. Estimated Number of Respondents: SUPPLEMENTARY INFORMATION: NATIONAL AERONAUTICS AND 1,000/once every 3 years. SPACE ADMINISTRATION I. Abstract Estimated Total Annual Burden Hours: 200. This collection provides a means by [(09–048)] Estimated Total Annual Cost: which NASA employees and contractors $11,000. can voluntarily and confidentially Notice of Information Collection report any safety concerns or hazards IV. Request for Comments pertaining to NASA programs, projects, AGENCY: National Aeronautics and or operations. Space Administration (NASA). Comments are invited on: (1) Whether the proposed collection of information ACTION: II. Method of Collection Notice of information collection. is necessary for the proper performance The current, paper-based reporting SUMMARY: The National Aeronautics and of the functions of NASA, including system ensures the protection of a Space Administration, as part of its whether the information collected has submitter’s anonymity and secure continuing effort to reduce paperwork practical utility; (2) the accuracy of submission of the report by way of the and respondent burden, invites the NASA’s estimate of the burden U.S. Postal Service. general public and other Federal (including hours and cost) of the agencies to take this opportunity to proposed collection of information; (3) III. Data comment on proposed and/or ways to enhance the quality, utility, and Title: NASA Safety Reporting System. continuing information collections, as clarity of the information to be OMB Number: 2700–0063. required by the Paperwork Reduction collected; and (4) ways to minimize the Act of 1995 (Pub. L. 104–13, 44 U.S.C. burden of the collection of information Type of review: Extension of currently 3506(c)(2)(A)). on respondents, including automated approved collection. collection techniques or the use of other Affected Public: Federal Government; DATES: All comments should be forms of information technology. Business or other for-profit. submitted within 30 calendar days from Number of Respondents: 75. the date of this publication. Walter Kit, Responses per Respondent: 1. ADDRESSES: All comments should be NASA Clearance Officer. Annual Responses: 75. addressed to Jasmeet Seehra, Desk [FR Doc. E9–13989 Filed 6–12–09; 8:45 am] Hours per Request: 15 min. Officer for NASA, Office of Information BILLING CODE 7510–13–P Annual Burden Hours: 19. and Regulatory Affairs, Room 10236, Frequency of Report: As needed. New Executive Office Building, Washington, DC 20503. NATIONAL AERONAUTICS AND IV. Request for Comments SPACE ADMINISTRATION FOR FURTHER INFORMATION CONTACT: Comments are invited on: (1) Whether Requests for additional information or [Notice: (09–047)] the proposed collection of information copies of the information collection is necessary for the proper performance instrument(s) and instructions should Notice of Information Collection of the functions of NASA, including be directed to Dr. Walter Kit, PRA whether the information collected has AGENCY: National Aeronautics and Clearance Officer, Office of the Chief practical utility; (2) the accuracy of Space Administration (NASA). Information Officer, NASA NASA’s estimate of the burden Headquarters, 300 E Street, SW., JF000, ACTION: Notice of information collection. (including hours and cost) of the Washington, DC 20546, (202) 358–1350, proposed collection of information; (3) [email protected]. SUMMARY: The National Aeronautics and Space Administration, as part of its ways to enhance the quality, utility, and SUPPLEMENTARY INFORMATION: continuing effort to reduce paperwork clarity of the information to be collected; and (4) ways to minimize the I. Abstract and respondent burden, invites the general public and other Federal burden of the collection of information This information collection is used to agencies to take this opportunity to on respondents, including automated assess the contribution of NASA Small comment on proposed and/or collection techniques or the use of other Business Innovation Research (SBIR) continuing information collections, as forms of information technology. technology to the National Economy in required by the Paperwork Reduction Comments submitted in response to accordance with the Government Act of 1995 (Pub. L. 104–13, 44 U.S.C. this notice will be summarized and Performance and Results Act (GPRA). 3506(c)(2)(A)). included in the request for OMB II. Method of Collection approval of this information collection. DATES: All comments should be They will also become a matter of The survey will be electronic and is submitted within 60 calendar days from public record. available on NASA’s SBIR Web site at the date of this publication. http://www.sbir.nasa.gov/SBIR/ ADDRESSES: All comments should be Walter Kit, survey.html. Electronic submission of addressed to Dr. Walter Kit, National NASA PRA Clearance Officer. the subject information is available to Aeronautics and Space Administration, [FR Doc. E9–13991 Filed 6–12–09; 8:45 am] 100% of all surveyed firms. Washington, DC 20546–0001. BILLING CODE 7510–13–P

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NATIONAL CREDIT UNION Washington, DC 20555–0001, or e-mail instrumentation and control, civil/ ADMINISTRATION [email protected]. structural engineering, or radiation SUPPLEMENTARY INFORMATION: The ACRS protection. Sunshine Act; Notice of Agency is a part-time advisory group, which is Candidates with pertinent graduate Meeting statutorily mandated by the Atomic level experience will be given Energy Act of 1954, as amended. ACRS TIME AND DATE: 10 a.m., Thursday, June additional consideration. Consistent provides independent expert advice on 18, 2009. with the requirements of the Federal matters related to the safety of existing Advisory Committee Act, the PLACE: Board Room, 7th Floor, Room and proposed nuclear power plants and Commission seeks candidates with 7047, 1775 Duke Street, Alexandria, VA on the adequacy of proposed reactor 22314–3428. diverse backgrounds, so that the safety standards. Of primary importance membership on the Committee is fairly STATUS: Open. are the safety issues associated with the balanced in terms of the points of view Matters To Be Considered operation of 104 commercial nuclear represented and functions to be power plants in the United States and 1. Interim Final Rule—Section performed by the Committee. regulatory initiatives, including risk- Candidates will undergo a thorough 701.21(f) of NCUA’s Rules and informed and performance-based Regulations, Exception to the Maturity security background check to obtain the regulations, license renewal, power security clearance that is mandatory for Limit on Second Mortgages. uprates, and the use of mixed oxide and 2. Final Rule —Section 701.26 of all ACRS members. The security high burnup fuels. An increased background check will involve the NCUA’s Rules and Regulations, emphasis is being given to safety issues completion and submission of Operating Fees. associated with new reactor designs and paperwork to NRC. Candidates for 3. Temporary Corporate Credit Union technologies, including passive system ACRS appointments may be involved in Stabilization Fund. reliability and thermal hydraulic or have financial interests related to 4. Insurance Fund Report. phenomena, use of digital NRC-regulated aspects of the nuclear RECESS: 11 a.m. instrumentation and control, industry. However, because conflict-of- international codes and standards used TIME AND DATE: 11:15 a.m., Thursday, interest considerations may restrict the in multinational design certifications, June 18, 2009. participation of a candidate in ACRS material and structural engineering, PLACE: Board Room, 7th Floor, Room activities, the degree and nature of any nuclear analysis and reactor core 7047, 1775 Duke Street, Alexandria, VA such restriction on an individual’s 22314–3428. performance, and nuclear materials and radiation protection. In addition, the activities as a member will be STATUS: Closed. ACRS may be requested to provide considered in the selection process. Each qualified candidate’s financial Matters To Be Considered advice on radiation protection, radioactive waste management and interests must be reconciled with 1. Insurance Appeal. Closed pursuant earth sciences in the agency’s licensing applicable Federal and NRC rules and to Exemption (6). reviews for fuel fabrication and regulations prior to final appointment. 2. Consideration of Supervisory enrichment facilities, waste disposal This might require divestiture of Activities (3). Closed pursuant to facilities, and facilities related to the securities or discontinuance of certain Exemptions (8) and (9)(A)(ii) and 9(B). Department of Energy’s nuclear energy contracts or grants. Information 3. Personnel. Closed pursuant to initiatives. regarding these restrictions will be Exemptions (2) and (6). The ACRS also has some involvement provided upon request. A re´sume´ FOR FURTHER INFORMATION CONTACT: in security matters related to the describing the educational and Mary Rupp, Secretary of the Board, integration of safety and security of professional background of the Telephone: 703–518–6304. commercial reactors. See the NRC Web candidate, including any special accomplishments, publications, and Mary Rupp, site at http://www.nrc.gov/aboutnrc/ regulatory/advisory/acrs.html for professional references should be Board Secretary. provided. Candidates should provide [FR Doc. E9–14129 Filed 6–11–09; 4:15 pm] additional information about ACRS. Criteria used to evaluate candidates their current address, telephone BILLING CODE 7535–01–P include education and experience, number, and e-mail address. All demonstrated skills in nuclear reactor candidates will receive careful safety matters, the ability to solve consideration. Appointment will be NUCLEAR REGULATORY complex technical problems, and the made without regard to factors such as COMMISSION ability to work collegially on a board, race, color, religion, national origin, sex, age, or disabilities. Candidates must be Seeks Qualified Candidates for the panel, or committee. The Commission, in selecting its Committee members, citizens of the United States and be able Advisory Committee on Reactor to devote approximately 100 days per Safeguards considers the need for a specific expertise to accomplish the work year to Committee business. Re´sume´s AGENCY: U.S. Nuclear Regulatory expected to be before the ACRS. ACRS will be accepted until September 30, Commission. Committee members are appointed for 2009. ACTION: Request for re´sume´s. four-year terms and normally serve no Dated at Rockville, MD, this 9th day of more than three terms. The Commission June 2009. SUMMARY: The U.S. Nuclear Regulatory looks to fill one vacancy as a result of For the U.S. Nuclear Regulatory Commission (NRC) seeks qualified this request. For this position, a Commission. candidates for the Advisory Committee candidate must have at least 10 years of on Reactor Safeguards (ACRS). Submit broad experience in the area of nuclear Andrew L. Bates, re´sume´s to Ms. Janet Riner, Executive engineering coupled with operational Advisory Committee Management Officer. Secretary, ACRS, Mail Stop T2E–26, exposure to issues relative to new [FR Doc. E9–13993 Filed 6–12–09; 8:45 am] U.S. Nuclear Regulatory Commission, reactor designs such as digital BILLING CODE 7590–01–P

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NUCLEAR REGULATORY gauges were not under the control and To comply with the procedural COMMISSION constant surveillance of the Licensee, as requirements associated with E-Filing, required by 10 CFR 30.34(i). at least five (5) days prior to the filing [Docket No. 03032029; License No. 52– deadline the requestor must contact the 25133–01; EA–08–332;NRC–2009–0240] III Office of the Secretary by e-mail at A written Notice of Violation and In the Matter of: S&M Testing [email protected], or by Proposed Imposition of Civil Penalties Laboratory, Gurabo, PR; Order calling (301) 415–1677, to request (1) a (Notice), stating the violations and the Imposing Civil Monetary Penalties digital ID certificate, which allows the amount of civil penalties proposed for participant (or its counsel or I the violations, was served upon the representative) to digitally sign Licensee by a letter dated March 23, S&M Testing Laboratory (S&M documents and access the E-Submittal 2009. Although a response to the Notice server for any NRC proceeding in which Testing) (Licensee), formerly Turabo was required within 30 days of the date Corporation is the holder of Materials it is participating; and/or (2) creation of of the letter transmitting the Notice (i.e., an electronic docket for the proceeding License No. 52–25133–01 issued on by April 22, 2009), as of the date of this March 25, 1991, by the Nuclear (even in instances when the requestor Order, the Licensee has failed to (or its counsel or representative) already Regulatory Commission (NRC or respond to the letter and the proposed holds an NRC-issued digital ID Commission). On September 17, 2001, civil penalties. Therefore, NRC staff has certificate). Each requestor will need to the Licensee name was changed to determined, that the proposed penalties download the Workplace Forms Turabo Testing, Inc. and during for the violations designated in the ViewerTM to access the Electronic December 2001, filed for bankruptcy Notice should be imposed, in the Information Exchange (EIE), a under Chapter 11. On September 22, amount of $16,250. component of the E-Filing system. The 2008, the Licensee’s name was changed Workplace Forms ViewerTM is free and to S&M Testing Laboratory and the IV is available at http://www.nrc.gov/site- license was revoked on September 22, In view of the foregoing and pursuant help/e-submittals/install-viewer.html. 2008, for non-payment of fees. The to Section 234 of the Atomic Energy Act Information about applying for a digital license authorizes the Licensee to use of 1954, as amended (Act), 42 U.S.C. ID certificate also is available on NRC’s byproduct material in accordance with 2282, and 10 CFR 2.205, it is hereby public Web site at http://www.nrc.gov/ the conditions specified therein. ordered that: site-help/e-submittals/apply- II The Licensee pay civil penalties in the certificates.html. amount of $16,250 within 30 days of the date Once a requestor has obtained a An inspection of the Licensee’s of this Order, in accordance with NUREG/ digital ID certificate, had a docket activities was conducted from May 1, BR–0254. In addition, at the time payment is created, and downloaded the EIE 2007, through September 23, 2008. In made, the Licensee shall submit a statement viewer, it can then submit a request for addition, the NRC Office of indicating when and by what method payment was made, to the Director, Office of a hearing through EIE. Submissions Investigations (OI) initiated an should be in Portable Document Format investigation on March 7, 2008, to: (1) Enforcement, U.S. Nuclear Regulatory Commission, One White Flint North, 11555 (PDF) in accordance with NRC guidance Locate the President of S&M Testing; (2) Rockville Pike, Rockville, MD 20852–2738. available on the NRC public Web site at determine the location of the licensed http://www.nrc.gov/site-help/e- V material that S&M Testing was submittals.html. A filing is considered authorized to possess; (3) determine if In accordance with 10 CFR 2.202, the complete at the time the filer submits its S&M Testing deliberately failed to Licensee must, and any other person document through EIE. To be timely, confine possession of licensed material adversely affected by this Order may, electronic filings must be submitted to to locations authorized on its NRC submit an answer to this Order within the EIE system no later than 11:59 p.m. license, as required by 10 CFR 30.34(c); 20 days of its issuance. In addition, the Eastern Time on the due date. Upon and, (4) determine if S&M Testing Licensee and any other person adversely receipt of a transmission, the E-Filing deliberately failed to provide an affected by this Order may request a system time-stamps the document and opportunity to inspect the material, hearing on this Order within 20 days of sends the submitter an e-mail notice activities, and facilities to verify its issuance. Where good cause is confirming receipt of the document. The security of the licensed material in S&M shown, consideration will be given to EIE system also distributes an e-mail Testing’s possession, as required by 10 extending the time to answer or request notice that provides access to the CFR 30.52(a). a hearing. A request for extension of document to the NRC Office of the Based on the results of the inspection time must be directed to the Director, General Counsel and any others who and the investigation, the NRC Office of Enforcement, U.S. Nuclear have advised the Office of the Secretary concluded that violations of NRC Regulatory Commission, and include a that they wish to participate in the requirements had occurred, involving: statement of good cause for the proceeding, so that the filer need not (1) The deliberate failure to confine extension. serve the document on those possession of byproduct material to A request for a hearing must be filed participants separately. Therefore, any locations authorized by NRC License in accordance with the NRC E-Filing others who wish to participate in the 52–25133–01; (2) the deliberate failure rule, which the NRC promulgated in proceeding (or their counsel or to provide the NRC an opportunity to August, 2007, 72 FR 49,139 (Aug. 28, representative) must apply for and inspect byproduct material and the 2007). The E-Filing process requires receive a digital ID certificate before a premises where the byproduct material participants to submit and serve hearing request is filed so that they may was stored, as required by 10 CFR documents over the internet or, in some obtain access to the document via the E- 30.52(a); and, (3) the failure to utilize a cases, to mail copies on electronic Filing system. minimum of two independent physical optical storage media. Participants may A person filing electronically may controls that form tangible barriers to not submit paper copies of their filings seek assistance through the ‘‘Contact secure portable gauges from unless they seek a waiver in accordance Us’’ link located on the NRC Web site unauthorized removal whenever the with the procedures described below. at http://www.nrc.gov/site-help/e-

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submittals.html or by calling the NRC hearing, the provisions specified in oversight of compliance by each technical help line, which is available Section IV above shall be final 20 days investment adviser, principal between 8 a.m. and 8 p.m., Eastern from the date of this Order without underwriter, administrator, and transfer Time, Monday through Friday, further order or proceedings. If an agent of the fund; (ii) obtain the fund excluding government holidays. The extension of time for requesting a board of director’s approval of those help line number is (866) 672–7640. hearing has been approved, the policies and procedures; (iii) annually Participants who believe that they provisions specified in Section IV shall review the adequacy of those policies have good cause for not submitting be final when the extension expires if a and procedures and the policies and documents electronically must file a hearing request has not been received. If procedures of each investment adviser, motion, in accordance with 10 CFR payment has not been made by that principal underwriter, administrator, 2.302(g), with their initial paper filing time, the matter may be referred to the and transfer agent of the fund, and the requesting authorization to continue to Attorney General, for collection. effectiveness of their implementation; submit documents in paper format. In the event the Licensee requests a (iv) designate a chief compliance officer Such filings must be submitted by (1) hearing as provided above, the issues to to administer the fund’s policies and first class mail addressed to the Office be considered at such hearing shall be: procedures and prepare an annual of the Secretary of the Commission, U.S. (a) Whether the Licensee was in report to the board that addresses Nuclear Regulatory Commission, violation of the Commission’s certain specified items relating to the Washington, DC 20555–0001, Attention: requirements as set forth in the Notice policies and procedures; and (v) Rulemaking and Adjudications Staff; or referenced in Section II above, and maintain for five years the compliance (2) courier, express mail, or expedited (b) Whether, on the basis of such policies and procedures and the chief delivery service to the Office of the violations, this Order should be compliance officer’s annual report to the Secretary, Sixteenth Floor, One White sustained. board. Flint North, 11555 Rockville Pike, Dated this 8th day of June 2009. The rule contains certain information Rockville, Maryland 20852, Attention: For the Nuclear Regulatory Commission. collection requirements that are Rulemaking and Adjudications Staff. Cynthia A. Carpenter, designed to ensure that funds establish Participants filing a document in this and maintain comprehensive, written manner are responsible for serving the Director, Office of Enforcement. [FR Doc. E9–13992 Filed 6–12–09; 8:45 am] internal compliance programs. The document on all other participants. information collections also assist the BILLING CODE 7590–01–P Filing is considered complete by first- Commission’s examination staff in class mail as of the time of deposit in assessing the adequacy of funds’ the mail, or by courier, express mail, or compliance programs. expedited delivery service upon SECURITIES AND EXCHANGE While Rule 38a–1 requires each fund depositing the document with the COMMISSION to maintain written policies and provider of the service. Documents submitted in adjudicatory Proposed Collection; Comment procedures, most funds are located proceedings will appear in NRC’s Request within a fund complex. The experience of the Commission’s examination and electronic hearing docket which is Upon Written Request, Copies Available available to the public at http:// oversight staff suggests that each fund in _ From: Securities and Exchange a complex is able to draw extensively ehd.nrc.gov/EHD Proceeding/home.asp, Commission, Office of Investor unless excluded pursuant to an order of from the fund complex’s ‘‘master’’ Education and Advocacy, compliance program to assemble the Commission, an Atomic Safety and Washington, DC 20549–0213. Licensing Board, or a Presiding Officer. appropriate compliance policies and Participants are requested not to include Extension: procedures. Many fund complexes personal privacy information, such as Rule 38a–1; SEC File No. 270–522; OMB already have written policies and social security numbers, home Control No. 3235–0586. procedures documenting their addresses, or home phone numbers in Notice is hereby given that, pursuant compliance programs. Further, a fund their filings. With respect to copyrighted to the Paperwork Reduction Act of 1995 needing to develop or revise policies works, except for limited excerpts that (44 U.S.C. 3501 et seq.), the Securities and procedures on one or more topics serve the purpose of the adjudicatory and Exchange Commission (the in order to achieve a comprehensive filings and would constitute a Fair Use ‘‘Commission’’) is soliciting comments compliance program can draw on a application, Participants are requested on the collection of information number or outlines and model programs not to include copyrighted materials in summarized below. The Commission available from a variety of industry their works. plans to submit this existing collection representatives, commentators, and If a person other than the Licensee of information to the Office of organizations. requests a hearing, that person shall set Management and Budget for extension There are approximately 4638 funds forth with particularity the manner in and approval. subject to Rule 38a–1. Among these which his interest is adversely affected Rule 38a–1 (17 CFR 270.38a–1) under funds, 105 were newly registered in the by this Order and shall address the the Investment Company Act of 1940 past year. These 105 funds, therefore, criteria set forth in 10 CFR 2.309(d). (15 U.S.C. 80a) (‘‘Investment Company were required to adopt and document If a hearing is requested by a Licensee Act’’) is intended to protect investors by the policies and procedures that make or a person whose interest is adversely fostering better fund compliance with up their compliance programs. affected, the Commission will issue an securities laws. The rule requires every Commission staff estimates that the Order designating the time and place of registered investment company and average annual hour burden for a fund any hearings. If a hearing is held, the business development company to adopt and document these policies issue to be considered at such hearing (‘‘fund’’) to: (i) Adopt and implement and procedures is 80 hours. Thus, we shall be whether this Order should be written policies and procedures estimate that the aggregate annual sustained. In the absence of any request reasonably designed to prevent burden hours associated with the for hearing, or written approval of an violations of the federal securities laws adoption and documentation extension of time in which to request a by the fund, including procedures for requirement is 8,400 hours.

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All funds are required to conduct an techniques or other forms of information DATES: Filing Date: The application was annual review of the adequacy of their technology. Consideration will be given filed on June 9, 2009. existing policies and procedures and the to comments and suggestions submitted HEARING OR NOTIFICATION OF HEARING: An policies and procedures of each in writing within 60 days of this order granting the application will be investment adviser, principal publication. issued unless the Commission orders a underwriter, administrator, and transfer Please direct your written comments hearing. Interested persons may request agent of the fund, and the effectiveness to Charles Boucher, Director/CIO, a hearing by writing to the of their implementation. In addition, Securities and Exchange Commission, Commission’s Secretary and serving each fund chief compliance officer is C/O Shirley Martinson, 6432 General Applicants with a copy of the request, required to prepare an annual report Green Way, Alexandria, VA 22312; or personally or by mail. Hearing requests that addresses the operation of the send an e-mail to: should be received by the Commission policies and procedures of the fund and [email protected]. by 5:30 p.m. on July 6, 2009, and should the policies and procedures of each Dated: June 9, 2009. be accompanied by proof of service on investment adviser, principal Florence E. Harmon, Applicants, in the form of an affidavit, underwriter, administrator, and transfer Deputy Secretary. or for lawyers, a certificate of service. agent of the fund, any material changes [FR Doc. E9–14007 Filed 6–12–09; 8:45 am] Hearing requests should state the nature made to those policies and procedures of the writer’s interest, the reason for the BILLING CODE 8010–01–P since the date of the last report, any request, and the issues contested. material changes to the policies and Persons who wish to be notified of a procedures recommended as a result of SECURITIES AND EXCHANGE hearing may request notification by the annual review, and certain COMMISSION writing to the Commission’s Secretary. compliance matters that occurred since ADDRESSES: Secretary, U.S. Securities the date of the last report. The staff [Release No. IC–28763; File No. 812–13664] and Exchange Commission, 100 F estimates that each fund spends 42 Deutsche Bank Securities Inc., et al.; Street, NE., Washington, DC 20549– hours per year, on average, conducting 1090; Applicants: DBSI, 60 Wall Street, the annual review and preparing the Notice of Application and Temporary Order New York, NY 10005; DIMA, 345 Park annual report to the board of directors. Avenue, New York, NY 10154; DeAM Thus, we estimate that the aggregate June 9, 2009. (HK), 48/F Cheung Kong Centre, 2 annual burden hours associated with AGENCY: Securities and Exchange Queen’s Road Central, Hong Kong, the annual review and annual report Commission (‘‘Commission’’). China; DeAMI, Mainzer Landstrasse requirement is 194,796 hours. ACTION: Temporary order and notice of 178–190, Frankfurt am Main, 60327; Finally, the staff estimates that each application for a permanent order under DeAMJ, Sanno Park Tower, 2–11–1, fund spends 11 hours annually, on section 9(c) of the Investment Company Nagata-Cho, Chiyoda-Ku, Tokyo, 100– average, maintaining the records Act of 1940 (‘‘Act’’). 6173; DIAL, Deutsche Bank Place, Level required by proposed Rule 38a–1. Thus, 16, CNR Hunter and Phillip Streets, the aggregate annual burden hours SUMMARY OF APPLICATION: Applicants Sydney, NSW 2000; RREEF, 875 N. associated with the recordkeeping have received a temporary order Michigan Avenue, 41st Floor, Chicago, requirement is 51,018 hours. exempting them from section 9(a) of the IL 60611; RREEF (G), Winchester House, In total, the staff estimates that the Act, with respect to an injunction 1 Great Winchester Street, London, aggregate annual information collection entered against Deutsche Bank United Kingdom EC2N 2DB; and DIDI, burden of Rule 38a–1 is 254,214 hours. Securities Inc. (‘‘DBSI’’) on June 9, 2009 222 South Riverside Plaza, Chicago, IL The estimate of burden hours is made by the United States District Court for 60606. solely for the purposes of the Paperwork the Southern District of New York Reduction Act. The estimate is not FOR FURTHER INFORMATION CONTACT: (‘‘Injunction’’), until the Commission derived from a comprehensive or even Steven I. Amchan, Senior Counsel, at takes final action on an application for a representative survey or study of the (202) 551–6826, or Julia Kim Gilmer, a permanent order. Applicants also have costs of Commission rules. Complying Branch Chief, at (202) 551–6821, applied for a permanent order. with this collection of information (Division of Investment Management, requirement is mandatory. Responses APPLICANTS: DBSI, Deutsche Investment Office of Investment Company will not be kept confidential. An agency Management Americas, Inc. (‘‘DIMA’’), Regulation). may not conduct or sponsor, and a Deutsche Asset Management (Hong SUPPLEMENTARY INFORMATION: The person is not required to respond to, a Kong) Limited (‘‘DeAM (HK)’’), following is a temporary order and a collection of information unless it Deutsche Asset Management summary of the application. The displays a currently valid control International GmbH (‘‘DeAMI’’), complete application may be obtained number. Deutsche Asset Management (Japan) via the Commission’s Web site by Written comments are invited on: (a) Limited (‘‘DeAMJ’’), Deutsche searching for the file number, or an Whether the proposed collection of Investments Australia Limited applicant using the Company name box, information is necessary for the proper (‘‘DIAL’’), RREEF America LLC at http://www.sec.gov/search/ performance of the functions of the (‘‘RREEF’’), RREEF Global Advisors search.htm or by calling (202) 551– agency, including whether the Limited (‘‘RREEF (G)’’), and DWS 8090. information will have practical utility; Investments Distributors, Inc. (‘‘DIDI’’) (b) the accuracy of the agency’s estimate (collectively, other than DBSI, the Applicants’ Representations of the burden of the collection of ‘‘Fund Servicing Applicants’’ and 1. Deutsche Bank AG (‘‘DB’’) is a stock information; (c) ways to enhance the together with DBSI, the ‘‘Applicants’’).1 corporation organized under the laws of quality, utility, and clarity of the the Federal Republic of Germany. DBSI information collected; and (d) ways to 1 Applicants request that any relief granted is an indirect wholly-owned subsidiary pursuant to the application also apply to any other minimize the burden of the collection of company of which DBSI is or may become an of DB, and an affiliated person of each information on respondents, including affiliated person (together with the Applicants, the Fund Servicing Applicant within the through the use of automated collection ‘‘Covered Persons’’). meaning of section 2(a)(3) of the Act (by

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virtue of being under common control open-end investment company, 5. Applicants state that their inability with the Fund Servicing Applicants). registered unit investment trust or to continue to provide investment DBSI provides securities brokerage and registered face-amount certificate advisory, subadvisory and underwriting investment advisory services to private company. Section 9(a)(3) of the Act services to Funds would result in clients and institutions and makes the prohibition in section 9(a)(2) potential hardship for the Funds and correspondent clearing services to applicable to a company, any affiliated their shareholders. Applicants state that broker-dealers. DBSI also provides a person of which has been disqualified they will, as soon as reasonably variety of capital raising, market under the provisions of section 9(a)(2). practicable, distribute written materials, making, and brokerage services for its Section 2(a)(3) of the Act defines including an offer to meet in person to government, financial institution, and ‘‘affiliated person’’ to include, among discuss the materials, to the boards of corporate clients, including fixed others, any person directly or indirectly directors (‘‘Boards’’) of the Funds for income and equity sales and trading, controlling, controlled by, or under which the Applicants serve as emerging markets activities, and equity common control with, the other person. investment adviser, investment market research and investment Applicants state that DBSI is an subadviser or principal underwriter, banking. affiliated person of each of the other including the directors who are not 2. DIMA, DeAM (HK), DeAMI, Applicants within the meaning of ‘‘interested persons,’’ as defined in DeAMJ, DIAL, RREEF, and RREEF (G) section 2(a)(3) of the Act. Applicants section 2(a)(19) of the Act, of such are registered as investment advisers state that the entry of the Injunction Funds, and their independent legal under the Investment Advisers Act of results in Applicants being subject to counsel as defined in rule 0–1(a)(6) 1940, as amended (‘‘Advisers Act’’) and the disqualification provisions of under the Act, relating to the provide investment advisory or section 9(a) of the Act. circumstances that led to the Injunction, subadvisory services to registered 2. Section 9(c) of the Act provides that any impact on the Funds, and the investment companies (‘‘Funds’’). DIDI the Commission shall grant an application. Applicants state they will is a broker-dealer registered under the application for exemption from the provide the Boards of the Funds with all Securities Exchange Act of 1934 disqualification provisions of section information concerning the Injunction (‘‘Exchange Act’’) and serves as 9(a) if it is established that these and the application that is necessary for principal underwriter to Funds. provisions, as applied to the Applicants, the Funds to fulfill their disclosure and 3. On June 9, 2009, the United States are unduly or disproportionately severe other obligations under the Federal District Court for the Southern District or that the Applicants’ conduct has been securities laws. of New York entered a judgment against such as not to make it against the public 6. Applicants also state that, if the DBSI (‘‘Judgment’’) in a matter brought interest or the protection of investors to Fund Servicing Applicants were barred grant the exemption. Applicants have by the Commission.2 The Commission from providing services to the Funds, filed an application pursuant to section alleged in the complaint (‘‘Complaint’’) the effect on their businesses and 9(c) seeking a temporary and permanent that DBSI violated section 15(c) of the employees would be severe. Applicants order exempting them and Covered Exchange Act by marketing auction rate state that they have committed Persons from the disqualification securities as highly liquid investments substantial resources to establish an comparable to cash or money market provisions of section 9(a) of the Act. 3. Applicants believe they meet the expertise in providing advisory and instruments and by selling auction rate standard for exemption specified in principal underwriting services to securities to its customers without section 9(c). Applicants state that the Funds. Applicants further state that adequately disclosing the risks involved prohibitions of section 9(a) as applied to prohibiting the Fund Servicing in purchasing such securities. Without them would be unduly and Applicants from providing such services admitting or denying the allegations in disproportionately severe and that the would not only adversely affect their the Complaint, except as to jurisdiction, conduct of the Applicants has been such businesses, but would also adversely DBSI consented to the entry of the as not to make it against the public affect over 500 employees who are Judgment that included, among other interest or the protection of investors to involved in those activities. things, the entry of the Injunction and grant the exemption from section 9(a). 7. Applicants previously have other equitable relief including 4. Applicants state that the alleged received exemptions under section 9(c) undertakings to take various remedial conduct giving rise to the Injunction did as the result of conduct that triggered actions for the benefit of purchasers of not involve any of the Applicants acting section 9(a) as described in greater certain auction rate securities. in the capacity of investment adviser, detail in the application. Applicants’ Legal Analysis subadviser or depositor to any Fund or Applicants’ Condition in the capacity of principal underwriter 1. Section 9(a)(2) of the Act, in for any open-end Fund, UIT, or Applicants agree that any order relevant part, prohibits a person who registered face-amount certificate granting the requested relief will be has been enjoined from, among other company. Applicants also state that subject to the following condition: things, engaging in or continuing any none of the current or former directors, Any temporary exemption granted conduct or practice in connection with officers, or employees of the Fund pursuant to the application shall be the purchase or sale of a security, or in Servicing Applicants had any without prejudice to, and shall not limit connection with activities as an responsibility for, or had any the Commission’s rights in any manner underwriter, broker or dealer, from involvement in, the conduct alleged in with respect to, any Commission acting, among other things, as an the Complaint. Applicants further state investigation of, or administrative investment adviser or depositor of any that the personnel at DBSI who were proceedings involving or against, registered investment company or a involved in the violations alleged in the Covered Persons, including, without principal underwriter for any registered Complaint have had no and will not limitation, the consideration by the have any future involvement in Commission of a permanent exemption 2 Securities and Exchange Commission v. Deutsche Bank Securities Inc., Judgment on providing investment advisory, from section 9(a) of the Act requested Consent Against Defendant Deutsche Bank subadvisory, depository or underwriting pursuant to the application or the Securities Inc., 09 Civ. 5174 (S.D.N.Y. June 9, 2009). services to Funds. revocation or removal of any temporary

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exemptions granted under the Act in FILING DATE: The application was filed 2. Voyaguer and Sky are registered as connection with the application. on June 3, 2009. Applicants have agreed investment advisers under the Advisers to file an amendment during the notice Act and provide investment advisory or Temporary Order period, the substance of which is subadvisory services to registered The Commission has considered the reflected in this notice. investment companies (‘‘Funds’’). matter and finds that Applicants have HEARING OR NOTIFICATION OF HEARING: An Voyageur is an indirect, wholly owned made the necessary showing to justify order granting the application will be subsidiary of Royal Bank. Royal Bank granting a temporary exemption. issued unless the Commission orders a indirectly owns a controlling interest in Accordingly, hearing. Interested persons may request Sky. Tamarack is a broker-dealer It is hereby ordered, pursuant to a hearing by writing to the registered under the Exchange Act and section 9(c) of the Act, that Applicants Commission’s Secretary and serving serves as principal underwriter to open- and any other Covered Persons are Applicants with a copy of the request, end Funds. None of the Applicants granted a temporary exemption from the personally or by mail. Hearing requests serve as depositor to any Fund. provisions of section 9(a), solely with should be received by the Commission 3. On June 9, 2009, the United States respect to the Injunction, subject to the by 5:30 p.m. on July 6, 2009, and should District Court for the Southern District condition in the application, from June be accompanied by proof of service on of New York entered a judgment against 9, 2009, until the Commission takes Applicants, in the form of an affidavit, RBC (‘‘Judgment’’) in a matter brought final action on their application for a or for lawyers, a certificate of service. by the Commission.2 The Commission permanent order. Hearing requests should state the nature alleged in the complaint (‘‘Complaint’’) By the Commission. of the writer’s interest, the reason for the that RBC violated section 15(c) of the Florence E. Harmon, request, and the issues contested. Exchange Act by misrepresenting to Deputy Secretary. Persons who wish to be notified of a many of its customers that auction rate hearing may request notification by securities were safe, highly liquid [FR Doc. E9–13981 Filed 6–12–09; 8:45 am] writing to the Commission’s Secretary. investments that were substitutes for BILLING CODE 8010–01–P ADDRESSES: Secretary, U.S. Securities cash or money market funds. The and Exchange Commission, 100 F Complaint further alleges that on SECURITIES AND EXCHANGE Street, NE., Washington, DC 20549– February 11, 2008, RBC determined not COMMISSION 1090; Applicants: RBC, One Liberty to place bids in most of its auctions, as Plaza, 165 Broadway, New York, NY it had historically done, resulting in [Release No. IC–28762; File No. 812–13663] 10006; Voyageur and Tamarack, 100 failed auctions. Without admitting or South Fifth Street, Suite 2300, denying the allegations in the RBC Capital Markets Corporation, et Minneapolis, MN 55402; and Sky, 1 Complaint, except as to jurisdiction, al.; Notice of Application and Adelaide Street East, Suite 2310, RBC consented to the entry of the Temporary Order Toronto, ON, Canada M5C 2V9. Injunction and other equitable relief including undertakings to take various June 9, 2009. FOR FURTHER INFORMATION CONTACT: Jaea remedial actions for the benefit of AGENCY: F. Hahn, Senior Counsel, at (202) 551– Securities and Exchange purchasers of certain auction rate Commission (‘‘Commission’’). 6870, or Julia Kim Gilmer, Branch Chief, at (202) 551–6821, (Division of securities. ACTION: Temporary order and notice of Investment Management, Office of application for a permanent order under Applicants’ Legal Analysis Investment Company Regulation). section 9(c) of the Investment Company 1. Section 9(a)(2) of the Act, in SUPPLEMENTARY INFORMATION: The Act of 1940 (‘‘Act’’). relevant part, prohibits a person who following is a temporary order and a has been enjoined from, among other summary of the application. The SUMMARY OF APPLICATION: Applicants things, engaging in or continuing any complete application may be obtained have received a temporary order conduct or practice in connection with via the Commission’s Web site by exempting them from section 9(a) of the the purchase or sale of a security, or in searching for the file number, or an Act, with respect to an injunction connection with activities as an applicant using the Company name box, entered against RBC Capital Markets underwriter, broker or dealer, from at http://www.sec.gov/search/ Corporation (‘‘RBC’’) on June 9, 2009 by acting, among other things, as an search.htm or by calling (202) 551– the United States District Court for the investment adviser or depositor of any 8090. Southern District of New York registered investment company or a (‘‘Injunction’’), until the Commission Applicants’ Representations principal underwriter for any registered takes final action on an application for 1. RBC is a full service investment open-end investment company, a permanent order. Applicants also have banking firm engaged in securities registered unit investment trust or applied for a permanent order. underwriting, sales and trading, registered face-amount certificate APPLICANTS: RBC, Voyageur Asset investment banking, financial advisory company. Section 9(a)(3) of the Act Management Inc. (‘‘Voyageur’’), services and investment research makes the prohibition in section 9(a)(2) Tamarack Distributors Inc. services. RBC is registered with the applicable to a company, any affiliated (‘‘Tamarack’’), and Sky Investment Commission as a broker-dealer under person of which has been disqualified Counsel Inc. (‘‘Sky’’) (collectively, other the Securities Exchange Act of 1934, as under the provisions of section 9(a)(2). than RBC, the ‘‘Fund Servicing amended (‘‘Exchange Act’’) and as an Section 2(a)(3) of the Act defines Applicants’’ and together with RBC, the investment adviser under the ‘‘affiliated person’’ to include, among 1 ‘‘Applicants’’). Investment Advisers Act of 1940, as others, any person directly or indirectly amended (‘‘Advisers Act’’). RBC is an controlling, controlled by, or under 1 Applicants request that any relief granted indirect, wholly owned subsidiary of pursuant to the application also apply to any other 2 Securities and Exchange Commission v. RBC company of which RBC is or may become an Royal Bank of Canada (‘‘Royal Bank’’), Capital Markets Corporation, Judgment as to affiliated person (together with the Applicants, the a Canada-based global financial services Defendant RBC Capital Markets Corporation, 09– ‘‘Covered Persons’’). firm. cv–5172 (S.D.N.Y., June 9, 2009).

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common control with, the other person. who are not ‘‘interested persons,’’ as final action on their application for a Applicants state that RBC is an affiliated defined in section 2(a)(19) of the Act, of permanent order. person of each of the other Applicants such Funds, and their independent legal By the Commission. within the meaning of section 2(a)(3) of counsel as defined in rule 0–1(a)(6) Florence E. Harmon, the Act. Applicants state that the entry under the Act, relating to the Deputy Secretary. of the Injunction results in Applicants circumstances that led to the Injunction, being subject to the disqualification any impact on the Funds, and the [FR Doc. E9–13980 Filed 6–12–09; 8:45 am] provisions of section 9(a) of the Act. application. Applicants state they will BILLING CODE 8010–01–P 2. Section 9(c) of the Act provides that provide the Boards with all information the Commission shall grant an concerning the Injunction and the application for exemption from the SECURITIES AND EXCHANGE application that is necessary for the COMMISSION disqualification provisions of section Funds to fulfill their disclosure and 9(a) if it is established that these other obligations under the federal [Release No. IC–28764; File No. 812–13662] provisions, as applied to the Applicants, securities laws. are unduly or disproportionately severe 6. Applicants also state that, if they Banc of America Securities LLC, et al.; or that the Applicants’ conduct has been were barred from providing services to Notice of Application and Temporary such as not to make it against the public Funds, the effect on their businesses Order interest or the protection of investors to and employees would be severe. grant the exemption. Applicants have June 9, 2009. Applicants state that they have AGENCY: filed an application pursuant to section Securities and Exchange committed substantial resources to Commission. 9(c) seeking a temporary and permanent establish an expertise in providing order exempting them and Covered ACTION: Temporary order and notice of advisory and distribution services to application for a permanent order under Persons from the disqualification Funds. Applicants further state that provisions of section 9(a) of the Act. section 9(c) of the Investment Company prohibiting them from providing such Act of 1940 (‘‘Act’’). 3. Applicants believe they meet the services would not only adversely affect standards for exemption specified in their businesses, but would also SUMMARY: Summary of Application: section 9(c). Applicants state that the adversely affect approximately 35 Applicants have received a temporary prohibitions of section 9(a) as applied to employees who are involved in those order exempting them from section 9(a) them would be unduly and activities. of the Act, with respect to an injunction disproportionately severe and that the entered against Banc of America conduct of the Applicants has been such 7. Applicants have not previously Securities LLC (‘‘BAS’’) and Banc of as not to make it against the public received an exemption under section America Investment Services, Inc. interest or the protection of investors to 9(c) as the result of conduct that (‘‘BAI’’) on June 9, 2009 by the United grant the exemption from section 9(a). triggered section 9(a). States District Court for the Southern 4. Applicants state that the alleged Applicants’ Condition conduct giving rise to the Injunction did District of New York (‘‘Injunction’’) not involve any of the Applicants acting Applicants agree that any order until the Commission takes final action in the capacity of investment adviser or granting the requested relief will be on an application for a permanent order. subadviser to any Fund or in the subject to the following condition: Applicants also have applied for a capacity of principal underwriter for Any temporary exemption granted permanent order. any open-end Fund. Applicants also pursuant to the application shall be APPLICANTS: BAS, BAI, Columbia state that none of the current or former without prejudice to, and shall not limit Management Advisors, LLC (‘‘CMA’’), directors, officers, or employees of the the Commission’s rights in any manner Columbia Wanger Asset Management, Fund Servicing Applicants had any with respect to, any Commission LP (‘‘CWAM’’), Columbia Management knowledge of, or had any involvement investigation of, or administrative Distributors, Inc. (‘‘CMDI’’), Banc of in, the conduct alleged in the proceedings involving or against, America Investment Advisors, Inc. Complaint. Applicants further state that Covered Persons, including, without (‘‘BAIA’’), Bank of America Capital the personnel at RBC who were limitation, the consideration by the Advisors LLC (‘‘BACA’’), U.S. Trust involved in the violations alleged in the Commission of a permanent exemption Hedge Fund Management, Inc. Complaint have had no involvement in from section 9(a) of the Act requested (‘‘USTHFM’’), Merrill Lynch, Pierce, providing investment advisory, pursuant to the application or the Fenner & Smith, Incorporated subadvisory or principal underwriting revocation or removal of any temporary (‘‘MLPFS’’), IQ Investment Advisors services to Funds and will not have any exemptions granted under the Act in LLC (‘‘IQ’’), Roszel Advisors, LLC future involvement in such activities. connection with the application. (‘‘Roszel’’), Nuveen Asset Management 5. Applicants state that the inability to Temporary Order (‘‘NAM’’), Nuveen Investments Advisers continue to provide investment advisory Inc. (‘‘NIA’’), Nuveen Investments and subadvisory services to Funds and The Commission has considered the Institutional Services Group, LLC principal underwriting services to open- matter and finds that Applicants have (‘‘ISG’’), Nuveen HydePark Group, LLC end Funds would result in potential made the necessary showing to justify (‘‘Nuveen HydePark’’), NWQ Investment hardship for the Funds and their granting a temporary exemption. Management Company LLC (‘‘NWQ’’), shareholders. Applicants state that they Accordingly, Nuveen Investment Solutions, Inc. will, as soon as reasonably practical, It is hereby ordered, pursuant to (‘‘NIS’’), Santa Barbara Asset distribute written materials, including section 9(c) of the Act, that Applicants Management, LLC (‘‘Santa Barbara’’), an offer to meet in person to discuss the and any other Covered Persons are Symphony Asset Management LLC materials, to the boards of directors of granted a temporary exemption from the (‘‘Symphony’’), Tradewinds Global the Funds (‘‘Boards’’) for which the provisions of section 9(a), solely with Investors, LLC (‘‘Tradewinds’’) and Applicants serve as investment adviser, respect to the Injunction, subject to the Winslow Capital Management, Inc. investment subadviser or principal condition in the application, from June (‘‘Winslow’’, together with NAM, NIA, underwriter, including the directors 9, 2009, until the Commission takes ISG, Nuveen HydePark, NWQ, NIS,

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Santa Barbara, Symphony and applicant using the Company name box, violated section 15(c) of the Exchange Tradewinds, the ‘‘Nuveen Advisers’’), at http://www.sec.gov/search/ Act in connection with the marketing Nuveen Investments, LLC (‘‘Nuveen search.htm or by calling (202) 551– and sale of auction rate securities Investments’’), KECALP Inc. 8090. (‘‘ARS’’). The Complaint alleged that (‘‘KECALP’’) and Merrill Lynch Applicants’ Representations BAS and BAI misled customers Ventures, LLC (‘‘Ventures’’) regarding the fundamental nature and (collectively, ‘‘Applicants’’).1 1. BAS, an indirect wholly owned increasing risk associated with ARS that subsidiary of Bank of America DATES: Filing Date: The application was they underwrote, marketed and sold. filed on June 3, 2009. Applicants have Corporation (‘‘BAC’’), is a full service Without admitting or denying any of the agreed to file an amendment during the U.S. investment bank and brokerage allegations in the Complaint, except as notice period, the substance of which is firm that provides a wide range of to jurisdiction, BAS and BAI consented reflected in this notice. investment banking, and financial to the entry of the Judgment that advisory services to corporate, included, among other things, the entry HEARING OR NOTIFICATION OF HEARING: An institutional and individual clients. order granting the application will be of the Injunction and certain BAS is registered as an investment undertakings to take various remedial issued unless the Commission orders a adviser under the Investment Advisers hearing. Interested persons may request actions for the benefit of purchasers of Act of 1940 (‘‘Advisers Act’’) and is certain ARS. a hearing by writing to the registered as a broker-dealer under the Commission’s Secretary and serving Securities Exchange Act of 1934 Applicants’ Legal Analysis applicants with a copy of the request, (‘‘Exchange Act’’). BAI is a wholly 1. Section 9(a)(2) of the Act, in personally or by mail. Hearing requests owned subsidiary of Bank of America, should be received by the Commission relevant part, prohibits a person who N.A. and also an indirect subsidiary of has been enjoined from engaging in or by 5:30 p.m. on July 6, 2009, and should BAC. BAI is registered as an investment be accompanied by proof of service on continuing any conduct or practice in adviser under the Advisers Act and is connection with the purchase or sale of applicants, in the form of an affidavit or, registered as a broker-dealer under the a security, or in connection with for lawyers, a certificate of service. Exchange Act. While BAS and BAI do activities as an underwriter, broker or Hearing requests should state the nature not currently serve, and no existing dealer, from acting, among other things, of the writer’s interest, the reason for the company of which BAS or BAI is an as an investment adviser or depositor of request, and the issues contested. affiliated person (other than the any registered investment company or a Persons who wish to be notified of a Applicants) currently serves, as principal underwriter for any registered hearing may request notification by investment adviser, depositor or open-end investment company, writing to the Commission’s Secretary. principal underwriter for a registered registered unit investment trust, or ADDRESSES: Secretary, U.S. Securities investment company (‘‘RIC’’), or registered face-amount certificate and Exchange Commission, 100 F principal underwriter for any registered company. Section 9(a)(3) of the Act Street, NE., Washington, DC 20549– open-end investment company, makes the prohibition in section 9(a)(2) 1090; Applicants: BAS, One Bryant registered investment trust (‘‘UIT’’) or applicable to a company, any affiliated Park, New York, NY 10036; BAI, CMA, face amount certificate company or person of which has been disqualified BAIA, BACA, 100 Federal Street, employees’ securities companies under the provisions of section 9(a)(2). Boston, MA 02110; CWAM, 227 West (‘‘ESC’’, and together with RICs, the Section 2(a)(3) of the Act defines Monroe Street, Suite 3000, Chicago, IL ‘‘Funds,’’ and such services, the ‘‘Fund ‘‘affiliated person’’ to include, among 60606; CMDI, One Financial Center, Servicing Activities’’), each may do so others, any person directly or indirectly Boston, MA 02110; USTHFM, 225 High in the future. CMA, CWAM, BAIA, controlling, controlled by, or under Ridge Road, West Building, Stamford, BACA, USTHFM, IQ, Roszel, the common control, with the other person. CT 06905; MLPFS, IQ, KECALP, Nuveen Advisers and KECALP are Applicants state that BAS and BAI are Ventures, North Tower, 4 World registered as investment advisers under or may be considered affiliated persons Financial Center, New York, NY 10080; the Advisers Act and provide of each of the other Applicants within Roszel, 1700 Merrill Lynch Drive, investment advisory or subadvisory the meaning of section 2(a)(3). Pennington, NJ 08534; and the Nuveen services to Funds. Ventures provides Applicants state that, as a result of the Advisers and Nuveen Investments, 333 investment advisory services to an ESC. Injunction, they would be subject to the West Wacker Drive, Chicago, IL 60606. CMDI, MLPFS and Nuveen Investments prohibitions of section 9(a). FOR FURTHER INFORMATION CONTACT: are registered as broker-dealers under 2. Section 9(c) of the Act provides that Emerson S. Davis, Senior Counsel, at the Exchange Act and serve as principal the Commission shall grant an 202–551–6868, or Julia Kim Gilmer, underwriters for certain Funds. Nuveen application for exemption from the Branch Chief, at 202–551–6821 Investments also serves as depositor to disqualification provisions of section (Division of Investment Management, certain UITs. 9(a) of the Act if it is established that Office of Investment Company 2. On June 9, 2009, the United States these provisions, as applied to Regulation). District Court for the Southern District of New York entered a judgment, which Applicants, are unduly or SUPPLEMENTARY INFORMATION: The included the Injunction, against BAS disproportionately severe or that the following is a temporary order and a and BAI (‘‘Judgment’’) in a matter conduct of the Applicants has been such summary of the application. The brought by the Commission.2 The as not to make it against the public complete application may be obtained Commission alleged in the complaint interest or the protection of investors to via the Commission’s Web site by (‘‘Complaint’’) that BAS and BAI grant the exemption. Applicants have searching for the file number, or an filed an application pursuant to section 2 Securities and Exchange Commission v. Banc of 9(c) seeking a temporary and permanent 1 Applicants request that any relief granted America Securities LLC and Banc of America order exempting the Applicants and the pursuant to the application also apply to any other Investment Services, Inc., Judgment against Banc of company of which BAS or BAI is or may become America Securities LLC and Banc of America other Covered Persons from the an affiliated person (together with the Applicants, Investment Services, Inc., 09 CIV 5170 (S.D.N.Y., disqualification provisions of section the ‘‘Covered Persons’’). entered June 9, 2009). 9(a).

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3. Applicants believe they meet the further state that prohibiting them from SECURITIES AND EXCHANGE standards for exemption specified in providing Fund Servicing Activities COMMISSION section 9(c). Applicants state that the would not only adversely affect their prohibitions of section 9(a) as applied to [Release Nos. 33–9037A; 34–60032A; IC– businesses (except for BAI and BAS) but 28757A; File No. 265–25] them would be unduly and would also adversely affect their disproportionately severe and that the employees who are involved in Fund Investor Advisory Committee; Notice conduct of Applicants has been such as Servicing Activities. Applicants also of Federal Advisory Committee not to make it against the public interest state that disqualifying KECALP and Establishment; Correction or the protection of investors to grant Ventures from continuing to provide the requested exemption from section investment advisory services to ESCs is In FR Doc. No. E9–13349, on page 9(a). not in the public interest or in 27359 for Tuesday, June 9, 2009, the 4. Applicants state that the conduct furtherance of the protection of link for sending electronic comments to alleged in the Complaint did not involve investors and would frustrate the the Commission was incorrectly stated any of the Applicants acting in their expectations of eligible employees who in two places. The correct link reads as capacity as investment adviser, sub- invest in ESCs. Applicants state that it follows: (http://www.sec.gov/rules/ adviser, depositor or principal would not be consistent with the other.shtml). underwriter for any of the Funds. purposes of the ESC provisions of the Dated: June 9, 2009. Applicants also state that to the best of Act to require another entity not Florence E. Harmon, their knowledge, none of the current affiliated with Merrill Lynch & Co., Inc., Deputy Secretary. directors and officers of the Applicants or BAC to manage the ESCs. (other than BAS and BAI) or their [FR Doc. E9–13934 Filed 6–12–09; 8:45 am] 7. Applicants state that several BILLING CODE 8010–01–P employees that engage in Fund Applicants and certain of their affiliates Servicing Activities (or any other have previously received orders under persons in such roles during the time section 9(c), as described in greater SECURITIES AND EXCHANGE period covered by the Complaint) detail in the application. participated in the conduct alleged in COMMISSION the Complaint to have constituted the Applicants’ Condition Sunshine Act Meeting violations that provide a basis for the Applicants agree that any order Injunction. Applicants further state that Notice is hereby given, pursuant to granting the requested relief will be any personnel at BAS and BAI who the provisions of the Government in the subject to the following condition: participated in the conduct alleged in Sunshine Act, Public Law 94–409, that the Complaint to have constituted the Any temporary exemption granted the Securities and Exchange violations that provide a basis for the pursuant to the application shall be Commission will hold a Closed Meeting Injunction have had no, and will not without prejudice to, and shall not limit on Friday, June 19, 2009 at 11 a.m. have any future involvement in the the Commission’s rights in any manner Commissioners, Counsel to the Applicants’ Fund Servicing Activities. with respect to, any Commission Commissioners, the Secretary to the 5. Applicants state that the inability of investigation of, or administrative Commission, and recording secretaries the Applicants to engage in Fund proceedings involving or against, will attend the Closed Meeting. Certain Servicing Activities would result in Covered Persons, including without staff members who have an interest in potentially severe financial hardships limitation, the consideration by the the matters also may be present. for the Funds they serve and the Funds’ Commission of a permanent exemption The General Counsel of the shareholders or unitholders. Applicants from section 9(a) of the Act requested Commission, or his designee, has state that they will distribute written pursuant to the application or the certified that, in his opinion, one or materials, including an offer to meet in revocation or removal of any temporary more of the exemptions set forth in 5 person to discuss the materials, to the exemptions granted under the Act in U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) boards of directors of the Funds (the connection with the application. and 17 CFR 200.402(a)(3), (5), (7), 9(ii) ‘‘Boards’’), including the directors who Temporary Order and (10), permit consideration of the are not ‘‘interested persons,’’ as defined scheduled matters at the Closed in section 2(a)(19) of the Act, of the The Commission has considered the Meeting. Funds and their independent legal matter and finds that the Applicants Commissioner Paredes, as duty counsel as defined in rule 0–1(a)(6) have made the necessary showing to officer, voted to consider the items under the Act, if any, regarding the justify granting a temporary exemption. listed for the Closed Meeting in a closed Injunction, any impact on the Funds, Accordingly, session. and the application. Applicants state It is hereby ordered, pursuant to The subject matter of the Closed that they will provide the Boards with section 9(c) of the Act, that Applicants Meeting scheduled for Friday, June 19, all information concerning the and any other Covered Persons are 2009 will be: institution and settlement Injunction and the application that is granted a temporary exemption from the of injunctive actions; institution and necessary for the Funds to fulfill their provisions of section 9(a), solely with settlement of administrative disclosure and other obligations under respect to the Injunction, subject to the proceedings; and other matters related the Federal securities laws. condition in the application, from June to enforcement proceedings. 6. Applicants also state that, if they 9, 2009, until the Commission takes At times, changes in Commission were barred from providing Fund final action on their application for a priorities require alterations in the Servicing Activities to the Funds, the permanent order. scheduling of meeting items. effect on their businesses and For further information and to employees would be severe. Applicants By the Commission. ascertain what, if any, matters have been state that they have committed Florence E. Harmon, added, deleted or postponed, please substantial capital and resources to Deputy Secretary. contact: establishing an expertise in providing [FR Doc. E9–14006 Filed 6–12–09; 8:45 am] The Office of the Secretary at (202) Fund Servicing Activities. Applicants BILLING CODE 8010–01–P 551–5400.

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Dated: June 10, 2009. the places specified in Item III below. zero. The Supplemental Distribution Florence E. Harmon, The Exchange has prepared summaries, Amount will be based on the percentage Deputy Secretary. set forth in sections A, B, and C below, change of the value of the S&P 500 [FR Doc. E9–14075 Filed 6–11–09; 11:15 am] of the most significant parts of such Index (‘‘Index’’) during the term of the BILLING CODE 8010–01–P statements. Certificates. The Supplemental A. Self-Regulatory Organization’s Distribution Amount for each Certificate Statement of the Purpose of, and will equal the product of (a) $10, (b) the SECURITIES AND EXCHANGE Statutory Basis for, the Proposed Rule percentage change in the value of the COMMISSION Change Index and (c) the Participation Rate, which is 90%–100%,5 provided that the [Release No. 34–60072; File No. SR– 1. Purpose NYSEArca–2009–46] Supplemental Distribution Amount will Trust Certificates are certificates not be less than zero.6 Self-Regulatory Organizations; NYSE representing an interest in a special A holder of the Certificates has an Arca, Inc.; Notice of Filing and Order purpose trust created pursuant to a trust interest in two separate securities— Granting Accelerated Approval of agreement. The trust only issues Trust equity index participation securities Proposed Rule Change Relating to the Certificates, which may or may not (‘‘Securities’’) and equity index warrants Listing and Trading of Safety First provide for the repayment of the (‘‘Warrants’’) of Citigroup Funding Inc.7 Trust Certificates Linked to the S&P original principal investment amount. The assets of the Trust will consist of 500® Index The sole purpose of the trust is to invest the Securities and the Warrants. the proceeds from its initial public Beginning on the date the Certificates June 9, 2009. offering to provide for a return linked to are issued and ending one business day Pursuant to Section 19(b)(1) of the the performance of specified assets and prior to the Valuation Date,8 a holder Securities Exchange Act of 1934 to engage only in activities incidental to can exercise an ‘‘exchange right’’. A 1 2 (‘‘Act’’) and Rule 19b–4 thereunder, these objectives. Trust Certificates pay holder can exercise the exchange right notice is hereby given that on May 28, an amount at maturity based upon the by providing notice to his or her broker 2009, NYSE Arca, Inc. (‘‘NYSE Arca’’ or performance of an underlying index or and instructing the broker to forward the ‘‘Exchange’’) filed with the indexes of equity securities an (‘‘Equity that notice to the institutional trustee for Securities and Exchange Commission Index Reference Asset’’); instruments the Certificates (U.S. Bank National (‘‘Commission’’) the proposed rule that are direct obligations of the issuing Association), on any business day, to change as described in Items I and II company, either exercisable throughout exchange the Certificates the investor below, which Items have been prepared their life (i.e., American style) or holds for a pro rata portion of the assets by the Exchange. The Commission is exercisable only on their expiration date of the Trust, which consist of the publishing this notice to solicit (i.e., European style), entitling the Securities and the Warrants. According comments on the proposed rule change holder to a cash settlement in U.S. to the Registration Statement, such from interested persons and is dollars to the extent that the foreign or holders will lose the benefit of principal approving the proposed rule change on domestic index has declined below (for protection at maturity, and this could an accelerated basis. a put warrant) or increased above (for a result in their receiving substantially I. Self-Regulatory Organization’s call warrant) the pre-stated cash less than the amount of the original Statement of the Terms of Substance of settlement value of the index (‘‘Index investment in the Certificates. In order the Proposed Rule Change Warrants’’); or a combination of two or to exercise the exchange right, the more Equity Index Reference Assets or investor’s account must be approved for The Exchange, through its wholly- Index Warrants, as set forth in Rule options trading.9 owned subsidiary NYSE Arca Equities, 5.2(j)(7). The Securities will mature on the Inc. (‘‘NYSE Arca Equities’’ or the The Exchange proposes to list under Maturity Date. At maturity, each ‘‘Corporation’’), proposes to list under Rule 5.2(j)(7) the Safety First Trust Security will pay a ‘‘Security Payment’’ NYSE Arca Equities Rule 5.2(j)(7) Series 2009–3, Principal-Protected Trust equal to $10 plus a ‘‘Security Return (‘‘Trust Certificates’’) Safety First Trust Certificates Linked to the S&P 500® Amount’’, which could be positive, zero Series 2009–3, Principal-Protected Trust 3 or negative. If the value of the Index on ® Index (‘‘Certificates’’). According to the Certificates Linked to the S&P 500 Registration Statement, the Certificates the Valuation Date is greater than its Index. The text of the proposed rule are preferred securities of Safety First value on the pricing date, the Security change is available on the Exchange’s Trust Series 2009–3 (‘‘Trust’’) and will Return Amount for each Security will Web site at http://www.nyse.com, at the mature on a specified date in 2014 equal the product of (a) $10, (b) the Exchange’s principal office and at the (‘‘Maturity Date’’).4 Investors will percentage increase in the Index and (c) Commission’s Public Reference Room. receive at maturity for each certificate the Participation Rate, which equals II. Self-Regulatory Organization’s held intact (that is, that has not been 90%–100% (e.g., assuming a Statement of the Purpose of, and exchanged by the holder, as described Participation Rate of 90%, if the Index Statutory Basis for, the Proposed Rule below) an amount in cash equal to $10 rises 30%, the Security Return Amount Change plus a ‘‘Supplemental Distribution would be $2.70 ($10 times 0.30 times In its filing with the Commission, the Amount’’, which may be positive or 5 The Participation Rate will be determined at the self-regulatory organization included 3 See the Registration Statement for Safety First time of issuance of the Certificates. statements concerning the purpose of, Trust Series 2009–3, dated October 31, 2008 (Nos. 6 The Trust payments will not be guaranteed and basis for, the proposed rule change 333–154914, 154914–06, 154914–11); Registration pursuant to a financial guaranty insurance policy. and discussed any comments it received Statement for Safety First Trust Series 2009–3, 7 The Securities and Warrants will not be on the proposed rule change. The text dated February 18, 2009 (Nos. 333–157386 and exchange-listed and may trade over-the-counter. 8 of those statements may be examined at 333–157386–01) (‘‘Registration Statements’’). Capitalized terms used but not defined herein 4 The Certificates will be subject to acceleration have the meanings set forth in the Registration to an earlier Maturity Date upon one of the Statements. 1 15 U.S.C. 78s(b)(1). acceleration events described in the Registration 9 See NYSE Arca Equities Rule 5.2(j)(7), 2 17 CFR 240.19b–4. Statements. Commentary .08.

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0.90), and the Security Payment would of at least $10 million. In addition, the relevant factors in exercising its be $12.70 ($10 plus $2.70)). issuer will be required to have a discretion to halt or suspend trading in If the value of the Index on the minimum tangible net worth of Trust Certificates. Trading may be Valuation Date is less than or equal to $250,000,000, and, in the alternative, halted because of market conditions or its value on the pricing date, the the issuer will be required to have a for reasons that, in the view of the Security Return Amount for each minimum tangible net worth of Exchange, make trading in Trust security will equal the product of (a) $150,000,000 and the original issue Certificates inadvisable. These may $10 and (b) the percentage decrease in price of the Certificates combined with include: (1) The extent to which trading the Index. Thus, because the holder’s all of the issuer’s other Trust Certificates is not occurring in the underlying participation in the depreciation of the listed on a national securities exchange securities; or (2) whether other unusual S&P 500 is not limited by the or otherwise publicly traded in the conditions or circumstances detrimental Participation Rate, if the value of the United States, must not be greater than to the maintenance of a fair and orderly Index on the Valuation Date is less than 25 percent of the issuer’s tangible net market are present.14 its value on the pricing date, investors worth at the time of issuance.11 The Information Dissemination. The value will participate fully in the depreciation Certificates also will be subject to the of the Index is calculated and of the Index (e.g., if the Index falls 30%, continued listing criteria of Rule disseminated on at least a 15-second the Security Return Amount would be 5.2(j)(7) 12 and will meet all other basis. If the Index is not being $¥3.00 ($10 times ¥0.30) and the criteria of Rule 5.2(j)(7). disseminated as required, the Exchange Security Payment would be $7.00 ($10 Additional information relating to may halt trading during the day on minus $3.00). The Security Return Citigroup Funding, Inc., the Trust, which the interruption first occurs. If Amount will be used only for the Certificates, Securities, Warrants, such interruption persists past the purpose of determining the Security exercise right, Security Return Amount, trading day in which it occurred, the Payment for the Securities and is Supplemental Distribution Amount, and Exchange will halt trading no later than different from the Supplemental risks is included in the Registration the beginning of the trading day Distribution Amount used in Statements. following the interruption. determining the maturity payment on Exchange Rules Applicable to Trust Quotation and last sale information the Certificates. Certificates. The Certificates will be will be disseminated by the Exchange The Warrants will be automatically subject to all Exchange rules governing via the Consolidated Tape. The value of exercised on the Maturity Date. If the the trading of equity securities. The the Index is widely disseminated by value of the Index increases or does not Exchange’s equity margin rules will major market data vendors and financial change, the Warrants will pay zero. If apply to transactions in Trust publications. the value of the Index decreases, the Certificates. The Certificates will trade Firewalls. Standard & Poor’s warrants will pay a positive amount during trading hours set forth in Rule (‘‘S&P’’),15 which publishes the Index, is 13 equal to the product of (a) $10 and (b) 7.34(a). not a registered broker-dealer, and the percentage decrease in the value of Trading Halts. With respect to trading Citigroup Funding, Inc. is not affiliated halts, the Exchange may consider all the Index. with S&P. With respect to any index The Certificates are similar to upon which the value of an issue of 11 The parameters relating to number of units, securities previously approved by the number of public beneficial holders and issuer Trust Certificates is based that is Commission for listing on the Exchange, assets and net worth and minimum tangible net maintained by a broker-dealer, the including Trust Certificates issued by worth are similar to those in NYSE Arca Equities Exchange would require that such Citigroup Funding, Inc. based on the Rule 5.2(j)(6)(A). broker-dealer erect a ‘‘firewall’’ around 12 10 Commentary .01 provides criteria for continued Index. At least one million publicly listing and provides that the Corporation will personnel responsible for the held trading units will be issued prior commence delisting or removal proceedings with maintenance of such index or who have to listing and trading on the Exchange, respect to an issue of Trust Certificates (unless the access to information concerning with at least 400 public beneficial Commission has approved the continued trading of adjustments to the index, and the index such issue) (i) if the aggregate market value or the holders. The issuer of the Certificates, principal amount of the securities publicly held is would be required to be calculated by a Citigroup Funding, Inc. has total assets less than $400,000; (ii) if the value of the index or third party who is not a broker-dealer. of at least $100 million and net worth composite value of the indexes is no longer Surveillance. The Exchange intends to calculated or widely disseminated on at least a 15- utilize its existing surveillance second basis with respect to indexes containing 10 See Securities Exchange Release Nos. 59861 only securities listed on a national securities procedures applicable to derivative (May 5, 2009), 74 FR 21839 (May 11, 2009) (SR– exchange, or on at least a 60-second basis with products, which include Trust NYSEArca–2009–33) (order approving Safety First respect to indexes containing foreign country Trust Certificates based on the Dow Jones Industrial Certificates, to monitor trading in the securities; or (iii) if such other event shall occur or Average); 59747 (April 10, 2009), 74 FR 18012 securities. The Exchange represents that condition exists which in the opinion of the (April 20, 2009) (SR–NYSEArca–2009–20) (order Corporation makes further dealings on the these procedures are adequate to approving Safety First Trust Certificates based on Corporation inadvisable. properly monitor Exchange trading of the S&P 500 Index); 59051 (December 4, 2008), 73 13 FR 75155 (December 10, 2008) (SR–NYSEArca– Pursuant to NYSE Arca Rule 7.34(a), the NYSE the securities in all trading sessions and 2008–123) (order approving Rule 5.2(j)(7) and Arca Marketplace will have three trading sessions to deter and detect violations of listing on the Exchange of 14 issues thereunder.) each day the Corporation is open for business Exchange rules and applicable federal Three of the issues in SR–NYSEArca–2008–123 unless otherwise determined by the Corporation: Opening Session—begins at 1:00:00 a.m. (Pacific securities laws. related to Trust Certificates based on the Index: The Exchange’s current trading Safety First Investments TIERS® Principal-Protected Time) and concludes at the commencement of the Minimum Return Trust Certificates, Series S&P Core Trading Session. The Opening Auction and surveillance focuses on detecting when 2003–23; Safety First Trust Series 2008–2 Principal- the Market Order Auction shall occur during the securities trade outside their normal Protected Trust Certificates Linked to the Index; Opening Session. patterns. When such situations are and Safety First Trust Series 2008–4 Principal- Core Trading Session—begins for each security at detected, surveillance analysis follows Protected Trust Certificates Linked to the Index. 6:30:00 a.m. (Pacific Time) or at the conclusion of The Certificates have similar characteristics and the Market Order Auction, whichever comes later, payout provisions to the Trust Certificates and concludes at 1:00:00 p.m. (Pacific Time). 14 See NYSE Arca Equities Rule 7.12, previously approved in the above-referenced Late Trading Session—begins following the Commentary .04. Exchange proposed rule changes for Safety First conclusion of the Core Trading Session and 15 S&P is a division of The McGraw-Hill Trust Certificates. concludes at 5:00:00 p.m. (Pacific Time). Companies, Inc.

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and investigations are opened, where C. Self-Regulatory Organization’s Number SR–NYSEArca–2009–46 and appropriate, to review the behavior of Statement on Comments on the should be submitted on or before July 6, all relevant parties for all relevant Proposed Rule Change Received From 2009. trading violations. Members, Participants or Others The Exchange may obtain information IV. Commission’s Findings and Order No written comments were solicited via ISG from other exchanges who are Granting Accelerated Approval of the or received with respect to the proposed members of the ISG.16 Proposed Rule Change In addition, the Exchange also has a rule change. After careful consideration, the general policy prohibiting the III. Solicitation of Comments Commission finds that the proposed distribution of material, non-public rule change is consistent with the Interested persons are invited to information by its employees. requirements of the Act and the rules submit written data, views, and Information Bulletin. Prior to the and regulations thereunder applicable to arguments concerning the foregoing, commencement of trading, the Exchange a national securities exchange.19 In will inform its ETP Holders in an including whether the proposed rule particular, the Commission believes that Information Bulletin of the special change is consistent with the Act. the proposal is consistent with Section characteristics and risks associated with Comments may be submitted by any of 6(b)(5) of the Act 20 in that it is designed trading an issue of Trust Certificates and the following methods: to prevent fraudulent and manipulative suitability recommendation Electronic Comments acts and practices, to promote just and requirements. equitable principles of trade, to foster • Use the Commission’s Internet Specifically, the Information Bulletin cooperation and coordination with comment form (http://www.sec.gov/ will discuss the following: (1) The persons engaged in regulating, clearing, rules/sro.shtml); or procedures for purchases and exchanges settling, processing information with • Send an e-mail to rule- of Trust Certificates; (2) NYSE Arca respect to, and facilitating transaction in [email protected]. Please include File Equities Rule 9.2(a), which imposes a securities, and, in general to protect Number SR–NYSEArca–2009–46 on the duty of due diligence on its ETP Holders investors and the public interest. to learn the essential facts relating to subject line. The Commission believes that the every customer prior to trading an issue Paper Comments proposal to list and trade the Certificates of Trust Certificates; (3) trading hours; on the Exchange is consistent with • Send paper comments in triplicate and (4) trading information. Section 11A(a)(1)(C)(iii) of the Act,21 to Elizabeth M. Murphy, Secretary, In addition, the Information Bulletin which sets forth Congress’ finding that Securities and Exchange Commission, will reference that an issue of Trust it is in the public interest and Certificates is subject to various fees and Station Place, 100 F Street, NE., appropriate for the protection of expenses described in the applicable Washington, DC 20549–1090. investors and the maintenance of fair prospectus. All submissions should refer to File and orderly markets to assure the Number SR–NYSEArca–2009–46. This 2. Statutory Basis availability to brokers, dealers, and file number should be included on the investors of information with respect to The proposed rule change is subject line if e-mail is used. To help the quotations for and transactions in consistent with Section 6(b) 17 of the Act Commission process and review your securities. The Exchange will in general and furthers the objectives of comments more efficiently, please use disseminate quotation and last-sale data Section 6(b)(5) 18 in particular in that it only one method. The Commission will information via the Consolidated Tape. is designed to prevent fraudulent and post all comments on the Commission’s In addition, the value of the Index is manipulative acts and practices, to Internet Web site (http://www.sec.gov/ calculated on at least a 15-second basis promote just and equitable principles of rules/sro.shtml). Copies of the and is widely disseminated by major trade, to foster cooperation and submission, all subsequent market data vendors and financial coordination with persons engaged in amendments, all written statements publications. regulating, clearing, settling, processing with respect to the proposed rule The Commission further believes that information with respect to, and change that are filed with the the proposal to list and trade the facilitating transaction in securities, Commission, and all written Certificates is reasonably designed to and, in general to protect investors and communications relating to the promote fair disclosure of information the public interest. The proposed rule proposed rule change between the that may be necessary to price the change will permit listing on the Commission and any person, other than Certificates. The Exchange represents Exchange in a timely manner of the those that may be withheld from the that, if the value of the Index is not Certificates. The Exchange believes that public in accordance with the being disseminated as required, the the provisions of Rule 5.2(j)(7), together provisions of 5 U.S.C. 552, will be Exchange may halt trading during the with the Exchange’s applicable available for inspection and copying in day on which the interruption first surveillance, serve to foster investor the Commission’s Public Reference occurs. If such interruption persists past protection and the public interest. Room, 100 F Street, NE., Washington, the trading day in which it occurred, the B. Self-Regulatory Organization’s DC 20549, on official business days Exchange will halt trading no later than Statement on Burden on Competition between the hours of 10 a.m. and 3 p.m. the beginning of the trading day Copies of such filing also will be following the interruption. The The Exchange does not believe that available for inspection and copying at Exchange may consider all relevant the proposed rule change will impose the principal office of the Exchange. All factors in exercising its discretion to any burden on competition that is not comments received will be posted halt or suspend trading in Trust necessary or appropriate in furtherance without change; the Commission does of the purposes of the Act. not edit personal identifying 19 In approving this proposed rule change, the information from submissions. You Commission notes that it has considered the 16 For a list of current members of the ISG, see proposed rule’s impact on efficiency, competition, http://www.isgportal.org. should submit only information that and capital formation. See 15 U.S.C. 78c(f). 17 15 U.S.C. 78f(b). you wish to make publicly available. All 20 15 U.S.C. 78f(b)(5). 18 15 U.S.C. 78f(b)(5). submissions should refer to File 21 15 U.S.C. 78k–1(a)(1)(C)(iii).

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Certificates.22 S&P, which publishes the rules and applicable federal securities For the Commission, by the Division of Index, is not a registered broker-dealer, laws. The Exchange may obtain Trading and Markets, pursuant to delegated and Citigroup Funding, Inc. is not information via the Intermarket authority.27 affiliated with S&P. With respect to any Surveillance Group (‘‘ISG’’) from other Florence E. Harmon, index upon which the value of an issue exchanges who are members of the ISG. Deputy Secretary. of Trust Certificates is based and that is (2) Prior to the commencement of [FR Doc. E9–14005 Filed 6–12–09; 8:45 am] maintained by a broker-dealer, the trading, the Exchange will inform its BILLING CODE 8010–01–P Exchange would require that such ETP Holders in an Information Bulletin broker-dealer erect a ‘‘firewall’’ around of the special characteristics and risks personnel responsible for the associated with trading the Certificates. SECURITIES AND EXCHANGE maintenance of such index or who have Specifically, the Information Bulletin COMMISSION access to information concerning will discuss the following: (a) The [Release No. 34–60062; File No. SR–NYSE– adjustments to the index, and the index procedures for purchases and exchanges 2009–53] would be required to be calculated by a of Trust Certificates; (b) NYSE Arca third party who is not a broker-dealer. Equities Rule 9.2(a), which imposes a Self-Regulatory Organizations; Notice In addition, the Exchange states that it duty of due diligence on its ETP Holders of Filing and Immediate Effectiveness has a generally policy prohibiting the to learn the essential facts relating to of Proposed Rule Change by New York distribution of material, non-public every customer prior to trading an issue Stock Exchange LLC Extending the information by its employees. of Trust Certificates; (c) trading hours; Moratorium Related to the The Commission also notes that the and (d) trading information. In addition, Qualification and Registration of Trust Certificates will be subject to the the Information Bulletin will reference Registered Competitive Market Makers requirements of NYSE Arca Equities that an issue of Trust Certificates is Pursuant to NYSE Rule 107A and Rule 5.2(j)(7), including the continued subject to various fees and expenses Competitive Traders Pursuant to NYSE listing criteria thereunder. Additionally, described in the applicable prospectus. Rule 110 to the Earlier of the Approval NYSE Arca states that: (1) At least one This approval order is based on the of SR–NYSE–2009–08 or June 30, 2009 million publicly held trading units will Exchange’s representations. be issued prior to listing and trading on The Commission finds good cause, June 8, 2009. the Exchange, with at least 400 public pursuant to Section 19(b)(2) of the Pursuant to Section 19(b)(1) 1 of the beneficial holders; (2) the issuer, Act,24 for approving the proposed rule Securities Exchange Act of 1934 (the Citigroup Funding, Inc., has total assets change prior to the 30th day after the ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 of at least $100 million and a net worth date of publication of notice in the notice is hereby given that, on June 2, of at least $10 million; and (3) the issuer Federal Register. The Commission notes 2009, New York Stock Exchange LLC will be required to have either (a) a that it has previously approved for (‘‘NYSE’’ or the ‘‘Exchange’’) filed with minimum tangible net worth of listing and trading on the Exchange the Securities and Exchange $250,000,000, or (b) a minimum tangible other issues of Trust Certificates issued Commission (the ‘‘Commission’’) the net worth of $150,000,000 and the by Citigroup Funding, Inc. based on the proposed rule change as described in original issue price of the Certificates, Index and other indexes that have Items I and II, below, which Items have combined with all of the issuer’s other similar characteristics and payout been prepared by the self-regulatory Trust Certificates listed on a national provisions to the Certificates.25 The organization. The Commission is securities exchange or otherwise Commission believes that the publishing this notice to solicit publicly traded in the United States, Exchange’s proposal to list and trade the comments on the proposed rule change must not be greater than 25% of the Certificates does not present any novel from interested persons. issuer’s tangible net worth at the time of or significant regulatory issues. The I. Self-Regulatory Organization’s issuance.23 Commission believes that accelerating Further, the Exchange represents that Statement of the Terms of Substance of approval of this proposal should benefit the Proposed Rule Change the Certificates are equity securities investors by creating, without undue subject to the Exchange’s rules delay, additional competition in the The Exchange proposes to extend the governing the trading of equity market for Trust Certificates. moratorium related to the qualification securities, including the Exchange’s and registration of Registered equity margin rules. In support of this V. Conclusion Competitive Market Makers (‘‘RCMMs’’) proposal, the Exchange has made It is therefore ordered, pursuant to pursuant to NYSE Rule 107A and representations, including: Section 19(b)(2) of the Act,26 that the Competitive Traders (‘‘CTs’’) pursuant (1) The Exchange’s surveillance proposed rule change (SR–NYSEArca– to NYSE Rule 110 to the earlier of the procedures are adequate to properly 2009–46) be, and it hereby is, approved approval of SR–NYSE–2009–08 or June monitor Exchange trading of the on an accelerated basis. 30, 2009. Certificates in all trading sessions and to II. Self-Regulatory Organization’s deter and detect violations of Exchange 24 15 U.S.C. 78s(b)(2). Statement of the Purpose of, and 25 See Securities Exchange Release Nos. 59861 22 Trading may be halted because of market (May 5, 2009), 74 FR 21839 (May 11, 2009) (SR– Statutory Basis for, the Proposed Rule conditions or for reasons that, in the view of the NYSEArca–2009–33) (approving the listing and Change Exchange, make trading in Trust Certificates trading of Safety First Trust Certificates linked to inadvisable. These may include: (1) The extent to the Dow Jones Industrial Average); 59051 In its filing with the Commission, the which trading is not occurring in the underlying (December 4, 2008), 73 FR 75155 (December 10, self-regulatory organization included securities; or (2) whether other unusual conditions 2008) (SR–NYSEArca–2008–123) (approving the statements concerning the purpose of, or circumstances detrimental to the maintenance of listing and trading of 14 issues of Trust Certificates and basis for, the proposed rule change a fair and orderly market are present. under NYSE Arca Equities Rule 5.2(j)(7)); and 23 The Commission notes that the foregoing 59747 (April 10, 2009), 74 FR 18012 (April 20, 27 criteria relating to the issuance and the issuer are 2009) (SR–NYSEArca–2009–20) (approving the 17 CFR 200.30–3(a)(12). substantially similar to the requirements applicable listing and trading of Trust Certificates linked to the 1 15 U.S.C.78s(b)(1). to Index-Linked Securities. See NYSE Arca Equities S&P 500 Index). 2 15 U.S.C. 78a. Rule 5.2(j)(6)(A). 26 15 U.S.C. 78s(b)(2). 3 17 CFR 240.19b–4.

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and discussed any comments it received RCMMs and CTs as viable classes of thereunder 11 because the foregoing on the proposed rule change. The text NYSE traders.7 proposed rule: (1) Does not significantly of those statements may be examined at The Exchange proposes to extend the affect the protection of investors or the the places specified in Item IV below. Moratorium as amended 8 to the earlier public interest; (2) does not impose any The Exchange has prepared summaries, of the approval of proposed rule change significant burden on competition; and set forth in sections A, B, and C below, 2009–08 or June 30, 2009 to allow 2009– (3) does not become operative for 30 of the most significant parts of such 08 to complete the rule filing process days after the date of filing, or such statements. pursuant to Rule 19b–4.9 shorter time as the Commission may A. Self-Regulatory Organization’s The Exchange will issue an designate if consistent with the Information Memo announcing the protection of investors and the public Statement of the Purpose of, and 12 Statutory Basis for, the Proposed Rule extension of the Moratorium. interest. The Exchange believes that an extension of the Moratorium is Change 2. Statutory Basis appropriate to permit the resolution of 1. Purpose The basis under the Securities the rule filing process with respect to The Exchange proposes to extend the Exchange Act of 1934 (the ‘‘Act’’) for SR–NYSE–2009–08. Therefore, the moratorium related to the qualification this proposed rule change is the Commission believes that this proposed and registration of Registered requirement under Section 6(b)(5) that rule change qualifies for immediate Competitive Market Makers (‘‘RCMMs’’) an exchange have rules that are effectiveness under paragraph (f)(6) of pursuant to NYSE Rule 107A and designed to promote just and equitable Rule 19b–4.13 Competitive Traders (‘‘CTs’’) pursuant principles of trade, to remove A proposed rule change filed to NYSE Rule 110 to the earlier of the impediments to and perfect the pursuant to Rule 19b–4(f)(6) under the approval of SR–NYSE–2009–08 4 or June mechanism of a free and open market Act 14 normally does not become 30, 2009. and a national market system and, in operative for 30 days after the date of its On September 22, 2005, the Exchange general, to protect investors and the filing. However, Rule 19b–4(f)(6)(iii) 15 filed SR–NYSE–2005–63 5 with the public interest. The Exchange believes permits the Commission to designate a Securities and Exchange Commission that the instant filing is consistent with shorter time if such action is consistent (‘‘Commission’’) proposing to these principles. Based on its review of with the protection of investors and the implement a moratorium on the data associated with RCMM and CT public interest. The NYSE has requested qualification and registration of new trading, the Exchange has concluded that the Commission waive the 30-day RCMMS and CTs (‘‘Moratorium’’).6 The that RCMMs and CTs no longer serve as operative delay. The Commission Moratorium allowed the Exchange to viable supplemental market makers. In believes that waiving the 30-day review the viability of RCMMs and CTs this instant filing, the Exchange seeks an operative delay is consistent with the in the Exchange’s evolving more extension of the Moratorium to protection of investors and the public electronic market. complete the 19b–4 rule filing process interest because it would allow the During the Moratorium, the Exchange following its proposed rule filing to Moratorium to continue without reviewed the quarterly volume data of eliminate RCMMs and CTs as viable interruption while awaiting the RCMM and CT trading data to classes of NYSE traders. completion of the rule filing process determine the average trading volume of with respect to SR–NYSE–2009–08. RCMMs. As a result of its review, the B. Self-Regulatory Organization’s Statement on Burden on Competition Therefore, the Commission designates Exchange concluded that RCMMs and that the proposed rule change become CTs no longer serve as viable The Exchange does not believe that operative immediately.16 supplemental market makers. the proposed rule change will impose At any time within 60 days of the Accordingly, the Exchange determined any burden on competition that is not filing of the proposed rule change, the that RCMMs and CTs should no longer necessary or appropriate in furtherance Commission may summarily abrogate be viable classes of traders on the of the purposes of the Act. such rule change if it appears to the Exchange. On April 10, 2009, the Commission that such action is Exchange filed a separate proposed rule C. Self-Regulatory Organization’s Statement on Comments on the necessary or appropriate in the public change, SR–NYSE–2009–08 (‘‘2009– interest, for the protection of investors, 08’’) with the Commission to eliminate Proposed Rule Change Received From Members, Participants, or Others or otherwise in furtherance of the purposes of the Act. 4 See Securities Exchange Act Release No. 59746 No written comments were solicited (April 10, 2009), 74 FR 17702 (April 16, 2009) (SR– or received with respect to the proposed IV. Solicitation of Comments NYSE–2009–08). 5 See Securities Exchange Act Release No. 52648 rule change. Interested persons are invited to (October 21, 2005), 70 FR 62155 (October 28, 2005) III. Date of Effectiveness of the submit written data, views, and (SR–NYSE–2005–63). Proposed Rule Change and Timing for 6 See Securities Exchange Act Release Numbers 11 17 CFR 240.19b–4(f)(6). 54140 (July 13, 2006), 71 FR 41491 (July 21, 2006) Commission Action 12 In addition, Rule 19b–4(f)(6)(iii) requires the (SR–NYSE–2006–48); 54985 (December 21, 2006), The proposed rule change has become self-regulatory organization to give the Commission 72 FR 171 (January 3, 2007) (SR–NYSE–2006–113); notice of its intent to file the proposed rule change, 55992 (June 29, 2007), 72 FR 37289 (July 9, 2007) effective pursuant to Section 19(b)(3)(A) along with a brief description and text of the 10 (SR–NYSE–2007–57); 56556 (September 27, 2007), of the Act and Rule 19b–4(f)(6) proposed rule change, at least five business days 72 FR 56421 (October 3, 2007) (SR–NYSE–2007– prior to the date of filing of the proposed rule 86); 57072 (December 31, 2007), 73 FR 1252 7 See Securities Exchange Act Release No. 59746 change, or such shorter time as designated by the (January 7, 2008) (SR–NYSE–2007–125); 57601 (April 10, 2009), 74 FR 17702 (April 16, 2009) (SR– Commission. NYSE has satisfied this requirement. (April 2, 2008), 73 FR 19123 (April 8, 2008) (SR– NYSE–2009–08). 13 17 CFR 240.19b–4(f)(6). NYSE–2008–22); 58033 (June 26, 2008), 73 FR 8 14 38265 (July 3, 2008) (SR–NYSE–2008–49); 58713 See Securities Exchange Act Release No. 53549 17 CFR 240.19b–4(f)(6). (October 2, 2008), 73 FR 59024 (October 8, 2008) (March 24, 2006), 71 FR 16388 (March 31, 2006) 15 17 CFR 240.19b–4(f)(6)(iii). (SR–NYSE–2008–96); 59069 (December 8, 2008); 73 (SR–NYSE–2006–11) (making certain amendments 16 For purposes only of waiving the 30-day FR 76081 (December 15, 2008) (SR–NYSE–2008– to the Moratorium). operative delay, the Commission has considered the 124); 59551 (March 10, 2009), 74 FR 11624 (March 9 17 CFR 240.19b–4. proposed rule’s impact on efficiency, competition, 18, 2009) (SR–NYSE–2009–24). 10 15 U.S.C. 78s(b)(3)(A). and capital formation. 15 U.S.C. 78c(f).

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arguments concerning the foregoing, For the Commission, by the Division of A. Self-Regulatory Organization’s including whether the proposed rule Trading and Markets, pursuant to delegated Statement of the Purpose of, and 17 change is consistent with the Act. authority. Statutory Basis for, the Proposed Rule Comments may be submitted by any of Florence E. Harmon, Change Deputy Secretary. the following methods: 1. Purpose [FR Doc. E9–13968 Filed 6–12–09; 8:45 am] Electronic Comments BILLING CODE 8010–01–P The Exchange proposes to amend NYSE Amex Equities Rule 70.25(c)(iii) • Use the Commission’s Internet to provide that all available contra-side comment form (http://www.sec.gov/ SECURITIES AND EXCHANGE liquidity within the possible execution rules/sro.shtml); or COMMISSION range of a d-Quote will be considered • Send an e-mail to rule- when determining whether to activate a [Release No. 34–60055; File No. SR– d-Quote.3 [email protected]. Please include File NYSEAmex–2009–24] Number SR–NYSE–2009–53 on the Background subject line. Self-Regulatory Organizations; NYSE As described more fully in a related Amex LLC, Notice of Filing of a Paper Comments rule filing,4 NYSE Euronext acquired Proposed Rule Change Amending Rule The Amex Membership Corporation 70.25 To Permit All Available Contra- • Send paper comments in triplicate (‘‘AMC’’) pursuant to an Agreement and to Elizabeth M. Murphy, Secretary, side Liquidity To Trigger the Execution Plan of Merger, dated January 17, 2008 Securities and Exchange Commission, of a d-Quote (the ‘‘Merger’’). In connection with the 100 F Street, NE., Washington, DC June 5, 2009. Merger, the Exchange’s predecessor, the 20549–1090. Pursuant to Section 19(b)(1) of the American Stock Exchange LLC (‘‘Amex’’), a subsidiary of AMC, became All submissions should refer to File Securities Exchange Act of 1934 1 2 a subsidiary of NYSE Euronext and was Number SR–NYSE–2009–53. This file (‘‘Act’’) and Rule 19b–4 thereunder, notice is hereby given that on June 4, renamed NYSE Amex LLC (‘‘NYSE number should be included on the Amex’’ or the ‘‘Exchange’’), and subject line if e-mail is used. To help the 2009, NYSE Amex LLC (‘‘NYSE Amex’’ or the ‘‘Exchange’’) filed with the continues to operate as a national Commission process and review your securities exchange registered under comments more efficiently, please use Securities and Exchange Commission (‘‘Commission’’) the proposed rule Section 6 of the Securities Exchange Act only one method. The Commission will 5 change as described in Items I and II of 1934, as amended (the ‘‘Act’’). The post all comments on the Commission’s below, which Items have been prepared effective date of the Merger was October Internet Web site (http://www.sec.gov/ by NYSE Amex. The Commission is 1, 2008. rules/sro.shtml). Copies of the publishing this notice to solicit In connection with the Merger, on submission, all subsequent comments on the proposed rule change December 1, 2008, the Exchange amendments, all written statements from interested persons. relocated all equities trading conducted with respect to the proposed rule on the Exchange legacy trading systems change that are filed with the I. Self-Regulatory Organization’s and facilities located at 86 Trinity Place, Commission, and all written Statement of the Terms of Substance of New York, New York, to trading systems communications relating to the the Proposed Rule Change and facilities located at 11 Wall Street, proposed rule change between the The Exchange proposes to amend New York, New York (the ‘‘Equities Commission and any person, other than Rule 70.25 to permit all available Relocation’’). The Exchange’s equity those that may be withheld from the contra-side liquidity to trigger the trading systems and facilities at 11 Wall public in accordance with the execution of a d-Quote. The text of the Street (the ‘‘NYSE Amex Trading provisions of 5 U.S.C. 552, will be proposed rule change is available at the Systems’’) are operated by the NYSE on 6 available for inspection and copying in Exchange, the Commission’s Public behalf of the Exchange. As part of the Equities Relocation, the Commission’s Public Reference Reference Room, and http:// www.nyse.com. NYSE Amex adopted NYSE Rules 1– Room, 100 F Street, NE., Washington, 1004, subject to such changes as DC 20549, on official business days II. Self-Regulatory Organization’s necessary to apply the Rules to the between the hours of 10 a.m. and 3 p.m. Statement of the Purpose of, and Exchange, as the NYSE Amex Equities Copies of the filing will also be available Statutory Basis for, the Proposed Rule Rules to govern trading on the NYSE for inspection and copying at the Change Amex Trading Systems.7 The NYSE principal office of the self-regulatory In its filing with the Commission, the organization. All comments received self-regulatory organization included 3 The purpose of the proposed rule changes is to will be posted without change; the amend NYSE Amex Equities Rule 70.25 to conform statements concerning the purpose of, with proposed amendments to corresponding NYSE Commission does not edit personal and basis for, the proposed rule change Rule 70.25 submitted in a companion filing by the identifying information from and discussed any comments it received New York Stock Exchange LLC (‘‘NYSE’’). See SR– submissions. You should submit only on the proposed rule change. The text NYSE–2009–55, formally submitted June 2, 2009. information that you wish to make of those statements may be examined at 4 See Securities Exchange Act Release No. 58673 (September 29, 2008), 73 FR 57707 (October 3, available publicly. All submissions the places specified in Item IV below. 2008) (SR–NYSE–2008–60 and SR–Amex 2008–62) should refer to File Number SR–NYSE– The Exchange has prepared summaries, (approving the Merger). 2009–53 and should be submitted on or set forth in sections A, B, and C below, 5 15 U.S.C. 78f. before July 6, 2009. of the most significant parts of such 6 See Securities Exchange Act Release No. 58705 statements. (October 1, 2008), 73 FR 58995 (October 8, 2008) (SR–Amex 2008–63) (approving the Equities Relocation). 17 17 CFR 200.30–3(a)(12). 7 See Securities Exchange Act Release Nos. 58705 1 15 U.S.C. 78s(b)(1). (October 1, 2008), 73 FR 58995 (October 8, 2008) 2 17 CFR 240.19b–4. Continued

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Amex Equities Rules, which became discretionary size instructions. to activate a d-Quote. The current rule operative on December 1, 2008, are Accordingly, that d-Quote would not therefore restricts which interest may be substantially identical to the current trade. considered rather than allow willing NYSE Rules 1–1004 and the Exchange Similarly, the d-Quote would not be interest to interact. continues to update the NYSE Amex activated even if the Book has contra- As proposed, if all available contra- Equities Rules as necessary to conform side undisplayed interest that could side volume within the discretionary with rule changes to corresponding meet both the discretionary pricing and price and size instructions of a d-Quote NYSE Rules filed by the NYSE. volume instructions of the d-Quote. is considered, such d-Quote will trade Taking the same example as above, if against such contra-side liquidity in the NYSE Amex Equities Rule 70.25 Exchange systems have 3,000 shares same manner that a market order or a Rule 70.25 governs the entry, offered at .09, which is not part of the marketable limit order would execute validation, and execution of bids and displayed offer but is both within the against such available contra-side offers represented by a Floor broker on discretionary pricing and volume liquidity. For example, assuming that the Floor of the Exchange via agency instructions of the d-Quote (1,000 shares the Exchange BBO is still .05 bid for interest files (‘‘e-Quotes’’) that include at the displayed offer at .08 plus 3,000 1,000 shares and offering 1,000 shares at discretionary instructions as to size and/ shares of contra-side volume at .09 .08, if a market order or marketable limit or price (‘‘d-Quotes’’). The discretionary meets the 4,000 minimum size and price order to buy 4,000 shares entered instructions that a Floor broker may instruction of the d-Quote), the d-Quote Exchange systems, such order would include with an e-Quote can relate to would not trade. Or, if in addition to the trade not only with the displayed offer the price at which the d-Quote may 1,000 shares offered at .08 that is of .08, but would also trade with any trade and the number of shares to which displayed, there is an additional 3,000 reserve interest that is better than the the discretionary price instruction shares offered at .08 in reserve interest, displayed offer (e.g., if there is non- applies. notwithstanding that the displayed offer displayed interest offered at .07), reserve Rule 70.25(c) provides that a Floor and reserve interest at the .08 price interest at the price of the displayed broker may designate the amount of his point would meet the discretionary offer, and if there is insufficient or her e-Quote to which discretionary volume instructions of the d-Quote, the liquidity at the displayed offer price or pricing instructions apply. Floor brokers d-Quote would not trade. better, the market order would sweep up may also designate a minimum or The Exchange notes that decreasing the Book. Similarly, as proposed, if the maximum size of contra-side volume the minimum discretionary size of the d-Quote bid for .05 had four cents of with which the Floor broker is willing d-Quote would not permit the d-Quote price discretion for a minimum size of to trade using discretionary pricing to trade with the contra-side liquidity 4,000 shares, that d-Quote would instructions. However, under current because the discretionary pricing interact with the market the same as a instructions of a d-Quote are active only Rule 70.25(c)(iii), Exchange systems market order or a marketable limit order for that portion of an e-Quote that also currently look only at the contra-side to buy 4,000 shares. has discretionary size instructions.9 For displayed interest on the Display The Exchange notes that the d-Quote ® 8 example, if a d-Quote for 1,000 shares Book (‘‘Book’’) to determine whether functionality sought with this rule has a discretionary price range of .04 the contra-side volume is within the d- proposal provides Floor brokers with and a minimum volume of 100 shares, Quote’s discretionary size range. functionality similar to that previously in the above example, only those 100 Therefore, the displayed bid or offer available to Floor brokers at the NYSE shares would trade against the must meet the minimum volume of the and Amex.10 As permitted by former displayed offer. The remaining 900 d-Quote before a d-Quote can be NYSE Rule 123A.30(a), a CAP–DI order shares would be treated as an e-Quote activated. was the elected or converted portion of bid for .05 and would not be eligible to For example, assuming the Exchange a percentage order that was convertible trade with the displayed offer or any Best Bid and Offer (‘‘BBO’’) is .05 bid for on a destabilizing tick and designated other interest within the discretionary 1,000 shares and offering 1,000 shares at for immediate execution or cancel price instructions. .08, a d-Quote bidding for .05 with four election. When elected, a CAP–DI order cents of price discretion and a minimum Proposed Amendment would have automatically executed share volume subject to such The Exchange proposes to amend against any contra-side volume available discretionary pricing instructions of Rule 70.25(c)(iii) to remove the at the electing price and was eligible to 4,000 shares would not be activated restriction that only the displayed participate in a sweep. The Rule because the displayed offer of 1,000 interest will be considered when 70.25(c)(iii) limitation that only shares is not sufficient to fill the determining whether the contra-side displayed interest is considered when volume is within the discretionary determining whether the contra-side (SR–Amex 2008–63); 58833 (October 22, 2008), 73 volume meets the d-Quotes FR 64642 (October 30, 2008) (SR–NYSE–2008–106); pricing instructions of the d-Quote. The 58839 (October 23, 2008), 73 FR 64645 (October 30, Exchange believes that all interest discretionary size instructions was 2008) (SR–NYSEALTR–2008–03); 59022 (November willing to trade at certain price points added during a time when Floor brokers 26, 2008), 73 FR 73683 (December 3, 2008) (SR– should be permitted to trade. Because still had the ability to enter CAP–DI NYSEALTR–2008–10); and 59027 (November 28, orders. 2008), 73 FR 73681 (December 3, 2008) (SR– Exchange systems have both displayed NYSEALTR–2008–11). and undisplayed liquidity, considering In connection with the Next 8 The Display Book system is an order only displayed contra-side liquidity Generation Market Model, the NYSE management and execution facility. The Display does not take into account the true state eliminated CAP orders in part because Book system receives and displays orders to the the manner in which such orders were DMMs, contains the Book, and provides a of liquidity when determining whether mechanism to execute and report transactions and processed impeded the efficiency of the publish results to the Consolidated Tape. The 9 See Rule 70.25(a)(iv) (‘‘Discretionary Display Book system is connected to a number of instructions will be applied only if all d-Quoting 10 Historically, Amex Floor brokers also had other Exchange systems for the purposes of prerequisites are met. Otherwise, the d-Quote will convert-and-parity (‘‘CAP’’) functionality similar to comparison, surveillance, and reporting be handled as a regular e-Quote, notwithstanding the NYSE CAP functionality. Amex eliminated this information to customers and other market data and the fact that the Floor broker has designated the e- functionality in connection with the national market systems. Quote as a d-Quote.’’). implementation of Regulation NMS.

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Book.11 Accordingly, Floor brokers no latency execution, which is particularly as the Commission may designate up to longer have the capability to enter an important for an algorithmically-driven 90 days of such date if it finds such order into Exchange systems that would trading strategy. Additionally, a longer period to be appropriate and be elected at certain price points and customer may choose to use a Floor publishes its reasons for so finding or then be eligible to trade with any broker because that customer wants the (ii) as to which the self-regulatory available contra-side liquidity. The benefit of that broker’s expertise in organization consents, the Commission Exchange notes that, when the NYSE managing complex orders, performing will: eliminated CAP orders, it did not have price discovery, and exercising (A) By order approve the proposed the technology to permit d-Quotes to discretion at the point of sale. rule change, or fully replicate the functionality of a CAP By modernizing d-Quote (B) Institute proceedings to determine order. Moreover, when d-Quote functionality, the Exchange is therefore whether the proposed rule change functionality was introduced in October not only replacing functionality that should be disapproved. 2006, the NYSE did not offer the ability was previously eliminated, but is also The Exchange has requested to enter fully dark reserve interest. Since providing customers who elect to use a accelerated approval of this proposed that time, the NYSE and NYSE Amex Floor broker with functionality to meet rule change prior to the 30th day after have added two new order types, the the diverse needs of all customers. the date of publication of the notice in Minimum Display Reserve Order and the Federal Register. The Commission the Non-Displayable Reserve Order.12 2. Statutory Basis is considering granting accelerated By restricting d-Quotes to be active only The statutory basis for the proposed approval of the proposed rule change at when the displayed interest meets the rule change is Section 6(b)(5) of the the end of a 21-day comment period. 13 discretionary size instructions, d-Quotes Act which requires the rules of an IV. Solicitation of Comments are limited in their ability to interact exchange to promote just and equitable with the type of liquidity that exists at principles of trade, to remove Interested persons are invited to the Exchange. impediments to and perfect the submit written data, views, and The Exchange therefore believes that mechanism of a free and open market arguments concerning the foregoing, the modernization of d-Quote and a national market system and, in including whether the proposed rule functionality proposed in this rule filing general, to protect investors and the change is consistent with the Act. enables willing interest to trade with all public interest. The proposed rule Comments may be submitted by any of willing contra-side liquidity, including change also is designed to support the the following methods: reserve interest, which will result in principles of Section 11A(a)(1) 14 of the Electronic Comments greater executed volume, better fill Act in that it seeks to assure fair • rates, new price improvement competition among brokers and dealers Use the Commission’s Internet opportunities for incoming orders, and and among exchange markets and the comment form (http://www.sec.gov/ improved overall market quality. practicability of brokers executing rules/sro.shtml); or • Send an e-mail to rule- Additionally, the proposed functionality investor’s orders in the best market. The [email protected]. Please include File for d-Quotes is consistent with the Exchange believes that permitting d- Number SR–NYSEAmex–2009–24 on initial purpose of providing Floor Quotes to consider all available contra- the subject line. brokers with functionality to replicate side liquidity when determining the functionalities and characteristics whether the discretionary size range of Paper Comments that Floor brokers exercised in an the d-Quote has been met meets such • Send paper comments in triplicate auction-market model and to modernize goals because it ensures that customer such tools as the manner of trading at to Elizabeth M. Murphy, Secretary, orders eligible to trade will execute Securities and Exchange Commission, the Exchange evolves. As such, this against willing contra-side liquidity. enhancement does not expand Station Place, 100 F Street, NE., functionality available to Floor brokers B. Self-Regulatory Organization’s Washington, DC 20549–1090. but merely restores functionality that Statement on Burden on Competition All submissions should refer to File Number SR–NYSEAmex–2009–24. This previously existed, albeit in a slightly The Exchange does not believe that file number should be included on the different format. the proposed rule change will impose subject line if e-mail is used. To help the The Exchange further believes that any burden on competition that is not Commission process and review your providing this improved functionality necessary or appropriate in furtherance comments more efficiently, please use provides customers with a greater array of the purposes of the Act. of execution and representation choices only one method. The Commission will when routing an order to the Exchange. C. Self-Regulatory Organization’s post all comments on the Commission’s For example, a customer currently can Statement on Comments on the Internet Web site (http://www.sec.gov/ choose, among others, to route an order Proposed Rule Change Received From rules/sro.shtml). Copies of the directly to the Book electronically from Members, Participants or Others submission, all subsequent an off-Floor location or route an order No written comments were solicited amendments, all written statements to a Floor broker for the Floor broker to or received with respect to the proposed with respect to the proposed rule represent on the Floor of the Exchange. rule change. change that are filed with the These options provide different benefits Commission, and all written for the customer. For example, routing III. Date of Effectiveness of the communications relating to the an order directly to Exchange systems Proposed Rule Change and Timing for proposed rule change between the provides the benefit of an ultra low Commission Action Commission and any person, other than Within 35 days of the date of those that may be withheld from the 11 See Securities Exchange Act Release Nos. publication of this notice in the Federal public in accordance with the 58845 (Oct. 24, 2008), 73 FR 64379 (Oct. 29, 2008) provisions of 5 U.S.C. 552, will be (SR–NYSE–2008–46) and 59022 (November 26, Register or within such longer period (i) 2008), 73 FR 73683 (December 3, 2008) (SR– available for inspection and copying in NYSEALTR–2008–10). 13 15 U.S.C. 78f(b)(5). the Commission’s Public Reference 12 See id. 14 15 U.S.C. 78k–1(a)(1). Room, 100 F Street, NE., Washington,

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DC 20549, on official business days Transactions) and Incorporated NYSE deletions or changes to their data on the between the hours of 10 a.m. and 3 p.m. Rule 440I (Records of Compensation facility system. The rule provides Copies of such filing also will be Arrangements—Floor Brokerage), as part guidelines for the review of uncompared available for inspection and copying at of the process of developing the transactions by clearing member firms the principal office of NYSE. All consolidated FINRA rulebook. and details the manner and timing of comments received will be posted The text of the proposed rule change notifications that must be provided and without change; the Commission does is available on FINRA’s Web site at the types of records that must be not edit personal identifying http://www.finra.org, at the principal maintained. information from submissions. You office of FINRA and at the Further, NYSE Rule 134(d) requires should submit only information that Commission’s Public Reference Room. floor brokers to maintain or participate you wish to make publicly available. All in an error account in which all bona submissions should refer to File II. Self-Regulatory Organization’s fide error transactions are processed and Number SR–NYSEAmex–2009–24 and Statement of the Purpose of, and recorded. The rule defines an ‘‘error’’ to should be submitted on or before July 6, Statutory Basis for, the Proposed Rule include an execution outside of an 2009. Change order’s written instructions (e.g., wrong For the Commission, by the Division of In its filing with the Commission, security, wrong side of the market, Trading and Markets, pursuant to delegated FINRA included statements concerning outside the limit price, over buying or authority.15 the purpose of and basis for the selling, duplicate execution, etc.) or Florence E. Harmon, proposed rule change and discussed any missing the market on a ‘‘held’’ order. Deputy Secretary. comments it received on the proposed In such cases, floor brokers use their error account to assume or acquire a [FR Doc. E9–13966 Filed 6–12–09; 8:45 am] rule change. The text of these statements may be examined at the places specified position as a result of a legitimate error. BILLING CODE 8010–01–P in Item IV below. FINRA has prepared Floor brokers are required pursuant to summaries, set forth in sections A, B, the rule to maintain a signed, time- SECURITIES AND EXCHANGE and C below, of the most significant stamped record, including supporting COMMISSION aspects of such statements. documentation of such error. The rule further requires every member not [Release No. 34–60070; File No. SR–FINRA– A. Self-Regulatory Organization’s associated with a member organization, 2009–038] Statement of the Purpose of, and the and every member associated with a Statutory Basis for, the Proposed Rule member organization that derives at Self-Regulatory Organizations; Change least 75% of its revenue from floor Financial Industry Regulatory brokerage based on execution of orders Authority, Inc.; Notice of Filing of 1. Purpose on the floor to report to the NYSE error Proposed Rule Change To Repeal As part of the process of developing transactions in such member’s or his or Incorporated NYSE Rule 134 a new consolidated rulebook her member organization’s account (Differences and Omissions—Cleared 3 (‘‘Consolidated FINRA Rulebook’’), which result in a profit of more than Transactions) and NYSE Rule 440I FINRA is proposing to repeal NYSE $500 for any transaction, or for more (Records of Compensation Incorporated Rule 134 (Differences and than $3,000 in any calendar week. Such Arrangements—Floor Brokerage) as Omissions—Cleared Transactions) and reports must contain a detailed record of Part of the Process To Develop the NYSE Incorporated Rule 440I (Records the errors and liquidating transactions. Consolidated FINRA Rulebook of Compensation Arrangements—Floor FINRA is proposing to delete Brokerage), to remove rules that are June 8, 2009. Incorporated NYSE Rule 134 from the specific to the New York Stock Pursuant to Section 19(b)(1) of the Transitional Rulebook and not adopt the Exchange, LLC (‘‘NYSE’’) marketplace Securities Exchange Act of 1934 rule into the Consolidated FINRA and relate primarily to activities by floor (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Rulebook because the rule is narrowly brokers. notice is hereby given that, on June 1, directed to the trading activities of 2009, Financial Industry Regulatory Incorporated NYSE Rule 134 NYSE floor brokers. FINRA believes that Authority, Inc. (‘‘FINRA’’) (f/k/a (Differences and Omissions—Cleared it is not necessary to transfer NYSE Rule National Association of Securities Transactions) 134 into the Consolidated FINRA Dealers, Inc. (‘‘NASD’’)) filed with the Rulebook because the resolution of The proposed rule change would trading errors on the NYSE and Securities and Exchange Commission repeal Incorporated NYSE Rule 134, (‘‘Commission’’) the proposed rule recordkeeping of error accounts is which sets forth procedures for clearing specific to the NYSE.4 change as described in Items I, II, and member firms to identify uncompared III below, which Items have been transactions and resolve them by Incorporated NYSE Rule 440I (Records prepared by FINRA. The Commission is making any necessary additions, of Compensation Arrangements—Floor publishing this notice to solicit Brokerage) comments on the proposed rule change 3 The current FINRA rulebook consists of (1) The proposed rule change would also from interested persons. FINRA Rules; (2) NASD Rules; and (3) rules repeal Incorporated NYSE Rule 440I, incorporated from NYSE (‘‘Incorporated NYSE I. Self-Regulatory Organization’s Rules’’) (together, the NASD Rules and Incorporated which requires each member and Statement of the Terms of Substance of NYSE Rules are referred to as the ‘‘Transitional member organization that is ‘‘primarily the Proposed Rule Change Rulebook’’). While the NASD Rules generally apply engaged as an agent in executing to all FINRA members, the Incorporated NYSE transactions on the Floor of the FINRA is proposing to repeal Rules apply only to those members of FINRA that Incorporated NYSE Rule 134 are also members of the NYSE (‘‘Dual Members’’). Exchange’’ (e.g., $2 brokers or (Differences and Omissions—Cleared The FINRA Rules apply to all FINRA members, unless such rules have a more limited application 4 In addition to being subject to SEC and FINRA by their terms. For more information about the rules, Dual Members also remain subject to the 15 17 CFR 200.30–3(a)(12). rulebook consolidation process, see FINRA NYSE’s rulebook. FINRA notes that the NYSE may 1 15 U.S.C. 78s(b)(1). Information Notice, March 12, 2008 (Rulebook determine to retain NYSE Rule 134 for its own 2 17 CFR 240.19b–4. Consolidation Process). purposes.

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independent brokers) to maintain NYSE Rule 440I into the Consolidated (B) institute proceedings to determine certain records of compensation FINRA Rulebook.10 whether the proposed rule change arrangements in excess of $5,000 per FINRA will announce the should be disapproved. year. The records must include a implementation date of the proposed IV. Solicitation of Comments description of each type of arrangement rule change in a Regulatory Notice to be and identify, by name, the parties to published no later than 90 days Interested persons are invited to each type of arrangement in effect. The following Commission approval. submit written data, views, and rule applies only if the member or 2. Statutory Basis arguments concerning the foregoing, member organization derives at least 75 including whether the proposed rule percent of its revenue from floor FINRA believes that the proposed rule change is consistent with the Act. brokerage. The rule also excludes any change is consistent with the provisions Comments may be submitted by any of compensation arrangement involving of Section 15A(b)(6) of the Act,11 which the following methods: the transmission of orders solely requires, among other things, that through the NYSE’s electronic order FINRA rules must be designed to Electronic Comments routing system. prevent fraudulent and manipulative • Use the Commission’s Internet NYSE Rule 440I was adopted in 1999 acts and practices, to promote just and comment form (http://www.sec.gov/ following an SEC order relating to the equitable principles of trade, and, in rules/sro.shtml); or settlement of an enforcement action general, to protect investors and the • Send an e-mail to rule- against the NYSE for failure to enforce public interest. FINRA believes that the [email protected]. Please include File compliance with Section 11(a) of the proposed rule change would remove Number SR–FINRA–2009–038 on the Act,5 Rule 11a–1 thereunder,6 and rules that are specific to the NYSE subject line. NYSE Rules 90, 95, and 111, which marketplace and relate primarily to relate to conduct by floor brokers.7 activities by floor brokers. The proposed Paper Comments NYSE Rule 440I was adopted to rule change would also advance the enhance the NYSE’s oversight of floor development of a more efficient and • Send paper comments in triplicate brokerage compensation arrangements effective Consolidated FINRA Rulebook. to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, while also fulfilling some of the B. Self-Regulatory Organization’s 100 F Street, NE., Washington, DC requirements imposed by the SEC’s Statement on Burden on Competition order. Thus, the NYSE determined to 20549–1090. limit the rule to floor brokers and FINRA does not believe that the All submissions should refer to File exclude other members in part because proposed rule change will result in any Number SR–FINRA–2009–038. This file ‘‘the requirements would be unduly burden on competition that is not number should be included on the burdensome on and impractical for necessary or appropriate in furtherance subject line if e-mail is used. To help the those members and member of the purposes of the Act. Commission process and review your organizations, based on the diverse C. Self-Regulatory Organization’s comments more efficiently, please use nature and size of their business Statement on Comments on the only one method. The Commission will 8 activities and customer base.’’ Proposed Rule Change Received From post all comments on the Commission’s The proposed rule change would Members, Participants or Others Internet Web site (http://www.sec.gov/ delete Incorporated NYSE Rule 440I rules/sro.shtml). Copies of the from the Transitional Rulebook and Written comments were neither submission, all subsequent would not adopt the rule into the solicited nor received. amendments, all written statements Consolidated FINRA Rulebook. NYSE III. Date of Effectiveness of the with respect to the proposed rule Rule 440I was adopted following the Proposed Rule Change and Timing for change that are filed with the issuance of an SEC order to enhance the Commission Action Commission, and all written NYSE’s ability to surveil the activity communications relating to the and compensation arrangements of floor Within 35 days of the date of proposed rule change between the brokers and to examine for their publication of this notice in the Federal Commission and any person, other than compliance with Section 11(a) of the Register or within such longer period (i) those that may be withheld from the Act, Rule 11a–1 thereunder, and NYSE as the Commission may designate up to public in accordance with the Rules 90, 95, and 111.9 FINRA does not 90 days of such date if it finds such provisions of 5 U.S.C. 552, will be believe it is necessary to incorporate longer period to be appropriate and available for inspection and copying in publishes its reasons for so finding or the Commission’s Public Reference (ii) as to which the self-regulatory 5 15 U.S.C. 78k(a). Room, 100 F Street, NE., Washington, 6 17 CFR 240.11a–1. organization consents, the Commission DC 20549, on official business days 7 See Securities Exchange Act Release No. 41996 will: between the hours of 10 a.m. and 3 p.m. (October 8, 1999), 64 FR 56560 (October 20, 1999). (A) by order approve the proposed Copies of the filing also will be available Subject to certain exceptions, these provisions generally prohibit exchange members from effecting rule change, or for inspection and copying at the transactions on the floor of an exchange for their principal office of FINRA. All comments own accounts, the accounts of associated persons, 10 In addition to being subject to SEC rules received will be posted without change; or an account over which they or their associated (including SEA Rule 17a–4(b)(7) (requiring every the Commission does not edit personal persons have investment discretion. See also member, broker, or dealer to retain all written identifying information from Securities Exchange Act Release No. 41574, Admin. agreements (or copies thereof) entered into by such Proceeding File No. 3–9925 (June 29, 1999). member, broker, or dealer relating to its business as submissions. You should submit only 8 See Securities Exchange Act Release No. 41441 such, including agreements with respect to any information that you wish to make (May 24, 1999), 64 FR 29723 (June 2, 1999). account) and FINRA rules, Dual Members also available publicly. All submissions 9 NYSE Rules 90, 95, and 111 were not remain subject to the NYSE’s rulebook. FINRA should refer to File Number SR–FINRA– incorporated into the Transitional FINRA Rulebook. notes that the NYSE may determine to retain NYSE Those rules, however, remain part of the NYSE’s Rule 440I for its own purposes. 2009–038 and should be submitted on rulebook. 11 15 U.S.C. 78o–3(b)(6). or before July 6, 2009.

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For the Commission, by the Division of any comments it received on the unexecuted portion of the order is then Trading and Markets, pursuant to delegated proposed rule change. The text of these routed to an away market, NASDAQ authority.12 statements may be examined at the will assess the standard rate for routing Florence E. Harmon, places specified in Item IV below. (generally $0.0026). The remaining Deputy Secretary. NASDAQ has prepared summaries, set unexecuted shares are posted on the [FR Doc. E9–13975 Filed 6–12–09; 8:45 am] forth in Sections A, B, and C below, of NASDAQ book and provided the BILLING CODE 8010–01–P the most significant aspects of such standard rebate based on the firms’ statements. average daily liquidity provided based on the existing pricing tiers. A. Self-Regulatory Organization’s SECURITIES AND EXCHANGE Statement of the Purpose of, and 2. Statutory Basis COMMISSION Statutory Basis for, the Proposed Rule NASDAQ believes that the proposed [Release No. 34–60069; File No. SR– Change rule change is consistent with the NASDAQ–2009–051] 1. Purpose provisions of Section 6 of the Act,4 in general, and with Section 6(b)(4) of the Self-Regulatory Organizations; The NASDAQ is establishing the price for Act,5 in particular, in that it provides for NASDAQ Stock Market LLC; Notice of members trading equities in the the equitable allocation of reasonable Filing and Immediate Effectiveness of NASDAQ Market Center using dues, fees and other charges among a Proposed Rule Change To Modify NASDAQ’s new pre-routing display or members and issuers and other persons Pricing for NASDAQ ‘‘Flash’’ ‘‘Flash’’ functionality described in using any facility or system which Functionality for Routable Orders NASDAQ Rule 4758(a)(1)(A). The Flash NASDAQ operates or controls. The functionality provides an optional pre- proposed fee is consistent with that June 8, 2009. routing display period for orders using standard in that it applies equally to all Pursuant to Section 19(b)(1) of the NASDAQ’s DOT, SCAN or STGY members using the Flash functionality. Securities Exchange Act of 1934 routing strategies. When voluntarily 1 2 It also recognizes the benefits of (‘‘Act’’) and Rule 19b–4 thereunder, employed by a member, the Flash- additional liquidity delivered to the notice is hereby given that on June 4, enabled routing strategies will first NASDAQ market place when NASDAQ 2009, The NASDAQ Stock Market LLC execute to the maximum extent possible members utilize the Flash functionality. (‘‘NASDAQ’’ or the ‘‘Exchange’’) filed in NASDAQ’s book, before displaying with the Securities and Exchange the remaining share amounts and prices B. Self-Regulatory Organization’s Commission (‘‘Commission’’) the to NASDAQ market participants and Statement on Burden on Competition proposed rule change as described in market data vendors for a period of time NASDAQ does not believe that the Items I, II, and III below, which Items not to exceed one-half of one second. If have been prepared by the Exchange. proposed rule change will result in any at the end of the Flash period the order burden on competition that is not The Commission is publishing this is not executed or is partially executed, notice to solicit comments on the necessary or appropriate in furtherance NASDAQ will route the order of the purposes of the Act, as amended. proposed rule change from interested automatically to the appropriate venue persons. selected by the chosen routing strategy.3 C. Self-Regulatory Organization’s I. Self-Regulatory Organization’s When Flash routing functionality Statement on Comments on the Proposed Rule Change Received From Statement of the Terms of Substance of becomes available for use it will be Members, Participants or Others the Proposed Rule Change assessed the following fees: $0.0015 per share executed during the Flash period Written comments were neither NASDAQ proposes a rule change to for firms that add more than 35 million solicited nor received. modify pricing for NASDAQ members shares of liquidity daily on average for that trade equities in the NASDAQ the month, and $0.0010 per share III. Date of Effectiveness of the Market Center using the ‘‘Flash’’ executed during the Flash period for all Proposed Rule Change and Timing for functionality set forth in NASDAQ Rule other firms. Commission Action 4758(a)(1)(A). This proposed rule An order that is designated as Flash The foregoing rule change has become change, which is effective upon filing, for routing can execute in a variety of effective pursuant to Section will become operative when the Flash ways. The following example will 19(b)(3)(A)(ii) of the Act 6 and functionality becomes available, illustrate how an execution occurs and subparagraph (f)(2) of Rule 19b–4 currently scheduled for June 8, 2009. how NASDAQ will assess fees. An order thereunder.7 At any time within 60 days The text of the proposed rule change is that is designated as Flash for routing of the filing of the proposed rule change, available at http:// and that takes liquidity from the the Commission may summarily nasdaqomx.cchwallstreet.com/, at NASDAQ book prior to the Flash period abrogate such rule change if it appears NASDAQ’s principal office, and at the will be assessed the standard fee of to the Commission that such action is Commission’s Public Reference Room. $0.0030 per share executed prior to the necessary or appropriate in the public II. Self-Regulatory Organization’s Flash period. If the unexecuted portion interest, for the protection of investors, Statement of the Purpose of, and of that order provides liquidity on or otherwise in furtherance of the Statutory Basis for, the Proposed Rule NASDAQ during the Flash period, it purposes of the Act. Change will be provided a liquidity rebate of IV. Solicitation of Comments either $0.0010 or $0.0015 per share In its filing with the Commission, executed during the Flash period based Interested persons are invited to NASDAQ included statements upon the member’s average daily submit written data, views, and concerning the purpose of and basis for volume of liquidity provided. If the still arguments concerning the foregoing, the proposed rule change and discussed 4 3 For further details on the processing of Flash 15 U.S.C. 78f. 12 17 CFR 200.30–3(a)(12). routing strategies, refer to Securities Exchange Act 5 15 U.S.C. 78f(b)(4). 1 15 U.S.C. 78s(b)(1). Release 59875 (May 6, 2009); 74 FR 22874 (May 14, 6 15 U.S.C. 78s(b)(3)(a)(ii). 2 17 CFR 240.19b–4. 2009) (SR–NASDAQ–2009–043). 7 17 CFR 240.19b–4(f)(2).

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including whether the proposed rule SECURITIES AND EXCHANGE II. Self-Regulatory Organization’s change is consistent with the Act. COMMISSION Statement of the Purpose of, and Comments may be submitted by any of Statutory Basis for, the Proposed Rule the following methods: [Release No. 34–60068; File No. SR–NSX– Change Electronic Comments 2009–04] In its filing with the Commission, the Exchange included statements • Use the Commission’s Internet Self-Regulatory Organizations; concerning the purpose of and basis for comment form (http://www.sec.gov/ National Stock Exchange, Inc.; Notice the proposed rule change and discussed rules/sro.shtml); or of Filing and Immediate Effectiveness any comments it received on the • Send an e-mail to rule- of Proposed Rule Change To Amend proposed rule change. The text of these [email protected]. Please include File the Fee and Rebate Schedule To (i) statements may be examined at the Number SR–NASDAQ–2009–051 on the Increase From 50,000 to 5 Million the places specified in Item IV below. The subject line. Liquidity Adding Average Daily Volume Exchange has prepared summaries, set Thresholds in the Automatic Execution forth in sections A, B, and C below, of Paper Comments Mode of Order Interaction (‘‘AutoEx’’); the most significant parts of such statements. • Send paper comments in triplicate (ii) Include Securities Less Than One to Elizabeth M. Murphy, Secretary, Dollar in the Calculation of Liquidity A. Self-Regulatory Organization’s Securities and Exchange Commission, Adding and Total Average Volume Statement of the Purpose of, and 100 F Street, NE., Washington, DC Thresholds in AutoEx; and (iii) Statutory Basis for, the Proposed Rule 20549–1090. Eliminate the Two Lower Tiers With Change Respect to the AutoEx Liquidity Purpose All submissions should refer to File Adding Zero Display Order Rebate Number SR–NASDAQ–2009–051. This With this rule change, the Exchange is file number should be included on the June 8, 2009. proposing to make three changes to the subject line if e-mail is used. To help the Pursuant to Section 19(b)(1) of the Fee Schedule, in each case only with Commission process and review your 3 Securities Exchange Act of 1934 (the respect to AutoEx. comments more efficiently, please use First, the liquidity adding average ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 only one method. The Commission will daily volume (‘‘Liquidity Adding ADV’’) notice is hereby given that on May 29, post all comments on the Commission’s thresholds in AutoEx that are currently 2009, National Stock Exchange, Inc. Internet Web site (http://www.sec.gov/ set at 50,000 are proposed to be rules/sro.shtml). Copies of the filed with the Securities and Exchange increased to 5 million. This threshold is submission, all subsequent Commission (‘‘Commission’’) the used to determine both the amount of amendments, all written statements proposed rule change, as described in the liquidity taking fee in AutoEx and with respect to the proposed rule Items I, II, and III below, which Items eligibility for receipt of the liquidity change that are filed with the have been prepared by the Exchange. adding zero display order rebate in Commission, and all written The Commission is publishing this AutoEx. Under the Fee Schedule in communications relating to the notice to solicit comment on the effect prior to effectiveness of the proposed rule change between the proposed rule change from interested instant proposed rule change, an ETP Commission and any person, other than persons. Holder needs to achieve a Liquidity Adding ADV 4 of 50,000 in order to those that may be withheld from the I. Self-Regulatory Organization’s obtain a reduced liquidity taking fee public in accordance with the Statement of the Terms of Substance of from $0.0030 to $0.0028 per share. The provisions of 5 U.S.C. 552, will be the Proposed Rule Change available for inspection and copying in instant rule filing proposes to increase the Commission’s Public Reference National Stock Exchange, Inc. the Liquidity Adding ADV used with Room, on official business days between (‘‘NSX®’’ or ‘‘Exchange’’) is proposing to respect to AutoEx liquidity taking fees the hours of 10 a.m. and 3 p.m. Copies amend the Fee and Rebate Schedule (the from 50,000 to 5 million. In addition, of the filing also will be available for ‘‘Fee Schedule’’) issued pursuant to under the Fee Schedule in effect prior inspection and copying at the principal Exchange Rule 16.1(c) in order to (i) to effectiveness of the instant proposed office of the Exchange. All comments increase from 50,000 to 5 million the rule change, an ETP Holder needs to received will be posted without change; liquidity adding average daily volume achieve a Liquidity Adding ADV of the Commission does not edit personal thresholds in the Automatic Execution 50,000 in order to become eligible to identifying information from receive rebates for submitting liquidity Mode of order interaction (‘‘AutoEx’’); 5 submissions. You should submit only (ii) include securities less than one adding Zero Display Orders in AutoEx. information that you wish to make dollar in the calculation of liquidity If an ETP Holder fails to achieve a Liquidity Adding ADV of 50,000, such available publicly. All submissions adding and total average volume ETP Holder is not eligible to receive a should refer to File Number SR– thresholds in AutoEx; and (iii) eliminate liquidity adding Zero Display Order NASDAQ–2009–051 and should be the two lower tiers with respect to the rebate. The instant rule filing proposes submitted on or before July 6, 2009. AutoEx liquidity adding zero display to increase the Liquidity Adding ADV For the Commission, by the Division of order rebate. Trading and Markets, pursuant to delegated used with respect to eligibility to The text of the proposed rule change authority.8 receive a liquidity adding Zero Display is available on the Exchange’s Web site Florence E. Harmon, at http://www.nsx.com, at the principal 3 The Exchange’s two modes of order interaction Deputy Secretary. office of the Exchange, and at the are described in NSX Rule 11.13(b). [FR Doc. E9–13974 Filed 6–12–09; 8:45 am] Commission’s Public Reference Room. 4 Explanatory Endnote 3 of the Fee Schedule contains the definition of ‘‘Liquidity Adding ADV.’’ BILLING CODE 8010–01–P 5 ‘‘Zero Display Orders’’ means ‘‘Zero Display 1 15 U.S.C. 78s(b)(1). Reserve Orders’’ as specified in NSX Rule 8 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. 11.11(c)(2)(A).

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Order rebate in AutoEx from 50,000 to liquidity adding and sub-dollar orders thereunder, because, as provided in 5 million. in AutoEx, and are not discriminatory (f)(2), it changes ‘‘a due, fee or other Second, the instant rule change because ETP Holders are free to elect charge applicable only to a member’’ proposes to include securities less than whether or not to send such orders. (known on the Exchange as an ETP one dollar in the calculation of Based upon the information above, the Holder). At any time within sixty (60) Liquidity Adding ADV and Total ADV.6 Exchange believes that the proposed days of the filing of such proposed rule Prior to effectiveness of the instant rule rule change is consistent with the change, the Commission may summarily change, securities less than one dollar protection of investors and the public abrogate such rule change if it appears were excluded from such calculations interest. to the Commission that such action is except only with respect to the volume necessary or appropriate in the public Operative Date and Notice tier thresholds relative to the AutoEx interest, for the protection of investors, liquidity adding displayed order rebate The Exchange intends to utilize the or otherwise in furtherance of the for Tape A and C securities.7 The proposed volume thresholds effective purposes of the Act. instant rule change would include sub- June 1, 2009. Pursuant to Exchange Rule dollar securities in all calculations of 16.1(c), the Exchange will ‘‘provide ETP IV. Solicitation of Comments both Liquidity Adding ADV and Total Holders with notice of all relevant dues, Interested persons are invited to ADV. fees, assessments and charges of the submit written data, views, and Third, the two lower of the three tiers Exchange’’ through the issuance of a arguments concerning the foregoing, used to determine the amount, if any, of Regulatory Circular of the changes to the including whether the proposed rule an ETP Holder’s rebate for liquidity Fee Schedule and will post a copy of the change is consistent with the Act. adding Zero Display Orders in AutoEx rule filing on the Exchange’s Web site Comments may be submitted by any of would be eliminated under the (http://www.nsx.com). the following methods: proposed rule change. Under the Fee Statutory Basis Electronic Comments Schedule prior to effectiveness of the instant proposed rule change, The Exchange believes that the • Use the Commission’s Internet progressively higher rebates may be proposed rule change is consistent with comment form (http://www.sec.gov/ awarded where an ETP Holder achieves the provisions of Section 6(b) of the rules/sro.shtml); or 11 • Total ADV of 1 million,8 15 million 9 Act, in general, and Section 6(b)(4) of Send an e-mail to rule- and 30 million 10 shares. The instant the Act,12 in particular, in that it is [email protected]. Please include File rule change proposes to eliminate the 1 designed to provide for the equitable Number SR–NSX–2009–04 on the million and 15 million tiers (together allocation of reasonable dues, fees and subject line. with the associated lesser rebate other charges among its members and Paper Comments other persons using the facilities of the amounts of $0.0022 and $0.0023 per • share, respectively), such that the sole Exchange. Moreover, the proposed fee Send paper comments in triplicate remaining Total ADV tier would be 30 and rebate structure is not to Elizabeth M. Murphy, Secretary, million, for which the associated rebate discriminatory in that all ETP Holders Securities and Exchange Commission, would remain $0.0025 per share. are eligible to submit (or not submit) 100 F Street, NE., Washington, DC The proposed rule change would not liquidity adding and sub-dollar trades 20549–1090. modify other calculations of average and quotes, and may do so at their All submissions should refer to File daily volume, volume tiers, or discretion in the daily volumes they Number SR–NSX–2009–04. This file associated fees that are included in the choose during the course of the number should be included on the Fee Schedule. measurement period. subject line if e-mail is used. To help the Commission process and review your B. Self-Regulatory Organization’s Rationale comments more efficiently, please use Statement on Burden on Competition The Exchange has determined that only one method. The Commission will these changes are necessary to increase The Exchange does not believe that post all comments on the Commission’s the volume of liquidity adding and sub- the proposed rule change will impose Internet Web site (http://www.sec.gov/ dollar orders in AutoEx for the purpose any inappropriate burden on rules/sro.shtml). Copies of the of increasing the revenue of the competition. submission, all subsequent Exchange and adequately funding its C. Self-Regulatory Organization’s amendments, all written statements regulatory and general business Statement on Comments on the with respect to the proposed rule functions. The proposed modifications Proposed Rule Change Received From change that are filed with the are reasonable and equitably allocated Members, Participants, or Others Commission, and all written to those ETP Holders that opt to provide communications relating to the The Exchange has neither solicited proposed rule change between the 6 ‘‘Total ADV’’ is used to determine the amount, nor received written comments on the Commission and any person, other than if any, of an ETP Holder’s liquidity adding Zero proposed rule change. those that may be withheld from the Display Order rebate in AutoEx. See Explanatory Endnote 5 of the Fee Schedule. III. Date of Effectiveness of the public in accordance with the 7 See SR–NSX–2009–03 (filed My [sic] 15, 2009). Proposed Rule Change and Timing for provisions of 5 U.S.C. 552, will be 8 The first tier is $0.0022 per share (applicable to Commission Action available for inspection and copying in shares executed in AutoEx which added liquidity the Commission’s Public Reference as Zero Display Orders), where Total ADV is greater The proposed rule change has taken than or equal to 1 million and less than 15 million. effect upon filing pursuant to Section Room, 100 F Street, NE., Washington, 9 The second tier is $0.0023 per share (applicable 19(b)(3)(A)(ii) of the Act 13 and DC 20549, on official business days to shares executed in AutoEx which added liquidity subparagraph (f)(2) of Rule 19b–4 14 between the hours of 10 a.m. and 3 p.m. as Zero Display Orders), where Total ADV is greater Copies of the filing will also be available than or equal to 15 million and less than 30 million. 11 for inspection and copying at the 10 The third tier is $0.0025 per share (applicable 15 U.S.C. 78f(b). to shares executed in AutoEx which added liquidity 12 15 U.S.C. 78f(b)(4). principal office of the self-regulatory as Zero Display Orders), where Total ADV is greater 13 15 U.S.C. 78s(b)(3)(A)(ii). organization. All comments received than or equal to 30 million. 14 17 CFR 240.19b–4 [sic]. will be posted without change; the

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Commission does not edit personal principal office and at the Commission’s an away market center with an average identifying information from Public Reference Room. daily share volume per month greater submissions. You should submit only than 85 million shares and route an II. Self-Regulatory Organization’s information that you wish to make average daily share volume per month Statement of the Purpose of, and available publicly. All submissions greater than 2 million shares. The Statutory Basis for, the Proposed Rule should refer to File Number SR–NSX– Exchange proposes to eliminate the Change 2009–04 and should be submitted on or Take Tier. before July 6, 2009. In its filing with the Commission, the The proposed changes will become For the Commission, by the Division of self-regulatory organization included operative on June 1, 2009. statements concerning the purpose of, Trading and Markets, pursuant to delegated 2. Statutory Basis authority.15 and basis for, the proposed rule change Florence E. Harmon, and discussed any comments it received The Exchange believes that the Deputy Secretary. on the proposed rule change. The text proposed rule change is consistent with [FR Doc. E9–13973 Filed 6–12–09; 8:45 am] of those statements may be examined at the provisions of Section 6 of the the places specified in Item IV below. Securities Exchange Act of 1934 (the BILLING CODE 8010–01–P The Exchange has prepared summaries, ‘‘Act’’),6 in general, and Section 6(b)(4) set forth in sections A, B, and C below, of the Act,7 in particular, in that it is SECURITIES AND EXCHANGE of the most significant parts of such designed to provide for the equitable COMMISSION statements. allocation of reasonable dues, fees, and other charges among its members and A. Self-Regulatory Organization’s [Release No. 34–60067; File No. SR– other persons using its facilities. The Statement of the Purpose of, and NYSEArca–2009–48] proposed rates are part of the Statutory Basis for, the Proposed Rule Exchange’s continued effort to attract Self-Regulatory Organizations; NYSE Change Arca, Inc.; Notice of Filing and and enhance participation on the Immediate Effectiveness of Proposed 1. Purpose Exchange, by offering attractive rebates Rule Change Amending Its Schedule of The Exchange proposes to make for liquidity providers and volume- Fees and Charges for Exchange multiple changes to its Schedule that based incentives. The Exchange believes Services will take effect on June 1, 2009. A more that the proposed changes to the detailed description of the proposed Schedule are equitable in that they June 8, 2009. changes follows. apply uniformly to our Users. Pursuant to Section 19(b)(1) 1 of the Tier 1 Rates: B. Self-Regulatory Organization’s Securities Exchange Act of 1934 (the Currently, Tier 1 rates are applied to 2 3 Statement on Burden on Competition ‘‘Act’’) and Rule 19b–4 thereunder, customers with an average daily share notice is hereby given that, on May 29, volume per month greater than 90 The Exchange does not believe that 2009, NYSE Arca, Inc. (‘‘NYSE Arca’’ or million shares in Tape A, B and C the proposed rule change will impose the ‘‘Exchange’’) filed with the securities, including adding liquidity of any burden on competition that is not Securities and Exchange Commission more than 45 million shares. The necessary or appropriate in furtherance (the ‘‘Commission’’) the proposed rule Exchange proposes making Tier 1 rates of the purposes of the Act. change as described in Items I, II, and more attainable for customers by C. Self-Regulatory Organization’s III below, which Items have been lowering the adding liquidity Statement on Comments on the prepared by the self-regulatory component from 45 million shares to 30 Proposed Rule Change Received From organization. NYSE Arca filed the million shares. In Tape A and Tape C Members, Participants, or Others proposal pursuant to Section securities, the Exchange proposes a 4 No written comments were solicited 19(b)(3)(A) of the Act and Rule 19b– rebate of $0.0030 per share for orders 5 or received with respect to the proposed 4(f)(2) thereunder. The Commission is that add liquidity (previously $0.0029) rule change. publishing this notice to solicit and a take fee of $0.0030 per share for comments on the proposed rule change orders that remove liquidity (previously III. Date of Effectiveness of the from interested persons. $0.0028). Proposed Rule Change and Timing for I. Self-Regulatory Organization’s Tier 2 Rates: Commission Action Statement of the Terms of Substance of Tier 2 rates are applied to customers The foregoing proposed rule change is the Proposed Rule Change with an average daily share volume per effective upon filing pursuant to Section month greater than 60 million shares in The Exchange proposes to amend the 19(b)(3)(A) 8 of the Act and Tape A, B and C securities, including section of its Schedule of Fees and subparagraph (f)(2) of Rule 19b–4 9 adding liquidity of more than 30 million Charges for Exchange Services (the thereunder, because it establishes a due, shares. The Exchange proposes making ‘‘Schedule’’). While changes to the fee, or other charge imposed by NYSE Tier 2 rates more attainable for Schedule pursuant to this proposal will Arca. customers by lowering the adding be effective upon filing, the changes will At any time within 60 days of the liquidity component from 30 million become operative on June 1, 2009. A filing of the proposed rule change, the shares to 20 million shares. In Tape A copy of this filing is available on the Commission may summarily abrogate and Tape C securities, the Exchange Exchange’s Web site at http:// such rule change if it appears to the proposes a rebate of $0.0028 per share www.nyse.com, at the Exchange’s Commission that such action is for orders that add liquidity (previously necessary or appropriate in the public $0.0027) and a take fee of $0.0030 per 15 17 CFR 200.30–3(a)(12). interest, for the protection of investors, 1 15 U.S.C. 78s(b)(1). share for orders that remove liquidity 2 15 U.S.C. 78a. (previously $0.0029). 6 15 U.S.C. 78f(b). 3 17 CFR 240.19b–4. Take Tier: 7 15 U.S.C. 78f(b)(4). 4 15 U.S.C. 78s(b)(3)(A). The Take Tier rates are applied to 8 15 U.S.C. 78s(b)(3)(A). 5 17 CFR 240.19b–4(f)(2). customers that take liquidity or route to 9 17 CFR 240.19b–4(f)(2).

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or otherwise in furtherance of the For the Commission, by the Division of http://www.finra.org, at the principal purposes of the Act. Trading and Markets, pursuant to delegated office of FINRA and at the authority.10 Commission’s Public Reference Room. IV. Solicitation of Comments Florence E. Harmon, II. Self-Regulatory Organization’s Deputy Secretary. Interested persons are invited to Statement of the Purpose of, and submit written data, views, and [FR Doc. E9–13972 Filed 6–12–09; 8:45 am] Statutory Basis for, the Proposed Rule arguments concerning the foregoing, BILLING CODE 8010–01–P Change including whether the proposed rule In its filing with the Commission, change is consistent with the Act. SECURITIES AND EXCHANGE FINRA included statements concerning Comments may be submitted by any of COMMISSION the purpose of and basis for the the following methods: proposed rule change and discussed any [Release No. 34–60066; File No. SR–FINRA– Electronic Comments comments it received on the proposed 2009–036] rule change. The text of these statements • Use the Commission’s Internet Self-Regulatory Organizations; may be examined at the places specified comment form (http://www.sec.gov/ Financial Industry Regulatory in Item IV below. FINRA has prepared rules/sro.shtml); or Authority, Inc.; Notice of Filing of summaries, set forth in sections A, B, • Send an e-mail to rule- Proposed Rule Change To Adopt and C below, of the most significant [email protected]. Please include File FINRA Rules 2124 (Net Transactions aspects of such statements. Number SR–NYSEArca–2009–48 on the With Customers), 2220 (Options A. Self-Regulatory Organization’s subject line. Communications), 4370 (Business Statement of the Purpose of, and Continuity Plans and Emergency Statutory Basis for, the Proposed Rule Paper Comments Contact Information) and 5250 Change • (Payments for Market Making) in the Send paper comments in triplicate 1. Purpose to Elizabeth M. Murphy, Secretary, Consolidated FINRA Rulebook As part of the process of developing Securities and Exchange Commission, June 8, 2009. a new consolidated rulebook 100 F Street, NE., Washington, DC Pursuant to Section 19(b)(1) of the (‘‘Consolidated FINRA Rulebook’’),3 20549–1090. Securities Exchange Act of 1934 FINRA is proposing to adopt NASD All submissions should refer to File (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 Rules 2220 (Options Communications), Number SR–NYSEArca–2009–48. This notice is hereby given that on May 21, 2441 (Net Transactions with file number should be included on the 2009, Financial Industry Regulatory Customers), 2460 (Payments for Market subject line if e-mail is used. To help the Authority, Inc. (‘‘FINRA’’) (f/k/a Making), 3510 (Business Continuity Commission process and review your National Association of Securities Plans) and 3520 (Emergency Contact comments more efficiently, please use Dealers, Inc. (‘‘NASD’’)) filed with the Information) as FINRA rules in the only one method. The Commission will Securities and Exchange Commission consolidated FINRA rulebook without post all comments on the Commission’s (‘‘SEC’’ or ‘‘Commission’’) the proposed substantive change. rule change as described in Items I, II, Internet Web site (http://www.sec.gov/ Proposed FINRA Rule 2220 rules/sro.shtml). Copies of the and III below, which Items have been submission, all subsequent prepared by FINRA. The Commission is FINRA is proposing to adopt NASD amendments, all written statements publishing this notice to solicit Rule 2220 (Options Communications) with respect to the proposed rule comments on the proposed rule change without substantive change into the change that are filed with the from interested persons. Consolidated FINRA Rulebook as FINRA Rule 2220. NASD Rule 2220 sets Commission, and all written I. Self-Regulatory Organization’s communications relating to the forth a member’s obligations with Statement of the Terms of Substance of respect to its options communications proposed rule change between the the Proposed Rule Change Commission and any person, other than with the public. In 2008, FINRA revised FINRA is proposing to adopt NASD those that may be withheld from the NASD Rule 2220 to make it more Rules 2220 (Options Communications), public in accordance with the consistent with FINRA’s general rules 2441 (Net Transactions with provisions of 5 U.S.C. 552, will be on communications with the public and Customers), 2460 (Payments for Market available for inspection and copying in the options communications rules of Making), 3510 (Business Continuity the Commission’s Public Reference other self-regulatory organizations Plans) and 3520 (Emergency Contact 4 Room, 100 F Street, NE., Washington, (SROs). As amended, NASD Rule 2220, Information) as FINRA rules in the DC 20549, on official business days consolidated FINRA rulebook without 3 The current FINRA rulebook consists of (1) between the hours of 10 a.m. and 3 p.m. substantive change. The proposed rule FINRA Rules; (2) NASD Rules; and (3) rules Copies of the filing also will be available change would renumber NASD Rule incorporated from NYSE (‘‘Incorporated NYSE for inspection and copying at the Rules’’) (together, the NASD Rules and Incorporated 2220 as FINRA Rule 2220, NASD Rule principal office of the Exchange. All NYSE Rules are referred to as the ‘‘Transitional 2441 as FINRA Rule 2124, NASD Rule Rulebook’’). While the NASD Rules generally apply comments received will be posted 2460 as FINRA Rule 5250, and NASD to all FINRA members, the Incorporated NYSE without change; the Commission does Rules 3510 and 3520 would be Rules apply only to those members of FINRA that not edit personal identifying are also members of the NYSE (‘‘Dual Members’’). combined into FINRA Rule 4370 in the information from submissions. You The FINRA Rules apply to all FINRA members, consolidated FINRA rulebook. unless such rules have a more limited application should submit only information that The text of the proposed rule change by their terms. For more information about the you wish to make available publicly. All is available on FINRA’s Web site at rulebook consolidation process, see FINRA submissions should refer to File Information Notice, March 12, 2008 (Rulebook Number SR–NYSEArca–2009–48 and Consolidation Process). 10 17 CFR 200.30–3(a)(12). 4 See Securities Exchange Act Release No. 58738 should be submitted on or before July 6, 1 15 U.S.C. 78s(b)(1). (October 6, 2008), 73 FR 60371 (October 10, 2008) 2009. 2 17 CFR 240.19b–4. (Order Approving File No. SR–FINRA–2008–013).

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among other things: (1) Uses, to the not been subsequent amendments to the and maintain a written business extent appropriate, the same rule, and FINRA does not believe any continuity plan identifying procedures terminology and definitions as in substantive changes to this rule are relating to an emergency or significant FINRA’s general rules on necessary. Therefore, FINRA business disruption and enumerates the communications with the public; (2) recommends that NASD Rule 2441 be minimum elements that a member’s makes the requirements for principal transferred without substantive change business continuity plan must address, review of correspondence concerning into the Consolidated FINRA Rulebook to the extent those elements are options the same as for correspondence as FINRA Rule 2124. applicable and necessary to the generally; and (3) updates the standards member’s business. NASD Rule 3510 Proposed FINRA Rule 5250 on the content of communications that further requires members to update their precede the delivery of the options FINRA is proposing to adopt NASD business continuity plans upon any disclosure document (ODD). The Rule 2460 (Payment for Market Making) material change and, at a minimum, amended rule became effective on without substantive change into the conduct an annual review of their plans. March 4, 2009.5 Consolidated FINRA Rulebook as Each member also must disclose to its FINRA recommends that NASD Rule FINRA Rule 5250. NASD Rule 2460 customers how its business continuity 2220 be transferred as FINRA Rule 2220 prohibits any payments by an issuer or plan addresses the possibility of a future into the Consolidated FINRA Rulebook an issuer’s affiliates and promoters, significant business disruption and how without substantive change in light of directly or indirectly, to a member or the member plans to respond to events the recent amendments. person associated with a member for of varying scope. Each member must publishing a quotation, acting as a Proposed FINRA Rule 2124 make this disclosure, at a minimum, in market maker, or submitting an writing to customers at account FINRA is proposing to adopt NASD application in connection therewith. opening, by posting it on the member’s Rule 2441 (Net Transactions with The rule contains two exceptions that Web site (if the member maintains a Customers) without substantive change permit a member to accept (1) payment Web site), and by mailing it to into the Consolidated FINRA Rulebook for bona fide services, including, but not customers upon request. as FINRA Rule 2124. NASD Rule 2441 limited to, investment banking services NASD Rules 3510 is one part of the requires members to provide disclosure and (2) reimbursement for registration NASD Rule 3500 Series (Emergency and obtain consent when trading on a or listing fees. The SEC approved NASD Preparedness), which requires members ‘‘net’’ basis with customers.6 With Rule 2460 after notice and comment in to establish emergency preparedness respect to non-institutional customers, July 1997 with no subsequent plans and procedures. NASD Rule 3520, the member must obtain the customer’s amendments.8 which comprises the remainder of the written consent on an order-by-order FINRA believes no changes to this NASD Rule 3500 Series, requires basis prior to executing the transaction rule are appropriate or necessary. members to designate two emergency and such consent must evidence the FINRA continues to believe, as stated in contact persons and provide this customer’s understanding of the terms FINRA’s 1997 rule filing, that a market information to FINRA via electronic and conditions of the order. With maker should have considerable latitude process.9 respect to institutional customers, a and freedom to make or terminate FINRA recommends that NASD Rules member must obtain the customer’s market making activities in an issuer’s 3510 and 3520 be adopted as one rule, consent prior to executing the securities. The decision by a firm to FINRA Rule 4370, in the Consolidated transaction and such consent may be make a market in a given security and FINRA Rulebook without any obtained by either: (1) Use of a negative the question of price generally are substantive changes to the respective consent letter; (2) oral disclosure and dependent on a number of factors, rules’ provisions. consent on an order-by-order basis; or including, among others, supply and FINRA will announce the (3) written consent on an order-by-order demand, the firm’s expectations toward implementation date of the proposed basis. the market, its current inventory, and rule change in a Regulatory Notice to be Rule 2441 was approved by the SEC exposure to risk and competition. This published no later than 90 days in 2006, and was the product of notice decision should not be influenced by following Commission approval. and comment rulemaking.7 There have payments to the member from issuers or promoters. Therefore, FINRA proposes 2. Statutory Basis 5 See Regulatory Notice 08–73 (December 2008) to transfer NASD Rule 2460 without FINRA believes that the proposed rule (SEC Approves Amendments to NASD Rule 2220 to change is consistent with the provisions Update the Standards for Options substantive change into the 10 Communications). There is no longer a comparable Consolidated FINRA Rulebook as of Section 15A(b)(6) of the Act, which Incorporated NYSE Rule. FINRA previously deleted FINRA Rule 5250. requires, among other things, that substantially similar Incorporated NYSE Rule 791 FINRA rules must be designed to Proposed FINRA Rule 4370 (Communications to Customers) as part of a rule prevent fraudulent and manipulative change that, among other things, reduced regulatory duplication for Dual Members during the interim FINRA is proposing to adopt NASD acts and practices, to promote just and period before the completion of the Consolidated Rule 3510 (Business Continuity Plans) FINRA Rulebook. See Securities Exchange Act and NASD Rule 3520 (Emergency 9 There is no longer a comparable Incorporated Release No. 58533 (September 12, 2008), 73 FR Contact Information) without NYSE Rule to NASD Rules 3510 and 3520. FINRA 54652 (September 22, 2008) (Order Approving File substantive change into the previously deleted from the Transitional Rulebook No. SR–FINRA–2008–036). NYSE Rule 446 (Business Continuity and 6 A ‘‘net’’ transaction is a principal transaction in Consolidated FINRA Rulebook and Contingency Plans), which contained substantially which a market maker, after having received an combine the rules as FINRA Rule 4370 similar requirements as the two NASD rules, as part order to buy (sell) an equity security, purchases (Business Continuity Plans and of the rule change to reduce regulatory duplication (sells) the equity security at one price (from (to) Emergency Contact Information). NASD for Dual Members during the period before another broker-dealer or another customer) and completion of the Consolidated FINRA Rulebook. then sells to (buys from) the customer at a different Rule 3510 requires members to create See Securities Exchange Act Release No. 58533 price. (September 12, 2008), 73 FR 54652 (September 22, 7 See Securities Exchange Act Release No. 54088 8 See Securities Exchange Act Release No. 38812 2008) (Order Approving File No. SR–FINRA–2008– (June 30, 2006), 71 FR 38950 (July 10, 2006) (Order (July 3, 1997), 62 FR 37105 (July 10, 1997) (Order 036). Approving File No. SR–NASD–2004–135). Approving File No. SR–NASD–97–29). 10 15 U.S.C. 78o–3(b)(6).

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equitable principles of trade, and, in publishes its reasons for so finding or submissions should refer to File general, to protect investors and the (ii) as to which the self-regulatory Number SR–FINRA–2009–036 and public interest. FINRA believes that organization consents, the Commission should be submitted on or before July 6, transferring NASD Rule 2220 into the will: 2009. Consolidated Rulebook protects (A) by order approve such proposed For the Commission, by the Division of investors and the public interest by rule change, or Trading and Markets, pursuant to delegated providing the investing public with (B) institute proceedings to determine authority.11 options communications rules that are whether the proposed rule change Florence E. Harmon, should be disapproved. designed to provide appropriate Deputy Secretary. safeguards and greater clarity by IV. Solicitation of Comments [FR Doc. E9–13971 Filed 6–12–09; 8:45 am] promoting harmonization between FINRA’s and other SROs’ options Interested persons are invited to BILLING CODE 8010–01–P communications rules. FINRA believes submit written data, views and that transferring NASD Rule 2441 into arguments concerning the foregoing, including whether the proposed rule SECURITIES AND EXCHANGE the Consolidated FINRA Rulebook COMMISSION promotes investor protection by change is consistent with the Act. requiring members to provide disclosure Comments may be submitted by any of [Release No. 34–60065; File No. SR– and obtain customer consent when the following methods: NYSEArca–2009–47] trading on a net basis. In addition, Electronic Comments Self-Regulatory Organizations; NYSE FINRA believes that the benefits to • investors of requiring certain Use the Commission’s Internet Arca, Inc.; Notice of Filing and Order disclosures and obtaining customer comment form (http://www.sec.gov/ Granting Accelerated Approval of consent when trading on a net basis rules/sro.shtml); or Proposed Rule Change Relating to • Send an e-mail to rule- outweighs the additional Generic Listing Rules for Currency [email protected]. Please include File responsibilities placed on broker- Trust Shares Number SR–FINRA–2009–036 on the dealers. FINRA believes that transferring subject line. June 8, 2009. NASD Rule 2460 into the Consolidated Pursuant to Section 19(b)(1) of the FINRA Rulebook will protect investors Paper Comments Securities Exchange Act of 1934 and the public interest and avert a • Send paper comments in triplicate (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 potential conflict of interest by to Elizabeth M. Murphy, Secretary, notice is hereby given that, on May 28, prohibiting members from receiving Securities and Exchange Commission, 2009, NYSE Arca, Inc. (‘‘NYSE Arca’’ or compensation or other payments from 100 F Street, NE., Washington, DC ‘‘Exchange’’) filed with the Securities an issuer or others for listing, quoting or 20549–1090. and Exchange Commission making a market in an issuer’s All submissions should refer to File (‘‘Commission’’) the proposed rule securities. Finally, FINRA believes that Number SR–FINRA–2009–036. This file change as described in Items I and II transferring and combining NASD Rules number should be included on the below, which Items have been prepared 3510 and 3520 in the Consolidated subject line if e-mail is used. To help the by the Exchange. The Commission is FINRA Rulebook will help ensure that Commission process and review your publishing this notice to solicit members are prepared in the event of a comments more efficiently, please use comments on the proposed rule change significant business disruption. The only one method. The Commission will from interested persons and is proposed rule change makes non- post all comments on the Commission’s approving the proposed rule change on substantive changes to rules that have Internet Web site (http://www.sec.gov/ an accelerated basis.3 proven effective in meeting the statutory rules/sro.shtml). Copies of the mandates. submission, all subsequent I. Self-Regulatory Organization’s B. Self-Regulatory Organization’s amendments, all written statements Statement of the Terms of Substance of Statement on Burden on Competition with respect to the proposed rule the Proposed Rule Change FINRA does not believe that the change that are filed with the The Exchange, through its wholly proposed rule change will result in any Commission, and all written owned subsidiary NYSE Arca Equities, burden on competition that is not communications relating to the Inc. (‘‘NYSE Arca Equities’’ or the necessary or appropriate in furtherance proposed rule change between the ‘‘Corporation’’), proposes to amend its of the purposes of the Act. Commission and any person, other than rules governing NYSE Arca, LLC, which those that may be withheld from the is the equities trading facility of NYSE C. Self-Regulatory Organization’s public in accordance with the Arca. NYSE Arca is proposing to amend Statement on Comments on the provisions of 5 U.S.C. 552, will be NYSE Arca Equities Rule 8.202 Proposed Rule Change Received From available for inspection and copying in (Currency Trust Shares) to provide Members, Participants, or Others the Commission’s Public Reference generic listing and trading rules for such Written comments were neither Room, 100 F Street, NE., Washington, securities. The text of the proposed rule solicited nor received. DC 20549, on official business days change is available at the Exchange, the between the hours of 10 a.m. and 3 p.m. Commission’s Public Reference Room, III. Date of Effectiveness of the Copies of such filing also will be and http://www.nyse.com.4 Proposed Rule Change and Timing for available for inspection and copying at Commission Action the principal office of FINRA. All 11 17 CFR 200.30–3(a)(12). Within 35 days of the date of comments received will be posted 1 15 U.S.C. 78s(b)(1). publication of this notice in the Federal without change; the Commission does 2 17 CFR 240.19b–4. Register or within such longer period (i) not edit personal identifying 3 See infra notes 7 and 36 and accompanying text. 4 E-mail from Michael Cavalier, Chief Counsel, as the Commission may designate up to information from submissions. You NYSE Euronext, to Edward Cho, Special Counsel, 90 days of such date if it finds such should submit only information that Division of Trading and Markets, Commission, longer period to be appropriate and you wish to make available publicly. All dated June 4, 2009 (‘‘Exchange Confirmation’’).

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II. Self-Regulatory Organization’s surveillance program for the product general requirements of NYSE Arca Statement of the Purpose of, and class.10 Equities Rule 8.202, Currency Trust Statutory Basis for, the Proposed Rule The Exchange is proposing to adopt Shares listed on the Exchange must Change generic listing standards under satisfy the following initial listing amended Rule 8.202 for Currency Trust criteria. For a series of Currency Trust In its filing with the Commission, the 11 self-regulatory organization included Shares, pursuant to which it will be Shares listed on the Exchange, a statements concerning the purpose of, able to trade such securities without minimum of 100,000 shares of a series Commission approval of each and basis for, the proposed rule change of Currency Trust Shares is required to individual product pursuant to Section and discussed any comments it received be outstanding at commencement of 19(b)(2) of the Act.12 Instead, the 16 on the proposed rule change. The text trading. In addition, for both listed Exchange represents that any securities of those statements may be examined at Currency Trust Shares and those traded it lists and/or trades pursuant to NYSE the places specified in Item III below. pursuant to UTP: (1) The value of the Arca Equities Rule 8.202 will satisfy the The Exchange has prepared summaries, applicable non-U.S. currency must be standards set forth therein. The set forth in sections A, B, and C below, disseminated by one or more major Exchange states that within five (5) market data vendors on at least a 15- of the most significant parts of such business days after commencement of second delayed basis; (2) the Indicative statements. trading of a security pursuant to NYSE Trust Value must be calculated and A. Self-Regulatory Organization’s Arca Equities Rule 8.202, the Exchange widely disseminated by the Corporation Statement of the Purpose of, and will file a Form 19b-4(e).13 or one or more major market data Statutory Basis for, the Proposed Rule Currency Trust Shares vendors on at least a 15-second basis Change during the Core Trading Session as The Exchange proposes to amend the defined in NYSE Arca Equities Rule 1. Purpose definition of the term ‘‘Currency Trust 7.34; and (3) the Corporation will The Exchange currently has rules Shares’’ in NYSE Arca Equities Rule implement written surveillance permitting the listing and trading, 8.202(c) to provide that Currency Trust procedures applicable to Currency Trust including trading pursuant to unlisted Shares may be issued by a trust that Shares. trading privileges (‘‘UTP’’), of Currency holds more than one non-U.S. currency. Proposed Commentary .05 to NYSE Trust Shares (NYSE Arca Equities Rule In addition, NYSE Arca Equities Rule Arca Equities Rule 8.202 provides 8.202).5 The Exchange proposes to 8.202(c) would be amended to provide certain ‘‘firewall’’ requirements where amend NYSE Arca Equities Rule 8.202 that Currency Trust Shares may be the value of a Currency Trust Share is to include provisions for the listing and surrendered to the Trust by an based in whole or in part on an index trading (including trading pursuant to Authorized Participant (as defined in that is maintained by a broker-dealer, as UTP) of Currency Trust Shares pursuant the Trust’s prospectus), and the Trust well as requirements on any advisory to Rule 19b–4(e) 6 under the Act.7 will deliver to the redeeming committee, supervisory board or similar Authorized Participant the specified entity that advises or that makes certain Generic Listing Standards non-U.S. currency or currencies.14 The decisions regarding the index, similar to Rule 19b-4(e) under the Act provides reference to surrender of Currency Trust the requirements currently specified in that the listing and trading of a new Shares by the beneficial owner would be NYSE Arca Equities Rule 5.2(j)(3), derivative securities product by a self- deleted. NYSE Arca Equities Rule Commentary .01(b)(1). regulatory organization (‘‘SRO’’) shall 8.202(d) relating to designation of a non- Commentary .06 provides that not be deemed a proposed rule change, U.S. currency would be amended to Currency Trust Shares will be subject to pursuant to Section (c)(1) of Rule 19b- clarify the rule’s application to an issue the Exchange’s equity trading rules. 4,8 if the Commission has approved, of Currency Trust Shares that holds Commentary .07 provides that, if the pursuant to Section 19(b) of the Act,9 more than one currency. Commentary the SRO’s trading rules, procedures, and .01 also would be amended to clarify (SR–NYSE–2006–35) (order granting accelerated listing standards for the product class that Currency Trust Shares are Trust approval for NYSE to list and trade shares of the Issued Receipts that can hold multiple CurrencyShares Australian Dollar Trust, that would include the new derivatives CurrencyShares British Pound Sterling Trust, securities product, and the SRO has a currencies. CurrencyShares Canadian Dollar Trust, The Exchange proposes to amend CurrencyShares Mexican Peso Trust, 5 See Securities Exchange Act Release No. 53253 Commentary .04 to NYSE Arca Equities CurrencyShares Swedish Krona Trust and (February 8, 2006), 71 FR 8029 (February 15, 2006) Rule 8.202 to incorporate generic listing CurrencyShares Swiss Franc Trust); Securities (SR–PCX–2005–123) (order approving Rule 8.202 Exchange Act Release No. 55268 (February 9, 2007), and trading standards for Currency 72 FR 7793 (February 20, 2007) (SR–NYSE–2007– and trading on the Exchange pursuant to UTP of 15 shares of the Euro Currency Trust). Trust Shares. In addition to the 03) (order granting accelerated approval for NYSE to list and trade shares of the CurrencyShares 6 17 CFR 240.19b–4(e). 10 Japanese Yen Trust); and Securities Exchange Act 7 See Securities Exchange Act Release No. 40761 The Exchange previously filed a proposed rule Release No. 56131 (July 25, 2007), 72 FR 42212 change to permit listing pursuant to Rule 19b–4(e) (December 8, 1998), 63 FR 70952 (December 22, 1998) (File No. S7–13–98). (August 1, 2007) (SR–NYSEArca-2007–57) (order of Commodity-Based Trust Shares, Currency Trust granting accelerated approval for listing on NYSE 11 See Exchange Confirmation, supra note 4 Shares, and Commodity Index Trust Shares. See Arca of CurrencyShares Trusts). (replacing the term ‘‘Shares’’ with ‘‘Currency Trust Securities Exchange Act Release No. 58332 (August 16 Shares’’ where applicable). The Exchange notes that the proposed 100,000 8, 2008), 73 FR 47996 (August 15, 2008) (SR– share minimum is the same as the requirement in 12 15 U.S.C. 78s(b)(2). NYSEArca–2008–51) (Notice of Filing of Proposed NYSE Arca Equities Rule 5.2(j)(3)(d) applicable to 13 Rule Change and Amendment No. 1 Thereto To 17 CFR 240.19b-4(e)(2)(ii); 17 CFR 249.820. Investment Company Units (‘‘Units’’), which Adopt Generic Listing and Trading Rules for 14 See Exchange Confirmation, supra note 4. provides that a minimum of 100,000 shares of a Commodity-Based Trust Shares, Currency Trust 15 The Commission has previously approved a series of Units is required to be outstanding at Shares, and Commodity Index Trust Shares). The number of issues of Currency Trust Shares for commencement of trading. In addition, the 100,000 Exchange withdrew NYSEArca–2008–51 on May exchange listing and trading. See, e.g., Securities share minimum is comparable to requirements 18, 2009. The amendments to NYSE Arca Equities Exchange Act Release No. 52843 (November 28, previously applied to series of Units approved by Rule 8.202 proposed herein are substantially 2005), 70 FR 72486 (December 5, 2005) (SR–NYSE the Commission for exchange listing pursuant to identical to changes to NYSE Arca Equities Rule 2005–65) (order granting accelerated approval for Section 19(b)(2) of the Act. See, e.g., Securities 8.202 proposed in SR–NYSEArca–2008–51. NYSE to list and trade shares of the CurrencyShares Exchange Act Release No. 52816 (November 21, 8 17 CFR 240.19b-4(c)(1). Euro Trust); Securities Exchange Act Release No. 2005), 70 FR 71574, 71578 n.19 and accompanying 9 17 U.S.C. 78s(b). 54020 (June 20, 2006), 71 FR 36579 (June 27, 2006) text (November 29, 2005) (SR–NYSE–2005–70).

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Indicative Trust Value, or the value of The Exchange’s current trading receive a prospectus. ETP Holders the currency, currencies or currency surveillance focuses on detecting when purchasing Currency Trust Shares from index applicable to a series of Currency securities trade outside their normal the trust for resale to investors will Trust Shares is not being disseminated patterns. When such situations are deliver a prospectus to such investors. as required, the Exchange may halt detected, surveillance analysis follows In addition, the Information Bulletin and investigations are opened, where trading during the day on which such will reference that an issue of Currency interruption first occurs. If such appropriate, to review the behavior of Trust Shares is subject to various fees interruption persists past the trading all relevant parties for all relevant and expenses described in the day in which it occurred, the Exchange trading violations. applicable prospectus. The Information will halt trading no later than the The components underlying Currency Bulletin will also reference the fact that beginning of the trading day following Trust Shares are based on spot prices of the interruption. If the Exchange the relevant currency, and such there is no regulated source of last sale becomes aware that the net asset value underlying currencies are traded in information regarding non-U.S. applicable to a series of Currency Trust over-the-counter markets rather than on currencies, and that the Commission has Shares is not being disseminated to all exchanges. no jurisdiction over the trading of market participants at the same time, it The Exchange may obtain information currencies or futures contracts on which will halt trading in such series until via the Intermarket Surveillance Group the value of an issue of Currency Trust such time as the net asset value is (‘‘ISG’’) from other exchanges who are Shares may be based. 19 available to all market participants. members of the ISG. 2. Statutory Basis Proposed NYSE Arca Equities Rule In addition, the Exchange also has a 8.202(j) provides that the Exchange may general policy prohibiting the The proposed rule change is submit a rule filing pursuant to Section distribution of material, non-public consistent with Section 6(b) 20 of the Act 19(b)(2) of the Act 17 to permit the information by its employees. in general and furthers the objectives of listing and trading of Currency Trust Information Bulletin Section 6(b)(5) 21 in particular in that it Shares that do not otherwise meet the is designed to prevent fraudulent and Prior to the commencement of standards set forth in proposed trading, the Exchange will inform its manipulative acts and practices, to Commentary .04 to NYSE Arca Equities ETP Holders in an Information Bulletin promote just and equitable principles of Rule 8.202. of the special characteristics and risks trade, to foster cooperation and Exchange Rules Applicable to Currency associated with trading an issue of coordination with persons engaged in Trust Shares Currency Trust Shares, including risks regulating, clearing, settling, processing inherent with trading such securities information with respect to, and Currency Trust Shares will be subject facilitating transaction in securities, to all Exchange rules governing the during the Opening and Late Trading Sessions and suitability and, in general, to protect investors and trading of equity securities. The the public interest. The Exchange Exchange’s equity margin rules will recommendation requirements. Specifically, the Information Bulletin believes that the proposed rules apply to transactions in Currency Trust will discuss the following: (1) The applicable to trading pursuant to generic Shares. Currency Trust Shares will trade procedures for purchases and listing and trading criteria, together with during trading hours set forth in Rule redemptions of Currency Trust Shares; the Exchange’s surveillance procedures 7.34(a).18 (2) NYSE Arca Equities Rule 9.2(a), applicable to trading in the securities Surveillance which imposes a duty of due diligence covered by the proposed rules serve to on ETP Holders to learn the essential foster investor protection. The proposed The Exchange intends to utilize its facts relating to every customer prior to rules will also enhance market existing surveillance procedures trading an issue of Currency Trust competition by assisting in bringing applicable to derivative products, Shares; (3) how information regarding Currency Trust Shares to market more including Currency Trust Shares, to the Indicative Trust Value is monitor trading in the securities. The quickly, consistent with the disseminated; (4) the risks involved in Exchange represents that these Commission’s adoption of Rule 19b– trading an issue of Currency Trust 22 procedures are adequate to properly 4(e) under the Act. Shares during the Opening and Late monitor Exchange trading of the Trading Sessions when an updated B. Self-Regulatory Organization’s securities in all trading sessions and to Indicative Trust Value will not be Statement on Burden on Competition deter and detect violations of Exchange calculated or publicly disseminated; (5) rules or applicable Federal securities The Exchange does not believe that the requirement that ETP Holders laws. the proposed rule change will impose deliver a prospectus to investors any burden on competition that is not purchasing newly issued Currency Trust 17 necessary or appropriate in furtherance 17 U.S.C. 78s(b)(2). Shares prior to or concurrently with the 18 Pursuant to NYSE Arca Rule 7.34(a), the NYSE of the purposes of the Act. Arca Marketplace will have three trading sessions confirmation of a transaction; and (6) each day the Corporation is open for business trading information. For example, the C. Self-Regulatory Organization’s unless otherwise determined by the Corporation: Information Bulletin will advise ETP Statement on Comments on the Opening Session—begins at 1:00:00 a.m. (Pacific Holders, prior to the commencement of Proposed Rule Change Received From Time) and concludes at the commencement of the Core Trading Session. The Opening Auction and trading, of the prospectus delivery Members, Participants or Others the Market Order Auction shall occur during the requirements applicable to the relevant Opening Session. issue of Currency Trust Shares. The No written comments were solicited Core Trading Session—begins for each security at Exchange notes that investors or received with respect to the proposed 6:30:00 a.m. (Pacific Time) or at the conclusion of purchasing Currency Trust Shares rule change. the Market Order Auction, whichever comes later, and concludes at 1:00:00 p.m. (Pacific Time). directly from the applicable trust will Late Trading Session—begins following the 20 15 U.S.C. 78f(b). conclusion of the Core Trading Session and 19 For a list of current members of the ISG, see 21 15 U.S.C. 78f(b)(5). concludes at 5:00:00 p.m. (Pacific Time). http://www.isgportal.org. 22 17 CFR 240.19b–4(e).

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III. Solicitation of Comments rule change is consistent with the notes that it has approved multiple Interested persons are invited to requirements of the Act and the rules series of Currency Trust Shares for 28 submit written data, views, and and regulations thereunder applicable to listing and trading on the Exchange. In 23 arguments concerning the foregoing, a national securities exchange. In approving these securities for Exchange including whether the proposed rule particular, the Commission finds that trading, the Commission considered the change is consistent with the Act. the proposed rule change is consistent applicable Exchange rules that govern Comments may be submitted by any of with the requirements of Section 6(b)(5) their trading. The Commission believes 24 the following methods: of the Act, which requires, among that proposed generic listing standards other things, that the Exchange’s rules for Currency Trust Shares should fulfill Electronic Comments be designed to promote just and the intended objective of Rule 19b–4(e) • Use the Commission’s Internet equitable principles of trade, to foster and allow securities that satisfy the comment form (http://www.sec.gov/ cooperation and coordination with proposed generic listing standards to rules/sro.shtml); or persons engaged in regulating, clearing, commence trading without the need for • Send an e-mail to rule- settling, processing information with public comment and Commission [email protected]. Please include File respect to, and facilitating transactions approval.29 The Exchange’s ability to Number SR–NYSEArca–2009–47 on the in securities, to remove impediments to rely on Rule 19b–4(e) to list and trade subject line. and perfect the mechanism of a free and Currency Trust Shares that meet the open market and national market applicable requirements and minimum Paper Comments system, and, in general, to protect standards should reduce the time frame • Send paper comments in triplicate investors and the public interest. for bringing these securities to market to Elizabeth M. Murphy, Secretary, and thereby reduce the burdens on A. Generic Listing Standards for Securities and Exchange Commission, issuers and other market participants, Currency Trust Shares 100 F Street, NE., Washington, DC while also promoting competition and 20549–1090. To list and trade Currency Trust making such securities available to All submissions should refer to File Shares, the Exchange currently must file investors more quickly. Number SR–NYSEArca-2009–47. This a proposed rule change with the Commission pursuant to Section B. Listing and Trading Currency Trust file number should be included on the Shares subject line if e-mail is used. To help the 19(b)(1) of the Act 25 and Rule 19b–4 Commission process and review your thereunder.26 Rule 19b–4(e) provides Taken together, the Commission finds comments more efficiently, please use that the listing and trading of a new that the proposal contains adequate only one method. The Commission will derivative securities product by an SRO rules and procedures to govern the post all comments on the Commission’s will not be deemed a proposed rule listing and trading of Currency Trust Internet Web site (http://www.sec.gov/ change pursuant to Rule 19b–4(c)(1) if Shares pursuant to Rule 19b–4(e) on the rules/sro.shtml). Copies of the the Commission has approved, pursuant Exchange. Products listed and traded submission, all subsequent to Section 19(b) of the Act, the SRO’s under the proposed generic standards amendments, all written statements trading rules, procedures, and listing will be subject to the full panoply of with respect to the proposed rule standards for the product class that NYSE Arca Equities rules and change that are filed with the would include the new derivative procedures, including the equity rules Commission, and all written securities product, and the SRO has a relating to margin, that currently govern communications relating to the surveillance program for the product the trading of equity securities on the proposed rule change between the class. The Exchange proposes to adopt Exchange. Commission and any person, other than certain provisions that would permit it those that may be withheld from the to list and trade Currency Trust Shares 2001–14) (approving, among other things, generic pursuant to Rule 19b–4(e). listing standards for Units); 55621 (April 12, 2007), public in accordance with the 72 FR 19571 (April 18, 2007) (SR–NYSEArca-2006– provisions of 5 U.S.C. 552, will be The Commission notes that it has 86) (approving, among other things, generic listing available for inspection and copying in previously approved the adoption of standards for Units based on foreign equity the Commission’s Public Reference generic listing standards for various securities); 55783 (May 17, 2007), 72 FR 29194 Room, 100 F Street, NE., Washington, classes of new derivative securities (May 24, 2007) (SR–NYSEArca-2007–36) (approving generic listing standards for Units based on fixed DC 20549, on official business days products, including currency-related income indexes); 52204 (August 3, 2005), 70 FR between the hours of 10 a.m. and 3 p.m. derivative securities products, to be 46559 (August 10, 2005) (SR–PCX–2005–63) Copies of the filing also will be available listed and traded pursuant to Rule 19b– (approving generic listing standards for Index- for inspection and copying at the 4(e).27 In addition, the Commission Linked Securities); and 57701 (April 23, 2008), 73 FR 23281 (April 29, 2008) (SR–NYSEArca-2008–20) principal office of the Exchange. All (approving generic listing rules for Fixed Income comments received will be posted 23 In approving the proposed rule change, the Index-Linked Securities, Futures-Linked Securities, without change; the Commission does Commission notes that it has considered the and Multifactor Index-Linked Securities). proposed rule’s impact on efficiency, competition, not edit personal identifying 28 See supra note 15 (indicating prior and capital formation. See 15 U.S.C. 78c(f). Commission orders approving the listing and information from submissions. You 24 15 U.S.C. 78f(b)(5). trading of Currency Trust Shares). should submit only information that 25 15 U.S.C. 78s(b)(1). 29 The Commission notes that the failure of a you wish to make available publicly. All 26 17 CFR 240.19b–4. See Commentary .04 to particular product or index to comply with the submissions should refer to File NYSE Arca Equities Rule 8.202 (providing that proposed generic listing standards under Rule 19b– Number SR–NYSEArca–2009–47 and NYSE Arca Equities must file separate proposals 4(e), however, would not preclude the Exchange under Section 19(b) of the Act before trading, either from submitting a separate filing pursuant to should be submitted on or before July 6, by listing or pursuant to unlisted trading privileges, Section 19(b)(1) of the Act, requesting Commission 2009. Currency Trust Shares). approval to list and trade a particular series of 27 See, e.g., Securities Exchange Act Release No. Currency Trust Shares. See proposed NYSE Arca IV. Commissions Findings and Order 56637 (October 10, 2007), 72 FR 58704 (October 16, Equities Rule 8.202(j) (providing that NYSE Arca Granting Accelerated Approval of the 2007) (SR–NYSEArca-2007–92) (approving, among Equities may submit a proposed rule change Proposed Rule Change other things, generic listing and trading rules for pursuant to Section 19(b) of the Act to permit the Currency-Linked Securities). See also, e.g., listing and trading of Currency Trust Shares that do After careful consideration, the Securities Exchange Act Release Nos. 44551 (July not otherwise meet the generic listing standards set Commission finds that the proposed 12, 2001), 66 FR 37716 (July 19, 2001) (SR–PCX– forth in the relevant rules).

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Each of the proposed modifications to disseminated to all market participants non-public information by its the listing requirements under NYSE at the same time, it will halt trading in employees. Arca Equities Rule 8.202 provide the such series until such time as the net C. Surveillance following: asset value is available to all market • For the Exchange to approve each participants. Proposed Commentary .04(d) to NYSE applicable issue for listing, each such In addition, the Commission notes that Arca Equities Rule 8.202 provides that issue must satisfy all of the criteria set the proposed ‘‘firewall’’ provisions in NYSE Arca Equities will implement forth in the relevant rule,30 and, for Commentary .05 to NYSE Arca Equities written surveillance procedures those issues approved for trading Rules 8.202 are virtually identical to the applicable to Currency Trust Shares. pursuant to UTP, each such issue must ‘‘firewall’’ restrictions applicable to all The Commission notes that Currency satisfy the requirements relating to the types of Index-Linked Securities, Trust Shares would be subject to the dissemination of the underlying asset including Currency-Linked Securities.32 Exchange’s existing surveillance and/or index values and the Indicative To clarify the definition of Currency procedures applicable to derivative Trust Values and the implementation of Trust Shares under NYSE Arca Equities products, including Currency Trust written surveillance procedures Rule 8.202(c), with respect to the Shares. The Exchange has represented applicable to Currency Trust Shares; procedures for surrendering or that its surveillance procedures are • The Exchange may submit a redeeming Currency Trust Shares, the adequate to properly monitor the proposed rule change to permit the proposal provides that such Currency trading of Currency Trust Shares in all listing and trading of Currency Trust Trust Shares may be surrendered or trading sessions and to deter and detect Shares that do not otherwise meet the redeemed, when aggregated in some violations of Exchange rules or proposed generic listing standards set specified minimum number, to the trust applicable federal securities laws. forth in Commentary .04 to NYSE Arca only by, or at the request of, an The Exchange states that, with respect Rule 8.202; 31 Authorized Participant, as such term is to Currency Trust Shares based on spot • A minimum of 100,000 Currency defined in the relevant trust prospectus. prices of a currency or currencies, such Trust Shares is required to be The proposal also seeks to modify the underlying currencies are traded in OTC outstanding at the commencement of definition of Currency Trust Shares and markets rather than on exchanges. The trading; other provisions under NYSE Arca Commission notes that information • The values of the underlying non- Equities Rule 8.202 such that the relating the trading of such assets in the U.S. currency, currencies, or currency underlying asset thereof may be OTC markets may not be readily index, as the case may be, must be represented by more than one non-U.S. available. disseminated by one or more major currency deposited with the trust. D. Information Bulletin market data vendors on at least a 15- The Commission believes that the The Exchange has represented that, second delayed basis; proposal is designed to maintain fair • The Indicative Trust Value must be and orderly markets for the listing and prior to the commencement of trading in calculated and widely disseminated by trading of Currency Trust Shares. The Currency Shares, it will inform its ETP NYSE Arca Equities or one or more proposed generic listing standards seek Holders in an Information Bulletin major market data vendors on at least a to ensure a minimum level of describing the special characteristics 15-second basis during the Core Trading transparency with respect key values of and risks associated with trading an Session; the underlying currency assets, establish issue of Currency Trust Shares. • The Exchange must implement events that would trigger a trading halt Specifically, the Information Bulletin written surveillance procedures in Currency Trust Shares when the will discuss the following: (1) The applicable to Currency Trust Shares; availability of such key information procedures for purchases and and related to Currency Trust Shares redemptions of Currency Trust Shares; • Currency Trust Shares will be becomes impaired, and prevent conflicts (2) suitability requirements; (3) how subject to the Exchange’s equity trading of interest and the use and information regarding the Indicative rules; and dissemination of material, non-public Trust Value is disseminated; (4) the • If the Indicative Trust Value or the information with respect to the risks involved in trading an issue of values of the underlying non-U.S. personnel responsible for the Currency Trust Shares during the currency, currencies, or currency index, maintenance of an underlying index Opening and Late Trading Sessions as the case may be, is not being maintained by a broker-dealer. The when an updated Indicative Trust Value disseminated as required, the Exchange Commission notes that all of the will not be calculated or publicly may halt trading during the day on existing continued listing standards disseminated; (5) the requirement that which such interruption first occurs. If applicable to Currency Trust Shares, ETP Holders deliver a prospectus to such interruption persists past the requirements relating to information investors purchasing newly issued trading day in which it occurred, the barriers and accounts with respect to Currency Trust Shares prior to or Exchange will halt trading no later than ETP Holders acting as registered Market concurrently with the confirmation of a the beginning of the trading day Makers or Market Maker Authorized transaction; and (6) trading information. following the interruption. In addition, Traders in Currency Trust Shares, and The Information Bulletin will also if the Exchange becomes aware that the prospectus delivery requirements advise ETP Holders, prior to the net asset value applicable to a series of continue to apply to Currency Trust commencement of trading, of the Currency Trust Shares is not being Shares. The Commission further notes prospectus delivery requirements that the Exchange has a general policy applicable to the relevant issue of 30 The Commission notes that each issue of prohibiting the distribution of material, Currency Trust Shares. The Exchange Currency Trust Shares to be traded on the notes that investors purchasing Exchange, whether by listing or pursuant to UTP, 32 See NYSE Arca Equities Rule 5.2(j)(6)(C) Currency Trust Shares directly from the must satisfy not only those requirements proposed (setting forth similar firewall restrictions with applicable trust will receive a to be adopted herein, but also all of the other respect to all types of Index-Linked Securities); see prospectus; ETP Holders purchasing existing applicable requirements in the respective also Commentary .01(b)(1) to NYSE Arca Equities rules for Currency Trust Shares. Rule 5.2(j)(3) (setting forth similar firewall Currency Trust Shares from the trust for 31 See supra note 29. restrictions with respect to Units). resale to investors will deliver a

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prospectus to such investors. Finally, rule change (NYSEArca–2008–51) Arca Equities, Inc. (‘‘NYSE Arca the Information Bulletin will reference seeking to adopt generic listing Equities’’ or ‘‘Corporation’’), filed with that: An issue of Currency Trust Shares standards for Currency Trust Shares and the Securities and Exchange is subject to various fees and expenses other commodity-related derivative Commission (‘‘Commission’’), pursuant described in the applicable prospectus; securities products.35 Notice of the to Section 19(b)(1) of the Securities that there is no regulated source of last- proposed rule change was published in Exchange Act of 1934 (‘‘Act’’) 1 and Rule sale information regarding non-U.S. the Federal Register on August 15, 2008 19b\4 thereunder,2 a proposed rule currencies; and the Commission has no for a 21-day comment period, and no change to: (1) Adopt listing standards jurisdiction over the trading of physical comments were received by the for Managed Trust Securities; (2) amend currencies on which the value of an Commission.36 The Commission further NYSE Arca Equities Rule 7.34 and its issue of Currency Trust Shares may be notes that the proposed changes to Listing Fees to add references to based. NYSE Arca Equities Rule 8.202 in proposed NYSE Arca Equities Rule 8.700 relating to Managed Trust E. Firewall Procedures NYSEArca–2008–51 are substantively identical to this proposed rule change. Securities; and (3) list and trade shares Currency Trust Shares, which are The Commission believes that the (‘‘Shares’’) of the iShares® Diversified securities issued by a trust that may Exchange’s proposed amendments to Alternatives Trust (‘‘Trust’’). On April hold multiple currencies, will be subject NYSE Arca Equities Rule 8.202 do not 24, 2009, the Exchange filed to the firewall requirements under raise any new issues or significant Amendment No. 1 to the proposed rule proposed Commentary .05 to NYSE regulatory concerns. The Commission change. The proposed rule change, as Arca Equities Rule 8.202. The firewall believes that accelerating approval of amended, was published for comment requirements provide that, if the value this proposal should benefit investors in the Federal Register on May 6, 2009.3 of a Currency Trust Share is based in by creating, without undue delay, The Commission received no comments whole or in part on an index that is enhanced competition in the market for on the proposal. This order approves the maintained by a broker-dealer, the Currency Trust Shares, consistent with proposed rule change, as amended. broker-dealer shall erect a ‘‘firewall’’ Section 6(b) of the Act and Rule 19b– II. Description of the Proposal around the personnel responsible for the 4(e) thereunder. maintenance of the underlying index or A. Listing Standards for Managed Trust who have access to information V. Conclusion Securities concerning changes and adjustments to It is therefore ordered, pursuant to The Exchange proposes to adopt new the index, and the index shall be Section 19(b)(2) of the Act,37 that the NYSE Arca Equities Rule 8.700 to list calculated by a third party who is not proposed rule change (SR–NYSEArca– and trade, or trade pursuant to unlisted a broker-dealer. Furthermore, any 2009–47) be, and it hereby is, approved trading privileges, Managed Trust advisory committee, supervisory board, on an accelerated basis. Securities. A Managed Trust Security as or similar entity that advises an index a security that is registered under the licensor or administrator or that makes For the Commission, by the Division of Trading and Markets, pursuant to delegated Securities Act of 1933, as amended, and decisions regarding the index or authority.38 (a) is issued by a trust that (i) is a portfolio composition, methodology, Florence E. Harmon, commodity pool, as defined in the and related matters must implement and Commodity Exchange Act (‘‘CEA’’) and maintain, or be subject to, procedures Deputy Secretary. [FR Doc. E9–13970 Filed 6–12–09; 8:45 am] regulations thereunder, and is managed designed to prevent the use and by a commodity pool operator registered BILLING CODE 8010–01–P dissemination of material, non-public with the Commodity Futures Trading information regarding the applicable Commission (‘‘CFTC’’), and (ii) holds index or portfolio. long and/or short positions in exchange- The Commission believes that the SECURITIES AND EXCHANGE COMMISSION traded futures contracts and/or currency proposed ‘‘firewall’’ restrictions forward contracts selected by the trust’s applicable to Currency Trust Shares are [Release No. 34–60064; File No. SR– advisor consistent with the trust’s designed to prevent the use and NYSEArca–2009–30] investment objectives,4 which would dissemination of material, non-public only include exchange-traded futures information regarding an underlying Self-Regulatory Organizations; NYSE contracts involving commodities, index and prevent conflicts of interest Arca, Inc.; Order Granting Approval of currencies, stock indices, fixed income with respect to personnel of a broker- Proposed Rule Change, as Modified by indices, interest rates and sovereign, dealer maintaining an index underlying Amendment No. 1 Thereto, Relating to private, and mortgage or asset backed such securities. The Commission notes the Adoption of Listing Standards for debt instruments 5 and/or forward that such proposed restrictions are Managed Trust Securities and the contracts on specified currencies, as substantially similar to restrictions Listing and Trading of Shares of the disclosed in the trust’s prospectus, as adopted for the listing and trading of iShares® Diversified Alternatives Trust 33 Index-Linked Securities and Units. 1 June 8, 2009. 15 U.S.C. 78s(b)(1). 2 F. Accelerated Approval 17 CFR 240.19b–4. I. Introduction 3 See Securities Exchange Act Release No. 59835 The Commission finds good cause, (April 28, 2009), 74 FR 21041 (‘‘Notice’’). pursuant to Section 19(b)(2) of the On April 9, 2009, NYSE Arca, Inc. 4 It should be noted that the trust holdings will Act,34 for approving the proposed rule (‘‘NYSE Arca’’ or ‘‘Exchange’’), through be actively managed in accordance with the trust’s its wholly owned subsidiary, NYSE investment objectives; therefore, products listed change prior to the 30th day after under proposed NYSE Arca Equities Rule 8.700 are publication of notice in the Federal ineligible for listing under any other existing 35 Register. The Commission notes that the See supra note 7. Exchange rule (e.g., NYSE Arca Equities Rules 8.203 36 See id. (noting that the Exchange subsequently Exchange previously filed a proposed and 8.204). withdrew the proposed rule change on May 18, 5 The trust may only hold exchange-traded 2009). futures contracts on sovereign, private, and 33 See id. and accompanying text. 37 15 U.S.C. 78s(b)(2). mortgage- or asset-backed debt and not the debt 34 15 U.S.C. 78s(b)(2). 38 17 CFR 200.30–3(a)(12). itself.

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such may be amended from time to reduce the risks and volatility inherent the proposed initial and continued time, and (b) is issued and redeemed in those investments by taking long and listing criteria and Commentaries under continuously in specified aggregate short positions in historically correlated new NYSE Arca Equities Rule 8.700 are amounts at the next applicable net asset assets. The Trust will also earn interest substantively identical to those value (‘‘NAV’’). on the assets used to collateralize its applicable to Managed Fund Shares set Additional details of proposed NYSE trading positions. The return on assets forth in NYSE Arca Equities Rule 8.600. Arca Equities Rule 8.700 and the in the portfolio, if any, is not intended Specifically with respect to the proposed conforming changes to NYSE to track the performance of any index or proposed continued listing criteria for Arca Equities Rule 7.34 and the NYSE benchmark. Managed Trust Securities, the Arca Equities Listing Fee Schedule can Additional details regarding creations Commission notes that new NYSE Arca be found in the Notice. and redemptions of the Shares, the Equities Rule 8.700(e)(2)(C)(i) is B. Description of the Trust and the organization and structure of the Trust, substantively identical to the continued Shares the commodity trading advisor of the listing criteria applicable to other types Trust, the dissemination and availability of commodity- and currency-based The Exchange also proposes to list of information about the underlying derivative securities products.12 The 6 and trade the Shares. The Shares assets, trading halts, applicable trading Commission also notes that proposed represent ownership of a fractional rules, surveillance, and the Information NYSE Arca Equities Rules undivided beneficial interest in the net Bulletin can be found in the Notice and/ 8.700(e)(2)(E), 8.700(e)(3)–(5), and assets of the Trust. The Trust will be a or the Registration Statement. 8.700(f)–(g), relating to the trust, trustee, commodity pool, as defined in the CEA voting rights, Market Maker accounts, and the applicable rules of the CFTC, III. Discussion and Commission’s and limitation of liability of the and will be formed as a Delaware Findings Corporation, are substantively identical statutory trust.7 After careful consideration, the to those respective provisions The investment objective of the Trust Commission finds that the proposed applicable to other types of commodity- will be to maximize absolute returns rule change is consistent with the and currency-based derivative securities from its portfolio of (i) exchange-traded requirements of the Act and the rules products.13 Further, the Commission futures contracts involving and regulations thereunder applicable to notes that the Exchange is required to commodities, currencies, certain eligible a national securities exchange.9 In file a proposed rule change pursuant to stock and/or bond indices, interest rates particular, the Commission finds that Section 19(b)(1) of the Act to list and and sovereign, private and mortgage- or the proposed rule change is consistent 8 trade each issue of Managed Trust asset-backed debt instruments and/or with the requirements of Section 6(b)(5) Securities. The Commission believes (ii) certain currency forward contracts in of the Act,10 which requires, among that the proposed new listing rule, the top 25 most liquid or actively traded other things, that the Exchange’s rules NYSE Arca Equities Rule 8.700, is currencies measured by turnover in the be designed to promote just and reasonably designed to protect investors most recent BIS Central Bank Survey, equitable principles of trade, to foster and the public interest. each as disclosed in the Trust’s cooperation and coordination with In addition, the Commission finds prospectus as such may be amended persons engaged in regulating, clearing, that the proposal to list and trade the from time to time, while seeking to settling, processing information with Shares on the Exchange is consistent

6 respect to, and facilitating transactions with Section 11A(a)(1)(C)(iii) of the The Exchange represents that the Shares will 14 conform to the initial and continued listing criteria in securities, to remove impediments to Act, which sets forth Congress’ finding under proposed NYSE Arca Equities Rule 8.700 and and perfect the mechanism of a free and that it is in the public interest and that the Trust is required to comply with Rule 10A– open market and a national market appropriate for the protection of 3 under the Act for the initial and continued listing system, and, in general, to protect investors and the maintenance of fair of the Shares. See 17 CFR 240.10A–3. Rule 10A– 3(e)(3) provides that, in the case of a listed limited investors and the public interest. and orderly markets to assure the partnership or limited liability company where With respect to the Exchange’s availability to brokers, dealers and such entity does not have a board of directors or proposal to adopt new NYSE Arca investors of information with respect to equivalent body, the term ‘‘board of directors’’ Equities Rule 8.700 relating to the quotations for and transactions in means the board of directors of the managing general partner, managing member or equivalent listing and trading of Managed Trust securities. Quotation and last-sale body. The Trust itself has no employees or board Securities, the Commission notes that information for the Shares will be of directors and its operations are conducted by the the standards proposed therein are available via the Consolidated Tape Trustee, subject to the direction by the Sponsor. based on listing standards of other Association CQ High-Speed Lines, and Accordingly, the Trust has designated a committee of the board of directors of the Sponsor to act as derivative securities products that have one or more major market data vendors the audit committee of the Trust for Rule 10A–3 previously been approved by the will disseminate the Intraday Indicative purposes. The Sponsor’s role under the governing Commission. Except for the definition of Value (‘‘IIV’’) at least every 15 seconds documents of the Trust makes the Sponsor ‘‘Managed Trust Securities,’’ each of the during the time the Shares trade on the analogous to the managing member of a limited liability company. The Exchange believes it is defined terms under new NYSE Arca Exchange. In addition, the Trust will reasonable to interpret Rule 10A–3(e)(3) as Equities Rule 8.700(c) are substantively make available daily on its Web site the permitting a trust to utilize a committee of the identical to those applicable to Managed Disclosed Portfolio, which will include, board of directors of its sponsor as the trust’s audit Fund Shares under NYSE Arca Equities as applicable, the name identifier and committee for purposes of compliance with Rule 11 10A–3, provided that the sponsor’s role with Rule 8.600. In addition, almost all of respect to the trust is analogous to the relationship listing and trading of Managed Fund Shares). See between a managing member and a limited liability 9 In approving this proposed rule change, the also NYSE Arca Equities Rule 8.600. company. Commission notes that it has considered the 12 See, e.g., NYSE Arca Equities Rule 8.200 (Trust 7 The Trust is not an investment company proposed rule’s impact on efficiency, competition, Issued Receipts), NYSE Arca Equities Rule 8.201 registered under the Investment Company Act of and capital formation. See 15 U.S.C. 78c(f). (Commodity-Based Trust Shares), NYSE Arca 1940, according to the Registration Statement on 10 15 U.S.C. 78f(b)(5). Equities Rule 8.202 (Currency-Based Trust Shares), Form S–1 for the Trust, which was filed with the 11 See Securities Exchange Act Release No. 57619 and NYSE Arca Equities Rule 8.204 (Commodity Commission on August 20, 2008 (File No. 333– (April 4, 2008), 73 FR 19544 (April 10, 2008) (SR– Futures Trust Shares). 153099) (‘‘Registration Statement’’). NYSEArca-2008–25) (approving the adoption of 13 See id. 8 See supra note 5. NYSE Arca Equities Rule 8.600 governing the 14 15 U.S.C. 78k–1(a)(1)(C)(iii).

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number of each futures contract, the Commission notes that the Exchange The Exchange has represented that amount and currency type of each will obtain a representation from the the Shares are deemed equity securities forward contract, and the amount of Trust that the NAV per Share will be subject to the Exchange’s rules cash held. The Web site for the Trust calculated daily and that the NAV and governing the trading of equity will also contain the following the Disclosed Portfolio will be made securities. In support of this proposal, information: (1) The prior business available to all market participants at the Exchange has made representations, 15 day’s NAV per Share and the reported the same time.18 Additionally, if the including: closing price; (2) the mid-point of the Exchange becomes aware that the NAV bid-ask price in relation to the NAV per (1) The Shares will conform to the or the Disclosed Portfolio is not initial and continued listing criteria Share as of the time the NAV is disseminated daily to all market 16 under proposed NYSE Arca Equities calculated (‘‘Bid-Ask Price’’); (3) participants at the same time, the Rule 8.700. calculation of the premium or discount Exchange will halt trading in the Shares of such price against such NAV per until such information is available to all (2) The Exchange’s surveillance Share; (4) data in chart form displaying market participants.19 Further, if the IIV procedures are adequate to properly the frequency distribution of discounts is not being disseminated as required, monitor Exchange trading of the Shares and premiums of the Bid-Ask Price the Exchange may halt trading during in all trading sessions and to deter and against the NAV per Share, within the day in which the disruption occurs; detect violations of Exchange rules and appropriate ranges for each of the four if the interruption persists past the day applicable federal securities laws. In previous calendar quarters; (5) the in which it occurred, the Exchange will addition, the Exchange has an prospectus and the most recent periodic halt trading no later than the beginning Information Sharing Agreement in place reports filed with the Commission or of the trading day following the with the New York Mercantile required by the CFTC;17 and (6) other interruption.20 The Exchange represents applicable quantitative information. The Exchange, the Kansas City Board of that Barclays Global Fund Advisors, the Exchange will disseminate for the Trust Trade, ICE Futures, and the London on a daily basis by means of commodity trading advisor of the Trust, Metal Exchange for the purpose of Consolidated Tape Association CQ High is affiliated with a broker-dealer. As a providing information in connection Speed Lines information with respect to result, Barclays Global Fund Advisors with trading in or related to futures the recent Trust NAV, number of Shares and its applicable affiliated broker- contracts traded on such exchanges. outstanding, and the basket amount. dealers that are authorized to conduct Further, for components traded on The Exchange will also make available trading have in place (or will erect exchanges, not more than 10% of the on its Web site daily trading volume, before launch) policies and procedures weight of the Trust’s portfolio in the closing prices, and the Trust’s NAV per designed to prevent the disclosure of aggregate shall consist of components Share. The Exchange states that pricing material non-public information, whose principal trading market is not a for futures contracts is available from including changes and adjustments to member of the Intermarket Surveillance 21 the relevant exchange on which such the Disclosed Portfolio. Finally, the Group or is a market with which the Commission notes that the Reporting futures contracts trade, and pricing for Exchange does not have a Authority that provides the Disclosed forward contracts is available from comprehensive surveillance sharing Portfolio must implement and maintain, major market data vendors. Lastly, agreement. information regarding the market price or be subject to, procedures designed to and volume of the Shares will be prevent the use and dissemination of (3) Prior to the commencement of continually available on a real-time material non-public information trading, the Exchange will inform its basis throughout the day on brokers’ regarding the actual components of the ETP Holders in an Information Bulletin computer screens and other electronic portfolio.22 of the special characteristics and risks services, and the previous day’s closing associated with trading the Shares. price and trading volume information 18 See proposed NYSE Arca Equities Rule Specifically, the Information Bulletin for the Shares will be published daily in 8.700(e)(1)(B). will discuss the following: (a) The the financial sections of newspapers. 19 See proposed NYSE Arca Equities Rule procedures for purchases and The Commission further believes that 8.700(e)(2)(D). 20 See id. Trading in the Shares may also be redemptions of Shares and that Shares the proposal to list and trade the Shares halted because of market conditions or for reasons are not individually redeemable; (b) is reasonably designed to promote fair that, in the view of the Exchange, make trading in NYSE Arca Equities Rule 9.2(a), which disclosure of information that may be the Shares inadvisable. These may include: (1) The imposes a duty of due diligence on its extent to which trading is not occurring in the necessary to price the Shares ETP Holders to learn the essential facts appropriately and to prevent trading underlying futures contracts or currency forward contracts; or (2) whether other unusual conditions relating to every customer prior to when a reasonable degree of or circumstances detrimental to the maintenance of trading the Shares; (c) the requirement transparency cannot be assured. The a fair and orderly market are present. E-mail from Sudhir Bhattacharrya, Vice President—Legal, NYSE that ETP Holders deliver a prospectus to 15 The most recent end-of-day NAV of the Trust Euronext, to Edward Cho, Special Counsel, Division investors purchasing newly issued and NAV per Share will be published by the of Trading and Markets, Commission, dated May Shares prior to or concurrently with the Sponsor as of 4 p.m. Eastern Time daily on Reuters 26, 2009. confirmation of a transaction; (d) the and/or Bloomberg and on the Trust’s Web site at 21 E-mail from Sudhir Bhattacharrya, Vice http://www.iShares.com. The end-of-day NAV per President—Legal, NYSE Euronext, to Edward Cho, risks involved in trading the Shares Share will also be published the following morning Special Counsel, Division of Trading and Markets, during the Opening and Late Trading on the Consolidated Tape. Commission, dated May 26, 2009. The Exchange Sessions when an updated IIV will not 16 The Bid-Ask Price of Shares is determined further represents that personnel who make be calculated or publicly disseminated; using the highest bid and lowest offer as of the time decisions concerning the Trust’s portfolio of calculation of the NAV per Share. composition are subject to procedures designed to and (e) trading information. 17 Monthly account statements conforming to prevent the use and dissemination of material, non- public information, including information relating (4) The Fund will be in compliance applicable CFTC and NFA requirements are posted 23 on the Trust’s Web site at http://www.iShares.com. to the applicable Trust portfolio. See Commentary with Rule 10A–3 under the Act. Additional reports may be posted on the Trust’s .05 to proposed NYSE Arca Equities Rule 8.700. Web site in the discretion of the Sponsor or as 22 See proposed NYSE Arca Equities Rule required by regulatory authorities. 8.700(e)(2)(B)(ii). 23 See supra note 6.

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(5) A minimum of 100,000 Shares will the Federal Register on May 4, 2009.3 discrimination) would have a majority be required to be outstanding at the start The Commission received no comments public panel; and cases involving an of trading.24 on the proposed rule change. This order associated person with a statutory This approval order is based on the approves the proposed rule change, as discrimination claim would have a Exchange’s representations. modified by Amendment No. 1. specialized all public panel.8 Moreover, For the foregoing reasons, the if a member amends its pleadings to add I. Description of the Proposal Commission finds that the proposed an associated person, the case would rule change is consistent with Section FINRA proposed to amend the receive a majority public panel, and the 6(b)(5) of the Act 25 and the rules and Industry Code to change the criteria for rules that apply to cases between regulations thereunder applicable to a determining the panel composition associated persons and members would national securities exchange. when the claim involves an associated govern list selection and the person in industry disputes. IV. Conclusion administration of the arbitration Currently, Rule 13402(a) of the proceeding. It is therefore ordered, pursuant to Industry Code requires an all non-public Section 19(b)(2) of the Act,26 that the panel for disputes between members, Employment Disputes Involving proposed rule change (SR–NYSEArca– and for employment disputes between Associated Persons 2009–30), as modified by Amendment or among members and associated Currently, in employment disputes No. 1 thereto, be, and it hereby is, persons that relate exclusively to between or among members and approved. employment contracts, promissory associated persons, FINRA requires that For the Commission, by the Division of notes, or receipt of commissions.4 In all other disputes between or among the panel consist of all non-public Trading and Markets, pursuant to delegated arbitrators in cases that arise out of the authority.27 members and associated persons, Rule employment or termination of Florence E. Harmon, 13402(b) requires a majority public panel, where one arbitrator would be a employment of an associated person, Deputy Secretary. and that relate exclusively to (1) [FR Doc. E9–13969 Filed 6–12–09; 8:45 am] non-public arbitrator and two would be public arbitrators.5 employment contracts, (2) promissory BILLING CODE 8010–01–P FINRA proposed to amend the notes, or (3) receipt of commissions. Industry Code to change the criteria for However, if a party adds a claim that determining panel composition when does not meet these criteria, the parties SECURITIES AND EXCHANGE receive a majority public panel. COMMISSION the claim involves an associated person in industry disputes.6 Specifically, FINRA proposed to amend Rule [Release No. 34–60061; File No. SR–FINRA– FINRA proposed to amend Rule 13402 13402 of the Industry Code to clarify 2009–011] and related rules of the Industry Code that for all employment disputes to: between or among members and Self-Regulatory Organizations; • Financial Industry Regulatory Require that the parties receive a associated persons (except for statutory Authority, Inc.; Order Approving a majority public panel for all industry employment discrimination cases), the disputes involving associated persons parties must select a majority public Proposed Rule Change as Modified by 9 Amendment No. 1 Thereto To Amend (excluding disputes involving statutory panel. Rule 13402(a) would be the Panel Composition Rules of the employment discrimination claims amended to delete the title of the rule, Code of Arbitration Procedure for which require a specialized all public which contains the exceptions to the 7 Industry Disputes panel); majority public panel requirement, and • Clarify that in disputes involving replace it with a concise description, June 5, 2009. only members, parties will receive an all which clarifies that Rule 13402(a) On March 4, 2009, the Financial non-public panel; and would apply to disputes involving only Industry Regulatory Authority, Inc. • Provide that if a party amends its members. Rule 13402(b) would be (‘‘FINRA’’) (f/k/a National Association pleadings to add an associated person to amended to modify the title of the rule of Securities Dealers, Inc. (‘‘NASD’’)) a previously all member case, parties to clarify that for all industry disputes filed with the Securities and Exchange will receive a majority public panel. involving associated persons (excluding Commission (‘‘SEC’’ or ‘‘Commission’’), Thus, cases involving only members disputes involving statutory pursuant to Section 19(b)(1) of the would have an all non-public panel; employment discrimination claims), the Securities Exchange Act of 1934 cases involving a member and an parties would receive a majority public (‘‘Exchange Act’’ or ‘‘Act’’) 1 and Rule associated person (excluding cases panel. FINRA also proposed to make 19b–4 thereunder,2 a proposed rule involving a claim for statutory similar title changes to Rules 13403(a) change to amend the panel composition and 13403(b), which govern generating rules of the Code of Arbitration 3 See Exchange Act Release No. 59836 (April 28, and sending lists to parties, and to Rules Procedure for Industry Disputes 2009); 74 FR 20519 (May 4, 2009). 13406(a) and 13406(b), which govern (‘‘Industry Code’’). On April 7, 2009, 4 If the panel consists of one arbitrator, the appointment of arbitrators and arbitrator will be a non-public arbitrator selected discretion to appoint arbitrators not on FINRA filed Amendment No. 1 to the from the non-public chairperson roster described in proposed rule change. The proposed Rule 13400(c). See Rule 13402(a). the list. rule change, as modified by Amendment 5 If the panel consists of one arbitrator, the No. 1, was published for comment in arbitrator will be a public arbitrator selected from 8 See Rule 13802(c) (panel composition rule for the chairperson roster described in Rule 12400(c) of statutory employment discrimination claims). the Code of Arbitration Procedure for Customer 9 24 The proposed change would be consistent with See proposed NYSE Arca Equities Rule Disputes (‘‘Customer Code’’). See Rule 13402(b). 8.700(e)(1)(A). the rules and procedures of the former New York 6 The proposed changes discussed in this order Stock Exchange (‘‘NYSE’’) arbitration forum. In the 25 15 U.S.C. 78f(b)(5). will not apply to claims filed under the Customer NYSE arbitration forum, cases involving associated 26 15 U.S.C. 78s(b)(2). Code. persons received a majority public panel because 27 17 CFR 200.30–3(a)(12). 7 The proposal would not apply to disputes the rules classified associated persons as non- 1 15 U.S.C. 78s(b)(1). involving a claim of statutory employment members, and non-members received a majority 2 17 CFR 240.19b–4. discrimination. See Rule 13802. public panel. See NYSE Rule 607(a)(1).

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Employment Disputes Involving Only add a new party until a panel has been It is therefore ordered, pursuant to Members selected and the panel grants a motion Section 19(b)(2) of the Act,19 that the 14 FINRA proposed to amend Rule to add the party. If the panel grants the proposed rule change (SR–FINRA– 13402(a) to clarify that, in disputes motion to add an associated person, 2009–011), as modified by Amendment involving only members, the parties will FINRA will retain the non-public No. 1, be and hereby is approved. receive an all non-public panel. FINRA chairperson from the panel, and remove For the Commission, by the Division of 15 noted that the proposed amendment to the remaining non-public arbitrators. Trading and Markets, pursuant to delegated Rule 13402(a) is consistent with the The parties would select two public authority. 20 current rule and its intent, which is that arbitrators from new lists that FINRA Florence E. Harmon, disputes involving only members would send to them in the same manner Deputy Secretary. as if the ranked lists are not yet due. The should receive an all non-public panel. [FR Doc. E9–13967 Filed 6–12–09; 8:45 am] arbitrator selected from the public Amendments to Pleadings That Add an chairperson list would be the BILLING CODE 8010–01–P Associated Person chairperson of the panel. If the panel FINRA proposed to add a provision to consists of one arbitrator and the DEPARTMENT OF STATE Rule 13402(a) to address amended arbitrator grants a motion to add an pleadings that add an associated person associated person, the arbitrator would [Public Notice 6662] as a party. Under the proposed rule be replaced with a public chair- change, if a member in a dispute qualified arbitrator that the parties Notice of Proposed Information involving only members amends a select from a new public chairperson Collection list that NLSS would generate.16 pleading to add a party who is an 30–Day Notice of Proposed associated person, the parties will II. Discussion Information Collection: Form DS–7002, receive a majority public panel. If lists Training/Internship Placement Plan, of potential arbitrators have not been After careful review, the Commission OMB Control Number 1405–0170. sent to parties, the Neutral List finds that the proposed rule change is Selection System (NLSS) would consistent with the requirements of the ACTION: Notice of request for public generate three lists as outlined in Rule Act and the rules and regulations comment and submission to OMB of 13403(b)(2) of the Industry Code. thereunder applicable to a national proposed collection of information. 17 Specifically, FINRA would send a securities association. In particular, the Commission finds that the proposed SUMMARY: The Department of State has public chairperson list, a public submitted the following information arbitrator list, and a non-public rule change is consistent with Section 15A(b)(6) of the Act,18 in that it is collection request to the Office of arbitrator list. If the panel consists of Management and Budget (OMB) for one arbitrator,10 NLSS would generate a designed, among other things, to prevent fraudulent and manipulative approval in accordance with the public chairperson list, and FINRA Paperwork Reduction Act of 1995. would send this list only to the acts and practices; to promote just and 11 equitable principles of trade; to remove * Title of Information Collection: parties. Training/Internship Placement Plan. If the lists have been sent to parties impediments to and perfect the * OMB Control Number: 1405–0170. but are not yet due, FINRA would send mechanism of a free and open market * Type of Request: Revision of a two new lists to the parties: A public and a national market system; and, in Currently Approved Collection. chairperson list and a public arbitrator general, to protect investors and the * Originating Office: Bureau of list as outlined in Rule 13403(b)(2).12 public interest. Educational and Cultural Affairs, The parties would keep the non-public The Commission believes that the ECA/EC. chairperson list provided to them as proposed rule change will protect the public interest by simplifying the * Form Number: Form DS–7002. described in Rule 13403(a), and would * Respondents: Entities designated by select the non-public arbitrator from this criteria for panel composition in the Department of State as sponsors of list. The arbitrator selected from the industry disputes, establishing an exchange visitor programs in the trainee public chairperson list would be the objective standard for determining panel or intern categories and U.S. businesses chairperson of the panel. If the panel composition, and ensuring that panel that provide the training or internship consists of one arbitrator, FINRA would composition is determined by the types opportunity. send only a new public chairperson list of parties involved, and not by the types * Estimated Number of Respondents: to the parties.13 of claims filed. 160. If the ranked lists are due, then the III. Conclusion parties may not amend a pleading to * Estimated Number of Responses: For the foregoing reasons, the 30,000. 10 In a dispute between members, if the panel Commission finds that the proposed * Average Hours per Response: 2 consists of one arbitrator, the arbitrator will be rule change is consistent with the Act hours. selected from FINRA’s non-public chairperson and the rules and regulations * Total Estimated Burden: 60,000. arbitrator roster. See Rule 13402(a). thereunder applicable to a national * Frequency: On occasion. 11 See Rule 13403(b)(1). FINRA has raised the securities association. * Obligation To Respond: Required to amount in controversy that will be heard by a single chair-qualified arbitrator to $100,000. The rule obtain a benefit. became effective on March 30, 2009. See Exchange 14 See Rule 13309(c) of the Industry Code. DATES: Submit comments to the Office Act Release No. 59340 (February 2, 2009), 74 FR 15 Pursuant to Rule 13407(b), the newly added of Management and Budget (OMB) for 6335 (February 6, 2009) (File No. SR–FINRA–2008– party may not strike the non-public arbitrator but 047); see also Regulatory Notice 09–13. may challenge the arbitrator for cause in accordance up to 30 days from June 15, 2009. 12 Pursuant to Rule 13407(a), FINRA will send the with Rule 13410. ADDRESSES: Direct comments and list of non-public arbitrators to the new party, with 16 See note 8 supra. questions to Katherine Astrich, the employment history for the past 10 years and other 17 In approving the proposed rule change, the background information for each arbitrator listed. Commission has considered the rule change’s Department of State Desk Officer in the The newly added party may rank and strike impact on efficiency, competition, and capital arbitrators in accordance with Rule 13404. formation. 15 U.S.C. 78c(f). 19 15 U.S.C. 78s(b)(2). 13 See note 8 supra. 18 15 U.S.C. 78o–3(b)(6). 20 17 CFR 200.30–3(a)(12).

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Office of Information and Regulatory Methodology $250 filing fee. See 49 CFR Affairs at the Office of Management and The collection will be submitted to 1002.2(f)(27). Applicant’s reply to any Budget (OMB), who may be reached at the Department by mail or fax as opposition statements and its response 202–395–4718. You may submit requested by DoS during the review of to trail use requests must be filed by comments by any of the following a program sponsor’s file, redesignation July 27, 2009. See 49 CFR 1152.26(a). methods: of a sponsor organization, during the Persons opposing the abandonment * E-mail: [email protected]. You investigation of a complaint or incident, must include the DS form number, who wish to participate actively and etc. information collection title, and OMB fully in the process should file a protest. control number in the subject line of Dated: June 8, 2009. Persons who oppose the abandonment your message. Stanley S. Colvin, but who do not wish to participate fully * Mail (paper, disk, or CD–ROM Deputy Assistant Secretary for Private Sector in the process by submitting verified submissions): Office of Information and Exchange, Bureau of Educational and statements of witnesses containing Regulatory Affairs, Office of Cultural Affairs, Department of State. detailed evidence should file comments. Management and Budget, 725 17th [FR Doc. E9–14012 Filed 6–12–09; 8:45 am] Persons seeking information concerning Street, NW., Washington, DC 20503. BILLING CODE 4710–05–P the filing of protests should refer to 49 * Fax: 202–395–5806. CFR 1152.25. Persons interested only in FOR FURTHER INFORMATION CONTACT: You seeking public use or trail use may obtain copies of the proposed DEPARTMENT OF TRANSPORTATION conditions should also file comments. information collection and supporting In addition, a commenting party or documents from Stanley S. Colvin, Surface Transportation Board protestant may provide: (i) An offer of Deputy Assistant Secretary for Private [STB Docket No. AB–33 (Sub-No. 275)] financial assistance (OFA) for continued Sector Exchange, U.S. Department of rail service under 49 U.S.C. 10904 (due State, SA–44, 301 4th Street, SW., Room Union Pacific Railroad Company— 734, Washington, DC 20547; or e-mail at Abandonment—in Rusk County, TX 120 days after the application is filed or [email protected]. 10 days after the application is granted On May 26, 2009, Union Pacific by the Board, whichever occurs sooner); SUPPLEMENTARY INFORMATION: We are soliciting public comments to Railroad Company (UP) filed with the (ii) recommended provisions for permit the Department to: Board an application for permission to protection of the interests of employees; * Evaluate whether the proposed abandon its Henderson Industrial Lead, (iii) a request for a public use condition information collection is necessary to extending from milepost 0.59, near under 49 U.S.C. 10905; and (iv) a properly perform our functions. Overton, to milepost 16.28, near statement pertaining to prospective use * Evaluate the accuracy of our Henderson, a distance of 15.69 miles, in of the right-of-way for interim trail use estimate of the burden of the proposed Rusk County, TX (the Henderson and rail banking under 16 U.S.C. collection, including the validity of the Industrial Lead or the line). The line 1247(d) and 49 CFR 1152.29. methodology and assumptions used. includes no stations and traverses * Enhance the quality, utility, and United States Postal Service ZIP Code All filings in response to this notice clarity of the information to be 75652. must refer to STB Docket No. AB–33 collected. The line does not contain federally (Sub-No. 275) and must be sent to: (1) * Minimize the reporting burden on granted rights-of-way. Any Surface Transportation Board, 395 E those who are to respond, documentation in UP’s possession will Street, SW., Washington, DC 20423– be made available promptly to those 0001; and (2) Mack H. Shumate, Jr., Abstract of Proposed Collection requesting it. The applicant’s entire case Senior General Attorney, 101 North The collection is the continuation of for abandonment (case-in-chief) was Wacker Drive, Room 1920, Chicago, IL information collected and needed by the filed with the application. 60606. The original and 10 copies of all Bureau of Educational and Cultural This line of railroad has appeared on comments or protests shall be filed with Affairs in administering the Exchange UP’s system diagram map or been the Board with a certificate of service. Visitor Program (J–Visa) under the included in the narrrative in category 1 Except as otherwise set forth in part provisions of the Mutual Educational since August 28, 2008. 1152, every document filed with the and Cultural Exchange Act, as amended. The interest of railroad employees Board must be served on all parties to Trainee/Internship Placement Plans are will be protected by the conditions set the abandonment proceeding. 49 CFR to be completed by designated program forth in Oregon Short Line R. Co.— 1104.12(a). sponsors. A Training/Internship Abandonment—Goshen, 360 I.C.C. 91 Placement Plan is required for each (1979). The line sought to be abandoned will trainee or intern participant. It will set Any interested person may file with be available for subsidy or sale for forth the training or internship program the Board written comments concerning continued rail use, if the Board decides to be followed and includes the skills the proposed abandonment, or protests to permit the abandonment, in the trainee or intern will obtain, (including the protestant’s entire case in accordance with applicable laws and whether the trainee or intern will opposition), by July 10, 2009. All regulations (49 U.S.C. 10904 and 49 CFR receive any remuneration for housing interested persons should be aware that 1152.27). Each OFA must be and living expenses (and if so, the following any abandonment of rail accompanied by a $1,500 filing fee.1 See amount), and estimates the living service and salvage of the line, the line 49 CFR 1002.2(f)(25). No subsidy expenses and other costs the trainees or may be suitable for other public use, arrangement approved under 49 U.S.C. interns are likely to incur while in the including interim trail use. Any request 10904 shall remain in effect for more United States. The Plan must be signed for a public use condition under 49 by the trainee or intern, a sponsor U.S.C. 10905 (49 CFR 1152.28) and any 1 On June 4, 2009, the Board increased the fee for official, and the third party placement request for a trail use condition under offers of financial assistance and trail use requests. organization, if a third party 16 U.S.C. 1247(d) (49 CFR 1152.29) See Regulations Governing Fees for Services Performed in Connection with Licensing and organization is used in the conduct of must be filed by July 10, 2009. Each trail Related Services—2009 Update, STB Ex Parte No. the training or internship. use request must be accompanied by a 542 (Sub-No. 16) (STB served May 5, 2009).

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than 1 year unless otherwise mutually EA or EIS may be issued where Federal Register publications, they are agreed by the parties (49 U.S.C. appropriate. not repeated here. Requests for 10904(f)(4)(B)). Applicant will promptly Board decisions and notices are modification of special permits (e.g., to provide upon request to each interested available on our Web site at http:// provide for additional hazardous party an estimate of the subsidy and www.stb.dot.gov. materials, packaging design changes, minimum purchase price required to Decided: June 8, 2009. additional mode of transportation, etc.) keep the line in operation. The carrier’s By the Board, Rachel D. Campbell, are described in footnotes to the representative to whom inquiries may Director, Office of Proceedings. application number. Application be made concerning sale or subsidy Jeffrey Herzig, numbers with the suffix ‘‘M’’ denote a terms is set forth above. Clearance Clerk. modification request. These applications have been separated from Persons seeking further information [FR Doc. E9–13834 Filed 6–12–09; 8:45 am] the new application for special permits concerning abandonment procedures BILLING CODE 4915–01–P to facilitate processing. may contact the Board’s Office of Public Assistance, Governmental Affairs, and DATES: Comments must be received on Compliance at (202) 245–0230 or refer DEPARTMENT OF TRANSPORTATION or before June 30, 2009. to the full abandonment or ADDRESS COMMENTS TO: Record Center, Pipeline and Hazardous Materials discontinuance regulations at 49 CFR Pipeline and Hazardous Materials Safety Safety Administration part 1152. Questions concerning Administration, U.S. Department of environmental issues may be directed to Office of Hazardous Materials Safety; Transportation, Washington, DC 20590. the Board’s Section of Environmental Notice of Applications for Modification Comments should refer to the Analysis (SEA) at (202) 245–0305. of Special Permit application number and be submitted in [Assistance for the hearing impaired is triplicate. If confirmation of receipt of available through the Federal AGENCY: Pipeline and Hazardous comments is desired, include a self- Information Relay Service (FIRS) at 1– Materials Safety Administration addressed stamped postcard showing 800–877–8339.] (PHMSA), DOT. the special permit number. ACTION: List of applications for An environmental assessment (EA) (or FOR FURTHER INFORMATION CONTACT: modification of special permits. environmental impact statement (EIS), if Copies of the applications are available for inspection in the Records Center, necessary) prepared by SEA will be SUMMARY: In accordance with the served upon all parties of record and procedures governing the application East Building, PHH–30, 1200 New upon any agencies or other persons who for, and the processing of, special Jersey Avenue, Southeast, Washington, commented during its preparation. permits from the Department of DC or at http://fdms.gov. Other interested persons may contact Transportation’s Hazardous Material This notice of receipt of applications SEA to obtain a copy of the EA (or EIS). Regulations (49 CFR Part 107, Subpart for modification of special permit is EAs in these abandonment proceedings B), notice is hereby given that the Office published in accordance with Part 107 normally will be made available within of Hazardous Materials Safety has of the Federal hazardous materials 33 days of the filing of the application. received the applications described transportation law (49 U.S.C. 5117(b); The deadline for submission of herein. This notice is abbreviated to 49 CFR 1.53(b)). comments on the EA will generally be expedite docketing and public notice. Issued in Washington, DC, on June 2, 2009. within 30 days of its service. The Because the sections affected, modes of Delmer F. Billings, comments received will be addressed in transportation, and the nature of Director, Office of Hazardous, Materials, the Board’s decision. A supplemental application have been shown in earlier Special Permits and Approvals.

MODIFICATION SPECIAL PERMITS

Application No. Docket No. Applicant Regulation(s) affected Nature of special permit thereof

8495—M ...... Kidde Aerospace, Wilson, 49 CFR 173.304(a)(1) To modify the special permit to authorize the re- NC. 178.47; 175.3. moval of the girth weld process and the post weld x-ray inspection. 9408–M ...... MEMC Pasadena, Inc., 49 CFR 173.301(d)(2); To modify the special permit to authorize the low- Pasadena, TX. 173.302. ering of service pressure from 2200 to 1600 psi. 11156–M ...... Alaska Pacific Powder 49 CFR 173.62; To modify the special permit to authorize cargo air- Company, Anchorage, 173.212(b). craft as an authorized mode of transport. AK. 13556–M ...... Stericycle, Inc., Lake For- 49 CFR 172.301(a)(1); To modify the special permit to delete the require- est, IL. 172.301(c). ment that no other lading is authorized in the ve- hicle. 14466–M ...... Alaska Pacific Powder 49 CFR 172.101 Column To modify the special permit to authorize additional Company, Anchorage, (9B). Division 2.1 hazardous materials. AK. 14584–M ...... WavesinSolids LLC, 49 CFR 173.302 and To modify the special permit to authorize additional State College, PA. 180.209. cylinders and to allow cylinders to be charged to 110 percent of the usual settled filled pressure or 110 percent of the stamped service pressure (whichever is greater). 14600–M ...... McLane Company, Inc., 49 CFR 173.308 ...... To modify the special permit to authorize two Temple, TX. addtional BIC lighters.

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MODIFICATION SPECIAL PERMITS—Continued

Application No. Docket No. Applicant Regulation(s) affected Nature of special permit thereof

14817–M ...... Questar, Inc., North Can- 49 CFR 173.12(b)(2) ...... To modify the special permit to authorize the man- ton, OH. ufacture, marking, sale and use of a larger (66 gallon) corrugated fiberboard box for use as the outer packaging for lab pack applications in ac- cordance with 49 CFR 173.12(b).

[FR Doc. E9–13932 Filed 6–12–09; 8:45 am] www.regulations.gov, including any would be time-limited to permit the BILLING CODE 4909–60–M personal information you provide. incorporation of incremental design Using the search function of our docket improvements to the thrust reverser and Web site, anyone can find and read the engine as they become available, in DEPARTMENT OF TRANSPORTATION comments received into any of our order to reduce the risk of a hazardous dockets, including the name of the thrust reverser inner wall failure. Federal Aviation Administration individual sending the comment (or [FR Doc. E9–13930 Filed 6–12–09; 8:45 am] [Summary Notice No. PE–2009–21] signing the comment for an association, business, labor union, etc.). You may BILLING CODE 4910–13–P Petition for Exemption; Summary of review DOT’s complete Privacy Act Petition Received Statement in the Federal Register published on April 11, 2000 (65 FR TENNESSEE VALLEY AUTHORITY AGENCY: Federal Aviation 19477–78). Administration (FAA), DOT. Docket: To read background Environmental Impact Statement; ACTION: Notice of petition for exemption documents or comments received, go to Integrated Resource Plan received. http://www.regulations.gov at any time or to the Docket Management Facility in AGENCY: Tennessee Valley Authority. SUMMARY: This notice contains a Room W12–140 of the West Building ACTION: Notice of intent. summary of a petition seeking relief Ground Floor at 1200 New Jersey from specified requirements of 14 CFR. Avenue, SE., Washington, DC, between SUMMARY: The Tennessee Valley The purpose of this notice is to improve 9 a.m. and 5 p.m., Monday through Authority (TVA) is conducting a the public’s awareness of, and Friday, except Federal holidays. comprehensive study of its energy, participation in, this aspect of FAA’s resource and sustainability choices FOR FURTHER INFORMATION CONTACT: regulatory activities. Neither publication called TVA’s Environmental and Energy Maria G. Delgado, ANM–113, (425) 227– of this notice nor the inclusion or Future. The purpose of this study is to 2775, FAA, Transport Airplane omission of information in the summary evaluate TVA’s portfolio of resource Directorate, 1601 Lind Ave., SW., is intended to affect the legal status of options for achieving a sustainable Renton, Washington 98057–3356; or the petition or its final disposition. future and meeting the future electrical Ralen Gao, ARM–200, (202) 267–3168, energy and resource stewardship needs DATES: Comments on this petition must FAA, Office of Rulemaking, 800 of the Tennessee Valley. As part of the identify the petition docket number Independence Ave., SW., Washington, study, TVA will prepare a programmatic involved and must be received on or DC 20591. before July 6, 2009. This notice is published pursuant to environmental impact statement (EIS). ADDRESSES: You may send comments 14 CFR 11.85. TVA will use the EIS process to elicit identified by Docket Number FAA– and prioritize the values and concerns Issued in Washington, DC, on June 9, 2009. of stakeholders; identify issues, trends, 2009–0320 using any of the following Pamela Hamilton-Powell, methods: events, and tradeoffs affecting TVA’s Director, Office of Rulemaking. • Government-wide rulemaking Web policies; formulate, evaluate and site: Go to http://www.regulations.gov Petition for Exemption compare alternative portfolios of resource options; provide opportunities and follow the instructions for sending Docket No.: FAA–2009–0320. your comments electronically. for public review and comment; and Petitioner: The Boeing Company. ensure that TVA’s evaluation of future • Mail: Send comments to the Docket Sections of 14 CFR Affected: resource portfolios reflects a full range Management Facility; U.S. Department §§ 25.301, 25.303, 25.305, 25.307, of stakeholder input. Public comment is of Transportation (DOT), 1200 New 25.601, 25.603, 25.613, 25.901(b)(2), invited concerning both the scope of the Jersey Avenue, SE., West Building 25.901(c), 25.1103(d), 25.1191, and EIS and environmental issues that Ground Floor, Room W12–140, 25.1301(d). Washington, DC 20590. Description of Relief Sought: The should be addressed as a part of this • Fax: Fax comments to the Docket petitioner requests an exemption from EIS. Management Facility at 202–493–2251. the requirements for the thrust reverser DATES: Comments on the scope of the • Hand Delivery: Bring comments to inner wall structure and operating EIS must be received on or before the Docket Management Facility in temperatures, and from the August 14, 2009. Public meetings will Room W12–140 of the West Building requirements for addressing a be held to obtain comments on the Ground Floor at 1200 New Jersey pneumatic duct failure condition. The scope of the EIS and to provide Avenue, SE., Washington, DC, between exemption would apply to certain information about TVA’s planning 9 a.m. and 5 p.m., Monday through Boeing Model 777–200 and –300 series processes. The locations and times for Friday, except Federal holidays. airplanes equipped with Rolls-Royce these meetings will be announced later Privacy: We will post all comments we RB211 Trent 800 series turbofan on the project Web site and in local and receive, without change, to http:// engines. The exemption, if granted, regional newspapers.

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ADDRESSES: Written comments should megawatts. TVA generates most of this acres which continue to be managed for be sent to Charles P. Nicholson, with 3 nuclear plants, 11 coal-fired a variety of purposes including Tennessee Valley Authority, 400 West plants, 9 combustion-turbine plants, 29 recreation, wildlife habitat, and resource Summit Hill Drive, WT 11D, Knoxville, hydroelectric dams, a pumped-storage protection. TVA recognizes that these Tennessee 37902. Comments also may facility, a wind farm, a methane-gas resources and their management are be submitted on the project Web site at cofiring facility, and several small solar important for the region’s quality of life. http://www.tva.gov/irp, by e-mail at photovoltaic facilities. A portion of In 2006, the TVA Board of Directors [email protected], or by fax at 865–632–2345. delivered power is provided through approved the TVA Land Policy which FOR FURTHER INFORMATION CONTACT: long-term power purchase agreements. states that it is TVA’s policy to preserve Randall E. Johnson, IRP Project About 60 percent of TVA’s annual reservoir lands remaining under its Manager, Tennessee Valley Authority, generation is from fossil fuels, control in public ownership except in 1101 Market Street, LP 5U, Chattanooga, predominantly coal; 30 percent is from those rare instances where the benefits Tennessee 37401, telephone 423–751– nuclear; and the remainder is from to the public will be so significant that 3520, or e-mail [email protected]. hydro and other renewable energy transferring lands from TVA control to SUPPLEMENTARY INFORMATION: resources. TVA transmits electricity private ownership or another public from these facilities over 15,000 miles of entity is justified. Background transmission lines. Like other utility TVA has addressed environmental This notice is provided in accordance systems, TVA has power interchange stewardship policies and activities in with the Council on Environmental agreements with utilities surrounding two programmatic EISs. In 2004, TVA Quality’s Regulations (40 CFR parts its region and purchases and sells power completed the comprehensive Reservoir 1500 to 1503) and TVA’s procedures for on an economy basis almost daily. Operations Study which supported the implementing the National Energy Power Planning Activities adoption of robust policy for the Environmental Policy Act (NEPA). In the mid-1990s, TVA developed an integrated operation of TVA’s reservoir TVA is an agency and instrumentality system. In 1998, TVA completed the of the United States, established by an integrated resource plan with extensive public involvement. This process was Shoreline Management Initiative Final act of Congress in 1933, to foster the EIS which supported the adoption of a social and economic welfare of the completed with publication of the Energy Vision 2020 IRP/Final EIS in policy for the management of residential people of the Tennessee Valley region shoreline development on TVA and to promote the proper use and 1995 and the associated Record of reservoirs. As appropriate, TVA expects conservation of the region’s natural Decision in 1996. Based on the to continue to implement these policies resources. One component of this extensive evaluation, TVA decided to and employ associated resource tools mission is the generation, transmission, adopt a flexible portfolio of supply- and during this EIS process. These policies and sale of reliable and affordable demand-side energy resource options to will help provide the baseline for the electric energy. Another component of meet the growing demand for electricity IRP EIS, and TVA does not plan to this mission is to manage the natural in the region and achieve the goals of revisit them in this EIS. The IRP EIS resources of the Valley for the benefit of the TVA Act and other congressional will focus on stewardship activities the region and the nation. This is done directives. This portfolio of energy mainly occurring on TVA’s lands across through management of the Tennessee resource options, as amended through River system and associated public subsequent EISs, will be a baseline for the Valley. lands to reduce flood damage, maintain evaluations conducted as part of this Existing TVA Policies navigation, support power production EIS process. As appropriate, TVA and recreational uses, improve water expects to continue to implement the In 2007, the TVA Board adopted its quality and supply, and protect existing portfolio of resource options current strategic plan which sets the shoreline resources. TVA’s mission also during this EIS process. following broad objectives: (1) Maintain includes aiding the economic power reliability, provide competitive Environmental Stewardship Planning rates, and build trust with TVA’s development of the Valley in order to Activities benefit the people of the region and customers; (2) build pride in TVA’s being a leader in technological The management of the Tennessee performance and reputation; (3) adhere innovation. Valley reservoirs and the lands adjacent to a set of sound financial guiding to them, and the manner in which TVA principles to improve TVA’s fiscal TVA Power System complies with environmental laws and performance; (4) use TVA’s assets to TVA operates the nation’s largest regulations, have long been integral meet market demand and deliver public public power system, producing 4 components of TVA’s mission. In value; and (5) improve performance to percent of all the electricity in the carrying out its mandate, TVA be recognized as an industry leader. In nation. TVA provides electricity to most developed an integrated reservoir 2008, the TVA Board approved the of Tennessee and parts of Virginia, system that includes 49 dams and current environmental policy which sets North Carolina, Georgia, Alabama, reservoirs. TVA originally acquired forth broad environmental goals for Mississippi, and Kentucky. It serves approximately 1.3 million acres of land TVA in the six major categories of about 9 million people in this seven- for these projects. The construction and climate change mitigation, air quality State region through 158 power operation of the reservoir system improvement, water resource protection distributors and 58 directly served large inundated approximately 470,000 acres and improvement, waste minimization, industries and Federal facilities. The with water. TVA has transferred or sold sustainable land use, and natural TVA Act requires the TVA power approximately 508,000 acres, the resource management. The IRP will use system to be self-supporting and majority of which was transferred to these goals and objectives as guidance to operated on a nonprofit basis and other Federal and State agencies for help formulate alternative resource directs TVA to sell power at rates as low public uses. TVA retains a role in the portfolios and determine their value. as are feasible. management of much of this land TVA would appreciate stakeholder Dependable capacity on the TVA through deed restrictions. TVA input on the value of these goals and power system is about 37,000 currently owns approximately 293,000 objectives.

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Proposed Issues To Be Addressed * And how will all of this affect and properly studied; (2) issues of little Based on both internal and external reliability and the price we pay for significance do not consume substantial stakeholder discussions, TVA electricity? time and effort; (3) the draft EIS is thorough and balanced; and (4) delays anticipates that the major issues to be Analytical Approach addressed in the IRP EIS will be the cost caused by an inadequate EIS are The IRP/EIS will address the demand and reliability of power, the effects of avoided. for power and stewardship in the TVA With the help of the public, TVA will power production on the environment, service area, the value of various identify the most effective energy and including climate change, the effects of resource options to the public served by resource stewardship portfolio that will climate change on the Valley, the TVA, the means of meeting that meet TVA’s mission and serve the availability and use of renewable power demand, and the potential people of the Valley for the next 10–20 resources, the effectiveness and environmental, economic, and operating years. To ensure that the full range of implementation of demand side effects of those means. The IRP/EIS will issues and a comprehensive portfolio of management options, including energy project future resource demands over at energy resources and environmental efficiency, handling waste and least a 10–20-year period. stewardship activities are addressed, byproducts of TVA’s power operations, Generally speaking, TVA will conduct TVA invites members of the public as selecting and prioritizing techniques for the following steps in the IRP process: well as Federal, State, and local the management of ecological and 1. Demand forecasting for both power agencies and Indian tribes to comment cultural resources, meeting the future and stewardship resources in the Valley. on the scope of the IRP EIS. As part of recreational needs of the Valley, and the 2. Resource characterization to define the EIS process, TVA anticipates asking relationship of the economy to all of the resource options and their physical, representatives from key stakeholder these activities. Generic resource cost, and environmental characteristics. groups to participate in a public review options will be the primary focus of the 3. Implementation strategy building group which will meet several times EIS. by creating alternative resource over the course of the study to learn Because of the programmatic nature of portfolios. about the issues, discuss tradeoffs this study, TVA anticipates that the 4. Risk characterization to determine association with different resource environmental effects which are various types of risk for different options, and work with TVA on what a examined will primarily be those at a resources. model resource portfolio will look like. regional level with some extending to a 5. A multi-attribute tradeoff analysis It is important that Valley residents and national or global level. This would which will help show tradeoffs that may all of those interested in planning the include such potential environmental have to be made in the selection of energy and stewardship future of the effects and issues as emissions of competing resource options. Tennessee Valley region participate in greenhouse gases, air quality, water 6. Finally, and most importantly, the this process. As part of both the scoping quality and quantity, waste generation study will evaluate how the various and draft EIS review processes, TVA and disposal, and ecological and options help TVA meet its legislated intends to seek out the views of and cultural resources. Socioeconomic mission and the constraints imposed by meet regularly with members of the impacts within the region that may Congress and the Administration public, representatives of various result from alternative energy and through various laws and regulations, stakeholder groups, and the public stewardship strategies will also be both specific to TVA and for our society review group. considered. The more site-specific in general. TVA will hold public information effects will not be addressed in detail These steps would be conducted in an meetings about the IRP EIS. The dates and would be addressed in later tiered iterative manner to test alternative and locations of the information assessments of specific implementing portfolios or strategies with the goal of meetings will be posted on the IRP EIS activities. identifying a number of alternative Web site and published in local and This list of issues is preliminary and strategies that are robust in the sense regional newspapers. is intended to facilitate public comment that they perform reasonably well under Comments on the scope of this EIS on the scope of this EIS. TVA invites a number of scenarios. should be submitted no later than the suggestions concerning the list of issues date given under the DATES section of which should be addressed. TVA also Scoping Process this notice. Any comments received, invites specific comments on the While most people value reliable, including names and addresses, will questions that will begin to be answered affordable, and environmentally become part of the administrative record by IRP: friendly electricity along with resource and will be available for public * How should TVA measure its protection and recreation opportunities, inspection. success in the future? different people place different weight After consideration of the comments * Should the current power on these values. Some are more received during this scoping period, generation mix (e.g., coal, nuclear concerned about energy prices, some on TVA will develop and distribute a power, natural gas, hydro, renewables) reliability of energy services, while document which will summarize public change? If so, how? others are more concerned about and agency comments that were * Should renewable power be environmental quality. Ultimately, it is received and identify the issues and available and added in the Valley at a TVA’s responsibility to balance all of alternatives to be addressed in the EIS significant scale? If so, how? these factors as it plans for the future. and identify the schedule for * How should energy efficiency and We believe strongly that if we get a completing the EIS process. Following demand response be considered in diverse group of interested people to analysis of the issues, TVA will prepare planning for future energy needs and participate, our plans for the next 10–20 a draft EIS for public review and how can TVA directly affect electricity years will best serve the Valley. comment. Notice of availability of the usage by consumers? Scoping, which is integral to the draft EIS will be published by the U.S. * What stewardship activities should process for implementing NEPA, Environmental Protection Agency in the TVA focus on over the next 10–20 provides an early and open process to Federal Register. TVA will solicit years? ensure that (1) issues are identified early comments on the draft EIS and hold

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public meetings to address it. TVA Office of Management and Budget Abstract: VA case managers use VA expects to release the draft EIS in early (OMB) for review and comment. The Form 28–0791 while evaluating the 2010. PRA submission describes the nature of independent living needs of veterans Dated: June 8, 2009. the information collection and its with severe disabilities. The data is used Anda A. Ray, expected cost and burden; it includes to determine the scope of the veteran’s the actual data collection instrument. independent living needs under the Senior Vice President, Office of Environment and Research. DATES: Comments must be submitted on Vocational Rehabilitation and Employment program. [FR Doc. E9–13986 Filed 6–12–09; 8:45 am] or before July 15, 2009. An agency may not conduct or BILLING CODE 8120–08–P ADDRESSES: Submit written comments on the collection of information through sponsor, and a person is not required to http://www.Regulations.gov or to VA’s respond to a collection of information OMB Desk Officer, Office of Information unless it displays a currently valid OMB DEPARTMENT OF VETERANS control number. The Federal Register AFFAIRS and Regulatory Affairs, New Executive Office Building, Room 10235, Notice with a 60-day comment period soliciting comments on this collection [OMB Control No. 2900–0681] Washington, DC 20503, (202) 395–7316. Please refer to ‘‘OMB Control No. 2900– of information was published on April Agency Information Collection (IL 0681’’ in any correspondence. 3, 2009, at pages 15325–15326. Affected Public: Individuals or Assessment) Activities Under OMB FOR FURTHER INFORMATION CONTACT: Review households. Denise McLamb, Enterprise Records Estimated Annual Burden: 2,500. AGENCY: Veterans Benefits Service (005R1B), Department of Estimated Average Burden per Administration, Department of Veterans Veterans Affairs, 810 Vermont Avenue, Respondent: 1 hour. Affairs. NW., Washington, DC 20420, (202) 461– Frequency of Response: One-time. 7485, FAX (202) 273–0443 or e-mail ACTION: Notice. Estimated Number of Respondents: [email protected]. Please refer to 2,500. SUMMARY: In compliance with the ‘‘OMB Control No. 2900–0681.’’ Dated: June 10, 2009. Paperwork Reduction Act (PRA) of 1995 SUPPLEMENTARY INFORMATION: (44 U.S.C. 3501–3521), this notice Title: Preliminary Independent Living By direction of the Secretary: announces that the Veterans Benefits (IL) Assessment, VA Form 28–0791. Denise McLamb, Administration, Department of Veterans OMB Control Number: 2900–0681. Program Analyst, Enterprise Records Service. Affairs, will submit the collection of Type of Review: Extension of a [FR Doc. E9–13984 Filed 6–12–09; 8:45 am] information abstracted below to the currently approved collection. BILLING CODE 8320–01–P

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Part II

Department of Commerce National Oceanic and Atmospheric Administration

50 CFR Part 218 Taking and Importing Marine Mammals; U.S. Navy Training in the Virginia Capes Range Complex, Taking and Importing Marine Mammals; U.S. Navy Training in the Jacksonville Range Complex, Taking and Importing Marine Mammals; U.S. Navy Training in the Cherry Point Range Complex; Final Rules

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DEPARTMENT OF COMMERCE Extensive Supplementary Information where such behavioral patterns are was provided in the proposed rule for abandoned or significantly altered [Level B National Oceanic and Atmospheric this activity, which was published in Harassment]. Administration the Federal Register on Friday, Summary of Request December 12, 2008 (73 FR 75631). This On March 17, 2008, NMFS received 50 CFR Part 218 information will not be reprinted here an application from the Navy requesting in its entirety; rather, all sections from RIN 0648–AW78 authorization for the take of 13 cetacean the proposed rule will be represented species incidental to the proposed herein and will contain either a Taking and Importing Marine training activities in the VACAPES summary of the material presented in Mammals; U.S. Navy Training in the Range Complex over the course of 5 the proposed rule or a note referencing Virginia Capes Range Complex years. These training activities are the page(s) in the proposed rule where classified as military readiness AGENCY: National Marine Fisheries the information may be found. Any activities. The Navy states that these Service (NMFS), National Oceanic and information that has changed since the training activities may cause various Atmospheric Administration (NOAA), proposed rule was published will be impacts to marine mammal species in Commerce. addressed herein. Additionally, this the proposed VACAPES Range Complex ACTION: Final rule. final rule contains a section that area. The Navy requests an responds to the comments received SUMMARY: NMFS, upon application from authorization to take individuals of during the public comment period. the U.S. Navy (Navy), is issuing these cetacean species by Level B regulations to govern the unintentional Background Harassment. Further, the Navy requests taking of marine mammals incidental to Sections 101(a)(5)(A) and (D) of the authorization to take 1 individual activities conducted at the Virginia MMPA (16 U.S.C. 1361 et seq.) direct Atlantic spotted, 20 common, 1 Capes (VACAPES) Range Complex for the Secretary of Commerce (Secretary) pantropical spotted, and 3 striped the period of June 2009 through June to allow, upon request, the incidental, dolphins per year by injury, and 1 2014. The Navy’s activities are but not intentional taking of marine individual common dolphin per year by considered military readiness activities mammals by U.S. citizens who engage mortality, as a result of the proposed pursuant to the Marine Mammal in a specified activity (other than training activities in the VACAPES Protection Act (MMPA), as amended by commercial fishing) during periods of Range Complex. Please refer to Table 29 the National Defense Authorization Act not more than five consecutive years of the LOA application for detailed for Fiscal Year 2004 (NDAA). These each if certain findings are made and information of the potential exposures regulations, which allow for the regulations are issued or, if the taking is from explosive ordnance (per year) for issuance of ‘‘Letters of Authorization’’ limited to harassment, notice of a marine mammals in the VACAPES (LOAs) for the incidental take of marine proposed authorization is provided to Range Complex. However, due to the mammals during the described activities the public for review. proposed mitigation and monitoring and specified timeframes, prescribe the Authorization shall be granted if measures, NMFS does not expect that permissible methods of taking and other NMFS finds that the taking will have a the proposed action would result in any means of effecting the least practicable negligible impact on the species or marine mammal mortality. Therefore, adverse impact on marine mammal stock(s), will not have an unmitigable no mortality would be authorized for species and their habitat, as well as adverse impact on the availability of the the Navy’s VACAPES Range Complex requirements pertaining to the species or stock(s) for subsistence uses, training activities. monitoring and reporting of such taking. and if the permissible methods of taking Background of Navy Request DATES: Effective June 8, 2009 and is and requirements pertaining to the applicable to the Navy on June 5, 2009 mitigation, monitoring and reporting of The proposed rule contains a through June 4, 2014. such taking are set forth. description of the Navy’s mission, their ADDRESSES: A copy of the Navy’s NMFS has defined ‘‘negligible responsibilities pursuant to Title 10 of application (which contains a list of the impact’’ in 50 CFR 216.103 as: the United States Code, and the specific references used in this document), purpose and need for the activities for An impact resulting from the specified which they requested incidental take NMFS’ Record of Decision (ROD), and activity that cannot be reasonably expected other documents cited herein may be to, and is not reasonably likely to, adversely authorization. The description obtained by writing to Michael Payne, affect the species or stock through effects on contained in the proposed rule has not Chief, Permits, Conservation and annual rates of recruitment or survival. changed (73 FR 75631; December 12, 2008). Education Division, Office of Protected The NDAA (Pub. L. 108–136) Resources, National Marine Fisheries removed the ‘‘small numbers’’ and Description of the Specified Activities Service, 1315 East-West Highway, Silver ‘‘specified geographical region’’ The proposed rule contains a Spring, MD 20910–3225 or by telephone limitations and amended the definition complete description of the Navy’s via the contact listed here (see FOR of ‘‘harassment’’ as it applies to a specified activities that are covered by FURTHER INFORMATION CONTACT). ‘‘military readiness activity’’ to read as these final regulations, and for which Additionally, the Navy’s LOA follows (Section 3(18)(B) of the MMPA): the associated incidental take of marine application may be obtained by visiting (i) Any act that injures or has the mammals will be authorized in the the Internet at: http:// significant potential to injure a marine related LOAs. The proposed rule www.nmfs.noaa.gov/pr/permits/ mammal or marine mammal stock in the wild describes the nature and number of the incidental.htm#applications. [Level A Harassment]; or training activities. These training (ii) Any act that disturbs or is likely to FOR FURTHER INFORMATION CONTACT: activities consist of surface warfare Shane Guan, Office of Protected disturb a marine mammal or marine mammal stock in the wild by causing disruption of [Missile Exercise (MISSILEX) and High- Resources, NMFS, (301) 713–2289, ext. natural behavioral patterns, including, but speed Anti-Radiation Missile Exercise 137. not limited to, migration, surfacing, nursing, (HARMEX)], mine warfare [Mine SUPPLEMENTARY INFORMATION: breeding, feeding, or sheltering, to a point Exercises (MINEX)], amphibious warfare

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[Firing Exercise (FIREX)], strike warfare the VACAPES Range Complex Study has not changed. Table 1 summarizes [Bombing Exercise (BOMBEX)], and Area. The narrative description of the the nature and levels of these planned vessel movement to, from and within action contained in the proposed rule activities.

TABLE 1—LEVELS OF TRAINING EVENTS INVOLVE EXPLOSIVES PLANNED IN THE VACAPES RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of events Duration per event

Missile Exercise MH–60S, HH–60H ...... AGM–114 (Hellfire missile) 60 sorties (60 missiles) ..... 1 hour. (MISSILEX) (Air to Sur- face). F/A–18, P–3C, and P–8A AGM–65 E/F (Maverick 20 sorties (20 missiles) ..... 1 hour. missile). Bombing Exercise F/A–18 ...... MK–83/GBU–32 [1,000 lb 5 events (20 bombs, 4 1 hour. (BOMBEX) (Air-to-Sur- High Explosive (HE) bombs/event). face, At-Sea). bomb]. Mine Neutralization ...... MH–60S ...... AMNS ...... 140 sorties (30 rounds) ..... 1.5 hours. EOD ...... 20 lb charges ...... 24 events ...... 6–8 hours. FIREX with IMPASS ...... CG, DDG ...... 5″ gun (IMPASS) ...... 22 events (858 HE rounds, 8 hours. 39 HE per event)).

VACAPES Range Complex description of the areas in which certain their frequency of occurrence. The The VACAPES Range Complex types of activities will occur. Table 2, description of the VACAPES Range proposed rule contains a description of included here, summarizes the areas in Complex Study Area in the proposed the VACAPES Study Area along with a which explosive events will occur and rule has not changed.

TABLE 2—NUMBER OF EVENTS UTILIZING MUNITIONS WITHIN THE VACAPES RANGE COMPLEX

Annual Sub-area Ordnance Winter Spring Summer Fall totals

MISSILEX ...... 80 Air-K ...... Hellfire ...... 11.25 11.25 11.25 11.25 ...... W–72A (2) ...... Hellfire ...... 3.75 3.75 3.75 3.75 ...... Air-K ...... Maverick ...... 5 5 5 5 ...... FIREX ...... 22 5C/D ...... 5″ rounds ...... 1.83 1.83 1.83 1.83 ...... 7C/D and 8C/D ...... 5″ rounds ...... 1.83 1.83 1.83 1.83 ...... 1C1/2 ...... 5″ rounds ...... 1.83 1.83 1.83 1.83 ...... MINEX ...... 54 W–50 UNDET ...... 5 LB* ...... 7.50 7.50 7.50 7.50 ...... W–50 UNDET ...... 20 LB ...... 4.00 4.00 12.00 4.00 ...... BOMBEX ...... 5 Air-K ...... MK–83** ...... 1.25 1.25 1.25 1.25 ...... * The use of 3.24 lb charges during AMNS training were conservatively modeled as 5 lb charges. ** One event using the MK–83 bombs consists of 4 bombs being dropped in succession. For example, in VACAPES Air-K there are 5 MK–83 events, which mean that a total of 20 bombs will be dropped per year.

Description of Marine Mammals in the marine mammal species listed as those species are expected to occur Area of the Specified Activities federally endangered under the regularly in the region. The proposed There are 34 marine mammal species Endangered Species Act (ESA) occur in rule also includes a discussion of the with possible or confirmed occurrence the VACAPES Range Complex: the methods used to estimate marine in the VACAPES Range Complex. As humpback whale, North Atlantic right mammal density in the VACAPES Study indicated in Table 3, there are 33 whale, sei whale, fin whale, blue whale, Area. The Description of Marine cetacean species (7 mysticetes and 26 and sperm whale. Although it is Mammals in the Area of the Specified odontocetes) and one pinniped species. possible that any of the 34 species of Activities section has not changed from Table 6 also includes the federal status marine mammals may occur in the what was in the proposed rule (73 FR of these marine mammal species. Six VACAPES Range Complex, only 24 of 75631, pages 75635–75636).

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE VACAPES RANGE COMPLEX

Family and scientific name Common name Federal status

Order Cetacea

Suborder Mysticeti (baleen whales)

Eubalaena glacialis ...... North Atlantic right whale ...... Endangered. Megaptera novaeangliae ...... Humpback whale ...... Endangered. Balaenoptera acutorostrata ...... Minke whale.

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TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE VACAPES RANGE COMPLEX—Continued

Family and scientific name Common name Federal status

B. brydei ...... Bryde’s whale. B. borealis ...... Sei whale ...... Endangered. B. physalus ...... Fin whale ...... Endangered. B. musculus ...... Blue whale ...... Endangered.

Suborder Odontoceti (toothed whales)

Physeter macrocephalus ...... Sperm whale Endangered. Kogia breviceps ...... Pygmy sperm whale. K. sima ...... Dwarf sperm whale. Ziphius cavirostris ...... Cuvier’s beaked whale. Mesoplodon minus ...... True’s beaked whale. M. europaeus ...... Gervais’ beaked whale. M. bidens ...... Sowerby’s beaked whale. M. densirostris ...... Blainville’s beaked whale. Steno bredanensis ...... Rough-toothed dolphin. Tursiops truncatus ...... Bottlenose dolphin. Stenella attenuata ...... Pantropical spotted dolphin. S. frontalis ...... Atlantic spotted dolphin. S. longirostris ...... Spinner dolphin. S. clymene ...... Clymene dolphin. S. coeruleoalba ...... Striped dolphin. Delphinus delphis ...... Common dolphin. Lagenodephis hosei ...... Fraser’s dolphin. Lagenorhynchus acutus ...... Atlantic white-sided dolphin. Grampus griseus ...... Risso’s dolphin. Peponocephala electra ...... Melon-headed whale. Feresa attenuata ...... Pygmy killer whale. Pseudorca crassidens ...... False killer whale. Orcinus orca ...... Killer whale. Globicephala melas ...... Long-finned pilot whale. G. macrorhynchus ...... Short-finned pilot whale. Phocoena phocoena ...... Harbor porpoise.

Order Carnivora

Suborder Pinnipedia

Phoca vitulina ...... Harbor seal.

Suborder Sirenia

Trichechus manatus ...... West Indian manatee.

Potential Impacts to Marine Mammal determine whether the specified activity contained in Potential Impacts to Species will have an unmitigable adverse impact Marine Mammal Species section from on the availability of the species or MISSILEX, BOMBEX, MINEX, and With respect to the MMPA, NMFS’ stock(s) for subsistence uses (however, FIREX from the proposed rule has not effects assessment serves four primary there are no subsistence communities in changed. purposes: (1) to prescribe the the VACAPES study area); and (4) to The information pertaining to permissible methods of taking (i.e., prescribe requirements pertaining to HARMEX has changed from the Level B Harassment (behavioral monitoring and reporting. Proposed Rule. Further analyses show harassment), Level A Harassment In the Potential Impacts to Marine that HARMEX would have no effects on (injury), or mortality, including an Mammal Species section of the marine mammals because these types of identification of the number and types proposed rule, NMFS included a missiles detonate 30–60 ft (9.1–18.3 m) of take that could occur by Level A or qualitative discussion of the different above the water surface. Therefore, they B harassment or mortality) and to ways that underwater explosive are not included in the underwater prescribe other means of effecting the detonations from MISSILEX, BOMBEX, explosive exposure modeling in the least practicable adverse impact on such MINEX, and FIREX may potentially Final Rule since no marine mammal species or stock and its habitat (i.e., affect marine mammals (some of which exposures are anticipated. mitigation); (2) to determine whether NMFS would not classify as Later, in the Estimated Take of Marine the specified activity will have a harassment). See 73 FR 75631; Mammals Section, NMFS relates and negligible impact on the affected species December 12, 2008; pages 75636–75646. quantifies the potential effects to marine or stocks of marine mammals (based on Marine mammals may experience direct mammals from underwater detonation the likelihood that the activity will physiological effects (such as threshold of explosives discussed here to the adversely affect the species or stock shift), acoustic masking, impaired MMPA definitions of Level A and Level through effects on annual rates of communications, stress responses, and B Harassment. NMFS has also recruitment or survival); (3) to behavioral disturbance. The information considered the effects of mortality on

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these species, although mortality is away. Avoidance is especially strong shipping and repeated approaches by neither expected, nor will it be when a boat heads directly toward the boats (such as the whale-watching areas authorized. whale.’’ of Stellwagen Bank), more and more Additional analyses on potential It is important to recognize that whales had P [positive] reactions to impacts to marine mammals from vessel behavioral responses to stimuli are familiar vessels, and they also movement within the VACAPES Range complex and influenced to varying occasionally approached other boats Complex Study Area are added below. degrees by a number of factors such as and yachts in the same ways.’’ species, behavioral contexts, In the case of the VACAPES Range Vessel Movement geographical regions, source Complex, naval vessel traffic is expected There are limited data concerning characteristics (moving or stationary, to be much lower than in areas where marine mammal behavioral responses to speed, direction, etc.), prior experience there are large shipping lanes and large vessel traffic and vessel noise, and a of the animal, and physical status of the numbers of fishing vessels and/or lack of consensus among scientists with animal. For example, studies have recreational vessels. Nevertheless, the respect to what these responses mean or shown that beluga whales reacted proposed action area is well traveled by whether they result in short-term or differently when exposed to vessel noise a variety of commercial and recreational long-term adverse effects. In those cases and traffic. In some cases, naı¨ve beluga vessels, so marine mammals in the area where there is a busy shipping lane or whales exhibited rapid swimming from are expected to be habituated to vessel where there is large amount of vessel ice-breaking vessels up to 80 km away, noise. traffic, marine mammals may and showed changes in surfacing, As described in the proposed rule, experience acoustic masking breathing, diving, and group operations involving vessel movements (Hildebrand, 2005) if they are present in composition in the Canadian high occur intermittently and are variable in the area (e.g., killer whales in Puget Arctic where vessel traffic is rare (Finley duration, ranging from a few hours up Sound; Foote et al., 2004; Holt et al., et al., 1990). In other cases, beluga to 2 weeks. These operations are widely 2008). In cases where vessels actively whales were more tolerant of vessels, dispersed throughout the VACAPES approach marine mammals (e.g., whale but differentially responsive by Range Complex OPAREA, which is a watching or dolphin watching boats), reducing their calling rates, to certain vast area encompassing 27,661 square scientists have documented that animals vessels and operating characteristics nautical miles (nm2) (an area exhibit altered behavior such as (especially older animals) in the St. approximately the size of Indiana). The increased swimming speed, erratic Lawrence River where vessel traffic is Navy logs about 1,400 total vessel days movement, and active avoidance common (Blane and Jaakson, 1994). In within the Study Area during a typical behavior (Bursk, 1983; Acevedo, 1991; Bristol Bay, Alaska, beluga whales year. Consequently, the density of ships Baker and MacGibbon, 1991; Trites and continued to feed when surrounded by within the Study Area at any given time Bain, 2000; Williams et al., 2002; fishing vessels and resisted dispersal is extremely low (i.e., less than 0.0004 Constantine et al., 2003), reduced blow even when purposefully harassed (Fish ships/nm2). interval (Ritcher et al., 2003), disruption and Vania, 1971). Moreover, naval vessels transiting the of normal social behaviors (Lusseau, In reviewing more than 25 years of study area or engaging in the training 2003; 2006), and the shift of behavioral whale observation data, Watkins (1986) exercises will not actively or activities which may increase energetic concluded that whale reactions to vessel intentionally approach a marine costs (Constantine et al., 2003; 2004)). A traffic were ‘‘modified by their previous mammal or change speed drastically. detailed review of marine mammal experience and current activity: Except under certain mitigation reactions to ships and boats is available habituation often occurred rapidly, measures that protect right whales and in Richardson et al. (1995). For each of attention to other stimuli or other marine mammals from vessel the marine mammals taxonomy groups, preoccupation with other activities strike, all vessels transit to, from, and Richardson et al. (1995) provided the sometimes overcame their interest or within the range complexes will be following assessment regarding cetacean wariness of stimuli.’’ Watkins noticed traveling at speeds generally ranging reactions to vessel traffic: that over the years of exposure to ships from 10 to 14 knots. Toothed whales: ‘‘In summary, in the Cape Cod area, minke whales The final rule contains additional toothed whales sometimes show no (Balaenoptera acutorostrata) changed mitigation measures requiring Navy avoidance reaction to vessels, or even from frequent positive (such as vessels to keep at least 500 yards (460 approach them. However, avoidance can approaching vessels) interest to m) away from any observed whale and occur, especially in response to vessels generally uninterested reactions; finback at least 200 yards (183 m) from marine of types used to chase or hunt the whales (B. physalus) changed from mammals other than whales, and avoid animals. This may cause temporary mostly negative (such as avoidance) to approaching animals head-on. Although displacement, but we know of no clear uninterested reactions; right whales the radiated sound from the vessels will evidence that toothed whales have (Eubalaena glacialis) apparently be audible to marine mammals over a abandoned significant parts of their continued the same variety of responses large distance, it is unlikely that animals range because of vessel traffic.’’ (negative, uninterested, and positive will respond behaviorally to low-level Baleen whales: ‘‘When baleen whales responses) with little change; and distant shipping noise as the animals in receive low-level sounds from distant or humpbacks (Megaptera novaeangliae) the area are likely to be habituated to stationary vessels, the sounds often dramatically changed from mixed such noises (Nowacek et al., 2004). In seem to be ignored. Some whales responses that were often negative to light of these facts, NMFS does not approach the sources of these sounds. often strongly positive reactions. expect the Navy’s vessel movements to When vessels approach whales slowly Watkins (1986) summarized that result in Level B harassment. and nonaggressively, whales often ‘‘whales near shore, even in regions exhibit slow and inconspicuous with low vessel traffic, generally have Mitigation avoidance maneuvers. In response to become less wary of boats and their In order to issue an incidental take strong or rapidly changing vessel noise, noises, and they have appeared to be authorization (ITA) under Section baleen whales often interrupt their less easily disturbed than previously. In 101(a)(5)(A) of the MMPA, NMFS must normal behavior and swim rapidly particular locations with intense prescribe regulations setting forth the

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‘‘permissible methods of taking biologically important areas, permanent suspended. Visual observation will occur for pursuant to such activity, and other destruction of habitat, or temporary approximately 45 minutes, or until the means of effecting the least practicable destruction/disturbance of habitat animal has been observed to have cleared the adverse impact on such species or stock during a biologically important time. area and is heading away from the buffer zone. and its habitat, paying particular (6) For monitoring directly related to attention to rookeries, mating grounds, mitigation—an increase in the For mitigation measures under and areas of similar significance.’’ The probability of detecting marine MINEX (73 FR 25631, page 25649), NDAA amended the MMPA as it relates mammals, thus allowing for more corrections were made to increase the to military readiness activities and the effective implementation of the buffer zone from 656 yards (600 m) to incidental take authorization process mitigation (shut-down zone, etc.). 700 yards (640 m). Therefore, Bullet 2 such that ‘‘least practicable adverse NMFS reviewed the Navy’s proposed of the MINEX mitigation measure reads impact’’ shall include consideration of mitigation measures, which included a as: personnel safety, practicality of careful balancing of the likely benefit of 2. Observers will survey the Zone of implementation, and impact on the any particular measure to the marine Influence (ZOI), a 700 yd (640 m) radius from effectiveness of the ‘‘military readiness mammals with the likely effect of that detonation location, for marine mammals activity.’’ The VACAPES Range measure on personnel safety, from all participating vessels during the Complex training activities described in practicality of implementation, and entire operation. A survey of the ZOI the proposed rule are considered impact on the ‘‘military-readiness (minimum of 3 parallel tracklines 219 yd [200 m] apart) using support craft will be military readiness activities. activity.’’ NMFS reviewed the Navy’s proposed conducted at the detonation location 30 The Navy’s proposed mitigation minutes prior through 30 minutes post VACAPES Range Complex training measures were described in detail in the detonation. Aerial survey support will be activities and the proposed VACAPES proposed rule (73 FR 75631, pages utilized whenever assets are available. Range Complex mitigation measures 75646–75649). The Navy’s measures presented in the Navy’s application to The buffer zones for FIREX and address personnel training, lookout and MINEX activities were incorrectly determine whether the activities and watchstander responsibilities, operating mitigation measures were capable of noticed in the proposed rule for the procedures for training activities using VACAPES Range Complex. NMFS has achieving the least practicable adverse underwater detonations of explosives effect on marine mammals. consulted with the Navy and the Navy and firing exercises, and mitigation has stated that the buffer zones should Any mitigation measure prescribed by related to vessel traffic and the North NMFS should be known to accomplish, be corrected to ensure consistency for Atlantic right whale. No changes have all Navy FIREX and MINEX activities have a reasonable likelihood of been made to the mitigation measures accomplishing (based on current across multiple range complexes. The described in the proposed rule except as buffer zones identified in this final rule science), or contribute to the noted below. accomplishment of one or more of the are consistent with those established in Regarding nighttime monitoring in the the Southern California Range Complex general goals listed below: Personnel Training Lookouts section (73 (1) Avoidance or minimization of final rule (74 FR 2882; January 21, FR 25631, page 25647), slight wording injury or death of marine mammals 2009). NMFS does not believe that a changes have been made for Bullet 6 to wherever possible (goals b, c, and d may decrease in the FIREX buffer zone of 40 read: ‘‘At night, to increase contribute to this goal). yards would affect, in any significant (2) A reduction in the numbers of effectiveness, lookouts would not way, the Navy’s ability to detect marine marine mammals (total number or continuously sweep the horizon with mammals or provide adequate number at biologically important time their eyes. Instead, lookouts would scan protection to marine mammals that may or location) exposed to underwater the horizon in a series of movements be in the vicinity of a FIREX activity. detonations or other activities expected that would allow their eyes to come to Moreover, an increase in the MINEX to result in the take of marine mammals periodic rests as they scan the sector. buffer zone will further minimize any (this goal may contribute to a, above, or When visually searching at night, they adverse effects that marine mammals to reducing harassment takes only). would look a little to one side and out could experience as a result of the (3) A reduction in the number of of the corners of their eyes, paying MINEX activity. times (total number or number at attention to the things on the outer In response to a comment from the biologically important time or location) edges of their field of vision. Lookouts Marine Mammal Commission, NMFS individuals would be exposed to will also have night vision devices will require the Navy to suspend its underwater detonations or other available for use.’’ activities immediately if a marine activities expected to result in the take For mitigation measures under FIREX mammal is injured or killed as a result of marine mammals (this goal may (73 FR 25631, page 25648), corrections of the proposed Navy training activities contribute to a, above, or to reducing were made to reduce the buffer zone (e.g., instances in which it is clear that harassment takes only). from 640 yards (585 m) to 600 yards munitions explosions caused the injury (4) A reduction in the intensity of (548 m). Therefore, Bullets 3 and 4 of or death), the Navy shall suspend its exposures (either total number or the FIREX mitigation measure read as: activities immediately and report such number at biologically important time 3. ‘‘Big Eyes’’ on the ship will be used to incident to NMFS. or location) to underwater detonations monitor a 600 yd (548 m) buffer zone around In addition, regarding the North or other activities expected to result in the target area for marine mammals during Atlantic right whale (NARW) vessel the take of marine mammals (this goal naval-gunfire events. Due to the distance collision measures, NMFS expanded the may contribute to a, above, or to between the firing position and the buffer final rule to include vessel collision zone, lookouts are only expected to visually avoidance measures for the South reducing the severity of harassment detect breaching whales, whale blows, and takes only). large pods of dolphins and porpoises. Atlantic and the Northeast Atlantic to be (5) A reduction in adverse effects to 4. Ships will not fire on the target if marine consistent with the U.S. Navy’s Atlantic marine mammal habitat, paying special mammals are detected within or approaching Fleet Active Sonar Training (AFAST) attention to the food base, activities that the 600 yd (548 m) buffer zone. If marine rule. Although the VACAPES Range block or limit passage to or from mammals are present, operations would be Complex is outside the South Atlantic

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and the Northeast Atlantic region, the (4) An increased knowledge of the if marine mammals are in the area Navy is required to comply with the affected species. before and/or after a detonation event. same ship collision measures while (5) An increase in our understanding (D) When conducting a particular transiting and conducting exercises of the effectiveness of certain mitigation survey, the survey team shall collect: within specific NARW areas along the and monitoring measures. • Location of sighting; • East Coast. The specific vessel collision (6) A better understanding and record Species (if not possible, indicate measures in the Northeast Atlantic of the manner in which the authorized whale, dolphin or pinniped); • region are listed in the regulatory text of entity complies with the incidental take Number of individuals; the final rule. • Whether calves were observed; authorization. • NMFS has determined that these Initial detection sensor; • mitigation measures (which include a Proposed Monitoring Plan for the Length of time observers suite of measures that specifically VACAPES Range Complex Study Area maintained visual contact with marine mammal; address vessel transit and the NARW) As NMFS indicated in the proposed • are adequate means of effecting the least rule, the Navy has (with input from Wave height; • Visibility; practicable adverse impacts on marine NMFS) fleshed out the details of and • mammal species or stocks and their made improvements to the VACAPES Whether sighting was before, habitat while also considering personnel Range Complex Monitoring Plan. during, or after detonations/exercise, safety, practicality of implementation, Additionally, NMFS and the Navy have and how many minutes before or after; • Distance of marine mammal from and impact on the effectiveness of the incorporated a suggestion from the actual detonations (or target spot if not military readiness activity. public, which recommended the Navy yet detonated); hold a peer review workshop to discuss Monitoring • Observed behavior—Watchstanders the Navy’s Monitoring Plans for the will report, in plain language and In order to issue an ITA for an multiple range complexes and training without trying to categorize in any way, activity, Section 101(a)(5)(A) of the exercises in which the Navy would the observed behavior of the animal(s) MMPA states that NMFS must set forth receive ITAs (see Monitoring Workshop (such as animal closing to bow ride, ‘‘requirements pertaining to the section). The final VACAPES Range paralleling course/speed, floating on monitoring and reporting of such Complex Monitoring Plan, which is surface and not swimming etc.), taking.’’ The MMPA implementing summarized below, may be viewed at including speed and direction; regulations at 50 CFR 216.104 (a)(13) http://www.nmfs.noaa.gov/pr/permits/ • Resulting mitigation indicate that requests for LOAs must incidental.htm#applications. The Navy implementation—Indicate whether include the suggested means of plans to implement all of the explosive detonations were delayed, accomplishing the necessary monitoring components of the Monitoring Plan; ceased, modified, or not modified due to and reporting that will result in however, only the marine mammal marine mammal presence and for how increased knowledge of the species and components (not the sea turtle long; and of the level of taking or impacts on components) will be required by the • If observation occurs while populations of marine mammals that are MMPA regulations and associated explosives are detonating in the water, expected to be present. LOAs. indicate munition type in use at time of Monitoring measures prescribed by A summary of the monitoring marine mammal detection (e.g., were NMFS should accomplish one or more methods required for use during the 5-inch guns actually firing when the of the following general goals: training events in the VACAPES Range animals were sighted? Did animals enter (1) An increase in the probability of Complex are described below. These an area 2 minutes after a huge explosion detecting marine mammals, both within methods include a combination of went off?). the safety zone (thus allowing for more individual elements that are designed to effective implementation of the allow a comprehensive assessment. II. Passive Acoustic Monitoring mitigation) and in general to generate I. Vessel or Aerial Surveys The Navy is required to conduct more data to contribute to the effects passive acoustic monitoring when analyses. (A) The Holder of this Authorization operationally feasible. (2) An increase in our understanding shall visually survey a minimum of 2 (A) Any time a towed hydrophone of how many marine mammals are explosive events per year, one of which array is employed during shipboard likely to be exposed to levels of shall be a multiple detonation event. surveys the towed array shall be underwater detonations or other stimuli One of the vessel or aerial surveys deployed during daylight hours for each that we associate with specific adverse should involve professionally trained of the days the ship is at sea. effects, such as behavioral harassment, marine mammal observers (MMOs). (B) The towed hydrophone array shall temporary threshold shift of hearing (B) If operationally feasible, for be used to supplement the ship-based sensitivity (TTS), or permanent specified training events, aerial or vessel systematic line-transect surveys threshold shift of hearing sensitivity surveys shall be used 1–2 days prior to, (particularly for species such as beaked (PTS). during (if reasonably safe), and 1–5 days whales that are rarely seen). (3) An increase in our understanding post detonation. of how marine mammals respond (C) Surveys shall include any III. Marine Mammal Observers on Navy (behaviorally or physiologically) to specified exclusion zone around a Platforms underwater detonations or other stimuli particular detonation point plus 2,000 (A) Marine mammal observers expected to result in take and how yards beyond the border of the (MMOs) selected for aerial or vessel anticipated adverse effects on exclusion zone (i.e., the circumference survey shall be placed on a Navy individuals (in different ways and to of the area from the border of the platform during one of the exercises varying degrees) may impact the exclusion zone extending 2,000 yards being monitored per year. The population, species, or stock outwards). For vessel based surveys a remaining designated exercise(s) shall (specifically through effects on annual passive acoustic system (hydrophone or be monitored by the Navy lookouts/ rates of recruitment or survival). towed array) could be used to determine watchstanders.

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(B) The MMO must possess expertise NMFS received a recommendation that SOCAL); instead it is intended to in species identification of regional a workshop or panel be convened to provide the overarching coordination marine mammal species and experience solicit input on the monitoring plan that will support compilation of data collecting behavioral data. from researchers, experts, and other from both range-specific monitoring (C) MMOs shall not be placed aboard interested parties. The VACAPES Range plans as well as Navy funded research Navy platforms for every Navy training Complex proposed rule included an and development (R&D) studies. The event or major exercise, but during adaptive management component and ICMP will coordinate the monitoring specifically identified opportunities both NMFS and the Navy believe that a program’s progress towards meeting its deemed appropriate for data collection workshop would provide a means for goals and developing a data efforts. The events selected for MMO Navy and NMFS to consider input from management plan. A program review participation shall take into account participants in determining whether board is also being considered to safety, logistics, and operational (and if so, how) to modify monitoring provide additional guidance. The ICMP concerns. techniques to more effectively will be evaluated annually to provide a (D) MMOs shall observe from the accomplish the goals of monitoring set matrix for progress and goals for the same height above water as the forth earlier in the document. NMFS following year, and will make lookouts. and the Navy believe that this workshop recommendations on adaptive (E) The MMOs shall not be part of the concept is valuable in relation to all of management for refinement and analysis Navy’s formal reporting chain of the Range Complexes and major training of the monitoring methods. command during their data collection exercise rules and LOAs that NMFS is The primary objectives of the ICMP efforts; Navy lookouts shall continue to working on with the Navy at this time, are to: serve as the primary reporting means and consequently this single Monitoring • Monitor and assess the effects of within the Navy chain of command for Workshop will be included as a Navy activities on protected species; marine mammal sightings. The only component of all of the rules and LOAs • Ensure that data collected at exception is that if an animal is that NMFS will be processing for the multiple locations is collected in a observed within the shutdown zone that Navy in the next year or so. manner that allows comparison between has not been observed by the lookout, The Navy, with guidance and support and among different geographic the MMO shall inform the lookout of the from NMFS, will convene a Monitoring locations; • sighting, and the lookout shall take the Workshop, including marine mammal Assess the efficacy and practicality appropriate action through the chain of and acoustic experts as well as other of the monitoring and mitigation interested parties, in 2011. The techniques; command. • (F) The MMOs shall collect species Monitoring Workshop participants will Add to the overall knowledge-base identification, behavior, direction of review the monitoring results from the of marine species and the effects of travel relative to the Navy platform, and previous two years of monitoring Navy activities on marine species. distance first observed. All MMO pursuant to the VACAPES Range The ICMP will be used both as: (1) A sightings shall be conducted according Complex rule as well as monitoring planning tool to focus Navy monitoring to a standard operating procedure. results from other Navy rules and LOAs priorities (pursuant to ESA/MMPA Information collected by MMOs should (e.g., AFAST, SOCAL, HRC, and other requirements) across Navy Range be the same as those collected by Navy rules). The Monitoring Workshop Complexes and Exercises; and (2) an lookout/watchstanders described above. participants would provide their adaptive management tool, through the The Monitoring Plan for VACAPES individual recommendations to the consolidation and analysis of the Navy’s Range Complex has been designed as a Navy and NMFS on the monitoring monitoring and watchstander data, as collection of focused ‘‘studies’’ plan(s) after also considering the current well as new information from other (described fully in the VACAPES science (including Navy research and Navy programs (e.g., R&D), and other Monitoring Plan) to gather data that will development) and working within the appropriate newly published allow the Navy to address the following framework of available resources and information. questions: feasibility of implementation. NMFS In combination with the 2011 (a) What are the behavioral responses and the Navy would then analyze the Monitoring Workshop and the adaptive of marine mammals and sea turtles that input from the Monitoring Workshop management component of the are exposed to explosives? participants and determine the best way VACAPES Range Complex rule and the (b) Is the Navy’s suite of mitigation forward from a national perspective. other planned Navy rules (e.g. measures effective at avoiding injury Subsequent to the Monitoring Jacksonville Range Complex, Cherry and mortality of marine mammals and Workshop, modifications would be Point Range Complex, etc.), the ICMP sea turtles? applied to monitoring plans as could potentially provide a framework Data gathered in these studies will be appropriate. for restructuring the monitoring plans collected by qualified, professional and allocating monitoring effort based Integrated Comprehensive Monitoring marine mammal biologists or trained on the value of particular specific Program Navy lookouts/watchstanders that are monitoring proposals (in terms of the experts in their field. This monitoring In addition to the site-specific degree to which results would likely plan has been designed to gather data on Monitoring Plan for the VACAPES contribute to stated monitoring goals, as all species of marine mammals that are Range Complex, the Navy will complete well as the likely technical success of observed in the VACAPES Range the Integrated Comprehensive the monitoring based on a review of past Complex study area. Monitoring Program (ICMP) Plan by the monitoring results) that have been end of 2009. The ICMP is currently in developed through the ICMP Monitoring Workshop development by the Navy, with Chief of framework, instead of allocating based During the public comment period on Naval Operations Environmental on maintaining an equal (or past proposed rules for Navy actions Readiness Division (CNO–N45) having commensurate to effects) distribution of (such as the Hawaii Range Complex the lead. The program does not monitoring effort across range (HRC), and Southern California Range duplicate the monitoring plans for complexes. For example, if careful Complex (SOCAL) proposed rules), individual areas (e.g. AFAST, HRC, prioritization and planning through the

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ICMP (which would include a review of • Findings of the Workshop that the be classified and not releasable to the both past monitoring results and current Navy will convene in 2011 to analyze public. scientific developments) were to show monitoring results to date, review NMFS will work with the Navy to that a large, intense monitoring effort in current science, and recommend develop tables that allow for efficient Hawaii would likely provide extensive, modifications, as appropriate to the submission of the information required robust and much-needed data that could monitoring protocols to increase below. be used to understand the effects of monitoring effectiveness. General Notification of Injured or Dead • Compiled results of Navy funded sonar throughout different geographical Marine Mammals areas, it may be appropriate to have research and development (R&D) studies other range complexes dedicate money, (presented pursuant to the ICMP, which Navy personnel will ensure that resources, or staff to the specific is discussed elsewhere in this NMFS (regional stranding coordinator) monitoring proposal identified as ‘‘high document) is notified immediately (or as soon as • priority’’ by the Navy and NMFS, in lieu Results from specific stranding operational security allows) if an of focusing on smaller, lower priority investigations (either from VACAPES injured or dead marine mammal is Range Complex or other locations) found during or shortly after, and in the projects divided throughout their home • range complexes. Results from general marine vicinity of, any Navy training exercise The ICMP will identify: mammal and sound research (funded by utilizing underwater explosive the Navy or otherwise) • A means by which NMFS and the detonations or other activities. The • Any information which reveals that Navy will provide NMFS with species Navy would jointly consider prior years’ marine mammals may have been taken monitoring results and advancing or description of the animal(s), the in a manner, extent or number not condition of the animal(s) (including science to determine if modifications authorized by these regulations or are needed in mitigation or monitoring carcass condition if the animal is dead), subsequent Letters of Authorization location, time of first discovery, measures to better effect the goals laid Mitigation measures could be out in the Mitigation and Monitoring observed behaviors (if alive), and photo modified or added (or deleted) if new or video (if available). sections of the VACAPES Range data suggests that such modifications Complex rule. would have (or do not have) a Annual VACAPES Range Complex • Guidelines for prioritizing reasonable likelihood of accomplishing Monitoring Plan Report monitoring projects the goals of mitigation laid out in this The Navy shall submit a report • If, as a result of the workshop and final rule and if the measures are annually on March 1 describing the similar to the example described in the practicable. NMFS would also implementation and results (through paragraph above, the Navy and NMFS coordinate with the Navy to modify or January 1 of the same year) of the decide it is appropriate to restructure add to (or delete) the existing VACAPES Range Complex Monitoring the monitoring plans for multiple ranges monitoring requirements if the new data Plan, described above. Data collection such that they are no longer evenly suggest that the addition of (or deletion methods will be standardized across allocated (by rule), but rather focused on of) a particular measure would more range complexes to allow for priority monitoring projects that are not effectively accomplish the goals of comparison in different geographic necessarily tied to the geographic area monitoring laid out in this final rule. locations. Although additional addressed in the rule, the ICMP will be The reporting requirements associated information will also be gathered, the modified to include a very clear and with this rule are designed to provide marine mammal observers (MMOs) unclassified record-keeping system that NMFS with monitoring data from the collecting marine mammal data will allow NMFS and the public to see previous year to allow NMFS to pursuant to the VACAPES Range how each range complex/project is consider the data and issue annual Complex Monitoring Plan shall, at a contributing to all of the ongoing LOAs. NMFS and the Navy will meet minimum, provide the same marine monitoring programs (resources, effort, annually, prior to LOA issuance, to mammal observation data required in money, etc.). discuss the monitoring reports, Navy the major range complex training Adaptive Management R&D developments, and current science exercises section of the Annual and whether mitigation or monitoring VACAPES Range Complex Exercise The final regulations governing the modifications are appropriate. Report referenced below. take of marine mammals incidental to The VACAPES Range Complex Reporting Navy’s VACAPES Range Complex Monitoring Plan Report may be exercises contain an adaptive In order to issue an ITA for an provided to NMFS within a larger report management component. The use of activity, Section 101(a)(5)(A) of the that includes the required Monitoring adaptive management will give NMFS MMPA states that NMFS must set forth Plan Reports from multiple Range the ability to consider new data from ‘‘requirements pertaining to the Complexes. different sources to determine (in monitoring and reporting of such coordination with the Navy) on an taking’’. Effective reporting is critical to Annual VACAPES Range Complex annual basis if mitigation or monitoring ensure compliance with the terms and Exercise Report measures should be modified or added conditions of a LOA, and to provide The Navy is in the process of (or deleted) if new data suggests that NMFS and the Navy with data of the improving the methods used to track such modifications are appropriate (or highest quality based on the required explosives used to provide increased are not appropriate) for subsequent monitoring. As NMFS noted in its granularity. The Navy will provide the annual LOAs. proposed rule, additional detail has information described below for all of The following are some of the been added to the reporting their explosive exercises. Until the Navy possible sources of applicable data: requirements since they were outlined is able to report in full the information • Results from the Navy’s monitoring in the proposed rule. The updated below, they will provide an annual from the previous year (either from reporting requirements are all included update on the Navy’s explosive tracking VACAPES Range Complex or other below. A subset of the information methods, including improvements from locations) provided in the monitoring reports may the previous year.

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(i) Total annual number of each type and NMFS’ estimates of maximum or confirmed occurrence in the of explosive exercise (of those identified annual takes for the VACAPES Range VACAPES Range Complex. As indicated as part of the ‘‘specified activity’’ in this Complex training exercises. The in the proposed rule, there are 33 final rule) conducted in the VACAPES perceived differences the Commission cetacean species and one pinniped Range Complex. raised may be the differences between species (harbor seal). Harp and gray (ii) Total annual expended/detonated the Navy’s initial LOA application and seals occur primarily in the North rounds (missiles, bombs, etc.) for each its subsequent addendum. The Navy Atlantic, with the former species found explosive type. states that further analyses on the mostly in the Arctic region. Although VACAPES Range Complex 5-yr impacts from the proposed action and there have been increased anecdotal the reduction of BOMBEX exercises are sightings of these species in the mid- Comprehensive Report the reason for the change of take Atlantic coastal waters, their presence The Navy shall submit to NMFS a estimates. Specifically, the Navy states in the mid-Atlantic region is still very draft report that analyzes and that ‘‘HARM missile explodes no less rare (Waring et al., 2008). summarizes all of the multi-year marine than 30 ft above the water, it is assumed Comment 4: The VDGIF states that the mammal information gathered during the amount of acoustic energy entering species take list appears to be accurate; the VACAPES Range Complex exercises the water would be negligible, so however, the number of animals for which annual reports are required exposures from that weapon should be predicted to be affected for both Level (Annual VACAPES Range Complex removed from the MISSILEX totals. A and Level B harassment are probably Exercise Reports and VACAPES Range Secondly, the size of the BOMBEX underestimated, because the species Complex Monitoring Plan Reports). This location was reduced to avoid important density data from which take estimates report will be submitted at the end of fishing areas, the North Atlantic Right are derived are based on too few data. the fourth year of the rule (May 2013), Whale migratory corridor, and the Therefore, no marine mammal species covering activities that have occurred Norfolk Canyon area which lowered should be considered unlikely to be through December 1, 2012. potential exposures for certain species.’’ affected just because there are no density data available (e.g., beaked Comments and Responses The amendment is posted on NMFS incident take Web site at http:// whales). Since all of the species on the On December 12, 2008, NMFS www.nmfs.noaa.gov/pr/permits/ list exist in the Virginia and North published a proposed rule (73 FR incidental.htm. Carolina Outer Banks stranding records, 75631) in response to the Navy’s request Comment 2: The Commission collected and kept by the Virginia to take marine mammals incidental to recommends that NMFS include in its Aquarium Stranding Response Program, military readiness training in the authorization the number of lethal takes the VDGIF recommends that all species VACAPES Range Complex study area and takes by Level A harassment on the take list should be considered and requested comments, information requested by the Navy and regularly susceptible to Level B harassment year and suggestions concerning the request. confer with the Navy to monitor the round. The IFAW states that if one of During the 30-day public comment actual number of such takes to ensure these animals not included in the period, NMFS received comments from that they do not exceed the authorized incidental take list is present in the area 1 private citizen, comments from the number. of testing, there is a higher probability Marine Mammal Commission Response: NMFS agrees with the that the animal will be struck, and that (Commission), comments from the Commission. NMFS has, through this the assumption that one third of the Commonwealth of Virginia Department final rule, included the authorized cetacean species in the area will not be of Environmental Quality (Virginia numbers of marine mammal takes and exposed nor affected by noise represents DEQ, including the Department of Game the manner of take (i.e., lethal, Level A an oversight in the analysis of potential and Inland Fisheries (VDGIF) and the or Level B). In addition, monitoring and takes. Department of Conservation and reporting measures are prescribed to Response: NMFS does not agree with Recreation), comments from the ensure that all takes as a result of the the VDGIF and IFAW’s assessment. The International Fund for Animal Welfare, training activities are accounted for and most current stock assessment reports and comments from the Natural documented. The MMOs and Navy’s (Waring et al., 2008) were used to Resources Defense Council (on behalf of lookouts/watchstanders will report any calculate density estimates. As itself, The Humane Society of the sightings of marine mammals in the take summarized in the proposed rule and United States, Whale and Dolphin zone through the chain of command. described more fully in the Navy’s FEIS, Conservation Society, Cetacean Society Furthermore, the Navy is required to the Navy used the best data and International, Ocean Futures Society, submit an Annual VACAPES Range methods available to calculate density, Jean-Michel Cousteau). The comments Complex Monitoring Plan Report. Prior including other literature as well as are summarized and sorted into general to issuing any subsequent LOAs, NMFS habitat modeling that considered topic areas and are addressed below. will review the Navy’s monitoring bathymetry, distance from shelf break, Full copies of the comment letters may efforts and data from the previous year sea surface temperature, and be accessed at http:// to determine whether any new measures Chlorophyll a concentration. All spatial www.regulations.gov. will be necessary or a modification to models and density estimates were prior year’s measures. reviewed by NMFS technical staff. The MMPA Concerns Comment 3: The Virginia DEQ Navy’s model utilizes uniform density, Comment 1: The Commission and recommends that NMFS develop the but it also divides the east coast into IFAW point out that there are regulations to reflect harbor seal, harp meaningful sections, such as on-shelf differences between the Navy’s and seal, and gray seal as their occurrence in and off-shelf and the different NMFS’ estimates of maximum annual the inshore and nearshore waters of the OPAREAS. takes for the proposed exercises in the mid-Atlantic region are becoming more Although stranding records indicate VACAPES range complex and that these frequent in the fall and winter months. that certain species may be found dead differences should be reconciled. Response: Based on the analyses by or injured in the Virginia area, this does Response: NMFS does not believe the Navy and NMFS, there are 34 not mean that these species are there are differences between the Navy’s marine mammal species with possible normally distributed in this area.

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Rather, certain stranded species are may far exceed the sum of its parts. 7 of the ESA, on how their activities likely more common in other geographic Further research is needed before claims may affect listed species. NMFS regions and due to their death or injury can be made as to the impacts of acknowledges that the Navy already in those areas, they may drift and wash multiple explosions on marine provides guidance to vessel operators ashore in the Virginia area. mammals. and fleets with regard to conservation NMFS does not agree that all species Response: NMFS does not agree with measures to protect right whales and identified in a stranding list would be the IFAW’s assessment. Although few other endangered species, as well as affected by the proposed activity. As scientific data are currently available on contribute to conservation efforts noted above, NMFS relied on the best the behavioral effects of explosive generally. available data to ascertain density ordnance on marine mammals, studies For the proposed VACAPES Range estimates. There are certain species for of marine mammal reactions to intense Complex training activities, the Navy which estimates are unavailable because underwater sounds (Finneran et al., has developed a series of mitigation their presence in the VACAPES Range 2000; Schlundt et al., 2000; Finneran measures that closely follow NMFS’ Complex Study Area is rare (e.g., and Schlundt, 2004), studies of ship strike rule. These mitigation Bryde’s whale and false killer whale are underwater detonations on human measures are described in the Proposed not reported in NMFS stock assessment divers and territorial mammals (Gaspin, Mitigation Measures section of the reports (SARs) for the U.S. Atlantic and 1983; Goertner, 1982), studies on the proposed rule (73 FR 76578; December Gulf of Mexico regions for the stock auditory anatomy of marine mammals 17, 2008). In addition, NMFS worked assessment). NMFS considers it unlikely (Ketten, 1998), and studies on source with the Navy regarding their vessel that species whose presence in the characterization of underwater operations to determine where ESA action area is rare would be affected by explosions (Cole, 1948; Gaspin and section 7 consultations would be the proposed activities. Shuler, 1971; Rogers, 1977; Urick, 1983) appropriate. For species in which NMFS possesses were reviewed. Based on the Comment 7: The Commission density data, the Navy conducted conclusions of these studies in terms of recommends that if a serious injury or modeling to calculate the potential takes the impact ranges and levels from death occurs and that injury or death of these marine mammals. As described different explosives and their acoustic could have resulted from the authorized in the proposed rule, estimating the take impacts, NMFS and the Navy Navy operations, NMFS and Navy that could result from the proposed determined the use of explosive jointly investigate the circumstances activities entails the following four ordnance and underwater detonations and steps needed to avoid similar steps: propagation model estimates in the Navy’s VACAPES Range Complex occurrences. animals exposed to sources at different (including implementation of mitigation Response: NMFS concurs with the levels; further modeling determines the and monitoring measures), would result Commission’s recommendation and will number of exposures to levels indicated in only short-term effects to most work with the Navy to address such an in the criteria above (i.e., number of individuals exposed. These analyses, occurrence if and when it arises. takes); post-modeling corrections refine including the impact analyses on Comment 8: The Virginia DEQ and estimates to make them more accurate; multiple explosions, were described in IFAW state that they note that mitigation is taken into consideration. detail in Appendix A ‘‘Draft Technical mitigation measures for most training Detailed analyses regarding the models Risk Assessment for the Use of exercises are largely comprised of used, the assumptions used in the Underwater Explosives in the Virginia maintaining lookouts or watchstanders models, and the process of estimating Capes (VACAPES) Range Complex’’ in to look for marine mammals, sea turtles, take is available in Appendix J of the the Navy’s LOA application and were rafts of sargassum grass and other Navy’s EIS for the VACAPES Range referenced in the proposed rule (73 FR indicators of biological activity in the Complex. The Navy’s model revealed 75631; December 12, 2008). buffer zones or zones of impact. As that species such as blue whale, sei such, most mitigation measures rely whale, spinner dolphin, Fraser’s Mitigation entirely on the observers’ ability to dolphin, Atlantic white-sided dolphin, Comment 6: The Commission detect sea turtles, marine mammals, and harbor porpoise, and harbor seals would recommends that NMFS include in the indicators of their presence such as not be taken by the proposed activities final rule a requirement that, in all but sargassum grass under all conditions because their presence in the VACAPES emergency situations or where the need (e.g., high seas, after dark, storms, etc.). Range Complex Study Area is rare. for realistic training requires greater The IFAW states that this mitigation speed or maneuverability, the Navy strategy is insufficient for detecting right Acoustic Impacts abide by the seasonal restrictions whales in the vicinity of Navy training Comment 5: The IFAW states that the applicable to other vessels under NMFS’ exercises. Navy failed to cite any scientific data to ship-speed regulations (50 CFR 224.105) Response: NMFS does not agree with support the claim that ‘‘explosive to reduce the risk of ship collisions with the Virginia DEQ and IFAW’s ordnance and underwater detonations right whales. assessment. Although visual monitoring would result in only short-term effects Response: NMFS does not agree with by lookouts or watchstanders is an to most individuals exposed.’’ The the Commission recommendation. important component of monitoring IFAW also states that FIREX and NMFS’ final rule on ship speed measures for the Navy’s VACAPES BOMBEX yield a novel situation for restriction does not apply to vessels Complex Range training exercises, it is impact analysis since they employ operated by U.S. Federal agencies. not the only mitigation measure for multiple explosions, and that there is no NMFS, in consultation with other most training exercises. Other existing data on the impacts of multiple Federal agencies, has determined that mitigation and monitoring measures are explosions and therefore potential the national security, navigational, and also proposed to reduce any potential impacts had to be extrapolated from human safety missions of some agencies impacts to marine mammals that would single explosion testing. The IFAW may be compromised by mandatory result from the proposed training further states that although a detailed vessel speed restrictions. However, this activities. These include establishing modeling system was developed, the exemption will not relieve the Navy of safety zones for all exercises involving cumulative effect of multiple explosions its obligations to consult, under section underwater detonations (FIREX,

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BOMBEX, MINEX, and MISSILEX), Response: Comments noted. would incorporate any changes into aerial surveys of the action area, future LOAs and future rules as Monitoring and Reporting limiting certain exercises (BOMBEX, necessary. NMFS has statutory FIREX, and MINEX) to daylight hours, Comment 11: The Commission responsibility to prescribe regulations etc. In addition, Navy lookouts or recommends that NMFS work with the pertaining to mitigation, monitoring, watchstanders are specifically trained to Navy to design studies to collect and and reporting, and will, in coordination detect anomalies in the water around analyze data necessary to characterize with the Navy, develop the most the ship and both the safety of Navy the risk of collisions with right whales effective and appropriate mitigation, personnel and success in the training by Navy vessels. monitoring, and reporting protocols for exercise depend on the lookout being Response: Comment noted. The future authorizations. able to detect objects (e.g., marine reporting conditions for the Navy’s In addition, NMFS has been working mammals) effectively around the ship. training activities require the Navy to with the Navy throughout the Additionally, NMFS has identified report all marine mammal (right whale rulemaking process to develop a series ports located in the western Atlantic included) sighting information during of mitigation, monitoring, and reporting Ocean, offshore of the southeastern exercises. This information includes the protocols. NMFS believes that the United States, where vessel transit location of sightings, species, number of measures prescribed in this final rule during right whale migration is of individuals, and calves observed, etc. are practicable, effective and will afford highest concern for potential ship strike. These data can later be analyzed to the necessary protection to marine These ports include the Hampton Roads characterize the risk of collisions with mammals. entrance to the Chesapeake Bay, which marine mammals by Navy vessels. To NEPA includes the concentration of Atlantic the extent resources exist, NMFS will Fleet vessels in Norfolk, Virginia. Navy endeavor to work with the Navy to Comment 13: The Virginia DEQ vessels are required to use extreme develop more formal studies that would requests that the final Integrated caution and operate at a slow, safe allow each agency to obtain the Comprehensive Monitoring Program speed consistent with mission and necessary data to characterize the risk of (ICMP) be included in the EIS if safety during the months of right whale Navy vessel collisions with right whales possible. migration and within a 20 nm (37 km) and to take further steps to minimize the Response: The ICMP will not be arc (except as noted) of the specified probability of a vessel strike. completed until the summer of 2009, reference points. Comment 12: The Commission therefore, it is not possible to include Comment 9: The VDGIF recommends recommends that NMFS work with the the ICMP in the FEIS. However, the NMFS expand the ‘‘elevated time of Navy to sponsor a peer review of Navy will include a comprehensive awareness’’ for right whales (Table 14 in existing risk analysis procedures and monitoring plan and a summary of the the proposed FR notice for the proposed the interpretation and use of survey or ICMP in the FEIS. In addition, the site rule, 73 FR 75631; December 12, 2008) other data in those analyses, and work specific comprehensive monitoring plan to Oct–April (without excluding with the Navy to validate the and a summary of the ICMP are January) or, at a minimum, Nov-March effectiveness of monitoring and included in the Navy’s VACAPES Range (without excluding January) based on mitigation measures, preferably before Complex final rule. strandings that have occurred in our beginning or, if that is infeasible, in Miscellaneous Issues region throughout these months. The conjunction with the Navy operations VDGIF states that recent observations subject to this incidental take Comment 14: The Virginia DEQ have been made of new mothers as far authorization. requests that NMFS consider in the final north as Wilmington, North Carolina Response: At this time, NMFS regulations that NMFS (1) coordinate during the winter calving season (i.e., concludes that the risk analyses for with the Virginia Department of Game Nov. 15–April 15), which provides naval activities and MMPA rulemakings and Inland Fisheries and the U.S. Fish further justification for expanding the are appropriate. If necessary, NMFS and and Wildlife Service for information period of elevated awareness for the Navy will coordinate at some future regarding the possible impacts to Virginia area and North Carolina. date to determine whether additional protected species and to ensure Response: The ‘‘elevated time of consideration of the risk analysis compliance with protected species awareness’’ for right whales already procedure is warranted. Regarding the legislation, and (2) contact Rene Hypes covers the months between October– effectiveness of monitoring and of the Virginia Department of April in South Carolina and December– mitigation measures, this final rule Conservation and Recreation Division of April in North Carolina. Although includes a requirement for the Navy to Natural Heritage at (804) 371–2708 for certain months were not covered in convene a Monitoring Workshop in an update on natural heritage areas north of North Carolina such as 2011 in which the participants will be information if a significant amount of the Chesapeake Bay, Delaware Bay, off asked to review the Navy’s Monitoring time passes before the proposed the coast of New York and New Jersey, Plans and monitoring results and make activities are initiated since new and this is because right whales are individual recommendations (to the updated information is continually extremely rare in these waters during Navy and NMFS) of ways of improving added to Biotics. those months. Regarding the recent the Monitoring Plans. NMFS believes Response: NMFS published a sighting (January 2009) of right whale that this type of workshop, with proposed rule for the VACAPES Range cows as far north as Wilmington, North participants including the Navy, NMFS, Complex training exercises (73 FR Carolina, this location and month are researchers, invited experts, and other 75631; December 12, 2008) that covered under the current ‘‘elevated interested parties, in combination with included a detailed description of time of awareness’’ for right whales. an adaptive management plan that protected marine mammal species Comment 10: The VDGIF states that allows for modification would provide a within the Range Complex. NMFS will the proposed mitigation measures and means for the Navy to adjust the work with Virginia as necessary and reporting requirement of the proposed Monitoring Plan as needed to more advise the State if there is any change rule are acceptable. Therefore, the effectively accomplish the goals of to the proposed action and updates on VDGIF has no comments on them. monitoring set forth earlier. NMFS natural resources information. With

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respect to other protected species such Federal Register on February 19, 2009 on the availability of the species or as ESA listed turtles or fish, the Navy is (74 FR 4844). stock(s) for subsistence uses (however, conducting a Section 7 consultation Comment 16: One private citizen there are no subsistence communities in with NMFS. The Navy has completed expressed general opposition to Navy the VACAPES Range Complex; thus, consultation with Delaware, Maryland, activities and NMFS’ issuance of an there would be no affect to any Virginia, and North Carolina under the MMPA authorization because of the subsistence user); and (4) to prescribe Coastal Zone Management Act. In danger of killing marine life. requirements pertaining to monitoring addition, NMFS is working to ensure Response: NMFS appreciates the and reporting. that the final rule for the proposed commenter’s concern for the marine In the Estimated Take of Marine action and the LOAs issued to the Navy mammals that live in the area of the Mammals section of the proposed rule, is in compliance with protected species proposed activities. However, the NMFS related the potential effects to legislation through the ESA consultation MMPA allows individuals to take marine mammals from underwater and the MMPA permitting review. marine mammals incidental to specified detonation of explosives to the MMPA NMFS does not expect there will be activities if NMFS can make the regulatory definitions of Level A and a significant amount of time that passes necessary findings required by law (i.e., Level B Harassment and assessed the between finalization of rule and the negligible impact, unmitigable adverse effects to marine mammals that could commencement of naval exercises. To impact on subsistence users, etc.). As result from the specific activities that the extent there is, NMFS will explained throughout this rulemaking, the Navy intends to conduct. The coordinate, as appropriate, with the NMFS has made the necessary findings subsections of this analysis are State and FWS. under 16 U.S.C. 1371(a)(5)(A) to support discussed in the proposed rule (73 FR Comment 15: The NRDC commented our issuance of the final rule. 75631; December 12, 2008) and have not on the proposed rule with its earlier changed. comments on the NMFS’ proposed rule Estimated Take of Marine Mammals for the Navy’s Atlantic Fleet Active As mentioned previously, with Acoustic Take Criteria Sonar Training (AFAST) and the Navy’s respect to the MMPA, NMFS’ effects In the Acoustic Take Criteria section AFAST DEIS. Specifically, the NRDC assessments serve four primary of the proposed rule, NMFS described states that neither NMFS in its proposed purposes: (1) To prescribe the the development and application of the rule, nor the Navy in its EIS offers permissible methods of taking (i.e., acoustic criteria for explosive sufficient measures to mitigate the Level B Harassment (behavioral detonations (73 FR 76531; December 12, harmful impacts of high intensity sonar. harassment), Level A Harassment 2008). No changes have been made to The NRDC further states that NMFS and (injury), or mortality, including an the discussion contained in this section the Navy’s analysis substantially identification of the number and types of the proposed rule. understates the potential effects of sonar of take that could occur by Level A or Take Calculations on marine wildlife. B harassment or mortality)) and to Response: NRDC’s comments are prescribe other means of effecting the In the Take Calculation section of the inapplicable to the proposed Navy least practicable adverse impact on such proposed rule, NMFS described in training activities in the VACAPES species or stock and its habitat (i.e., detail how the take estimates were Range Complex. The Navy does not mitigation); (2) to determine whether calculated through modeling (73 FR intend, as part of its proposed action, to the specified activity will have a 76531). No changes have been made to conduct training with MFAS, HFAS, negligible impact on the affected species the discussion contained in this section and Improved Extended Echo Ranging or stocks of marine mammals (based on of the proposed rule. (IEER)/Advanced Extended Echo the likelihood that the activity will A summary of potential exposures Ranging (AEER). The Navy’s request for adversely affect the species or stock from ordnance (per year) for marine a LOA for sonar related training was through effects on annual rates of mammals in the VACAPES Range addressed in the Final Rule and LOA for recruitment or survival); (3) to Complex is listed in Table 4 (these AFAST which was issued by NMFS on determine whether the specified activity exposure estimates are similar to those January 22, 2009, and published in the will have an unmitigable adverse impact presented in the proposed rule).

TABLE 4—SUMMARY OF POTENTIAL TAKES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE VACAPES RANGE COMPLEX

Level B Level A Species harassment harassment Mortality

Fin whale ...... 2 0 0 Humpback whale ...... 2 0 0 North Atlantic right whale ...... 0 0 0 Sperm whale ...... 2 0 0 Atlantic spotted dolphin ...... 43 1 0 Beaked whales ...... 0 0 0 Bottlenose dolphin ...... 29 0 0 Clymene dolphin ...... 33 0 0 Common dolphin ...... 2,193 20 0 Kogia sp...... 3 0 0 Pantropical spotted dolphin ...... 70 1 0 Pilot whale ...... 10 0 0 Risso’s dolphin ...... 16 0 0 Rough-toothed dolphin ...... 1 0 0 Striped dolphin ...... 68 3 0

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Effects on Marine Mammal Habitat the shock wave may affect the extent of etc.), the context of any responses NMFS’ VACAPES Range Complex injury. Open water pelagic fish (e.g., (critical reproductive time or location, proposed rule included a section that mackerel) also seem to be less affected migration, etc.), as well as the number addressed the effects of the Navy’s than reef fishes. The results of most and nature of estimated Level A takes, activities on marine mammal habitat (73 studies are dependent upon specific the number of estimated mortalities, and FR 75631, page 75654). The Navy’s biological, environmental, explosive, effects on habitat. The Navy’s specified activities have proposed training exercises could and data recording factors. The huge variations in the fish been described based on best estimates potentially affect marine mammal population, including numbers, species, of the planned detonation events the habitat through underwater detonation sizes, and orientation and range from Navy would conduct for the proposed and the introduction of explosive sound the detonation point, make it very VACAPES Range Complex training into the water column, and impacts to difficult to accurately predict mortalities activities. The events are generally short the prey species of marine mammals. at any specific site of detonation. in duration, including a total of 115 1– These potential impacts are considered However, most fish species experience a 1.5–hour events and 46 6–8-hour events. in the VACAPES FEIS and were large number of natural mortalities, Taking the above into account, along determined by the Navy to have no especially during early life-stages, and with the fact that NMFS anticipates no effect on marine mammal habitat. Based any small level of mortality caused by mortalities (and few injuries) to result on the information below and the the VACAPES Range Complex training from the action, the fact that there are supporting information included in the exercises involving explosives will no specific areas of reproductive Navy’s FEIS, NMFS has determined that likely be insignificant to the population importance for marine mammals the VACAPES Range Complex training as a whole. recognized within VACAPES, the activities will not have adverse or long- Therefore, potential impacts to marine sections discussed below, and term impacts on marine mammal mammal food resources within the dependent upon the implementation of habitat. VACAPES Range Complex is negligible the proposed mitigation measures, Unless the sound source or explosive given both the very geographic and NMFS has determined that Navy detonation is stationary and/or spatially limited scope of most Navy at training exercises utilizing underwater continuous over a long duration in one sea activities including underwater detonations will have a negligible area, the effects of underwater detonations, and the high biological impact on the affected marine mammal detonation and its associated sound are productivity of these resources. No short species and stocks present in the generally considered to have a less or long term effects to marine mammal VACAPES Range Complex Study Area. severe impact on marine mammal food resources from Navy activities are NMFS’ analysis of potential habitat than the physical alteration of anticipated within the VACAPES Range behavioral harassment, temporary the habitat. Marine mammals may be Complex. There is no critical habitat for threshold shifts, permanent threshold temporarily displaced from areas where marine mammals in the proposed shifts, injury, and mortality to marine Navy training is occurring, but the area VACAPES Range Complex Study Area. mammals as a result of the VACAPES will be utilized again after the activities Range Complex training activities was Analysis and Negligible Impact have ceased. provided in the proposed rule (73 FR Determination Effects on Food Resources 75631, pages 75636–75646) and is Pursuant to NMFS’ regulations described in more detail below. There are currently no well implementing the MMPA, an applicant established thresholds for estimating is required to estimate the number of Behavioral Harassment effects to fish from explosives other than animals that will be ‘‘taken’’ by the The Navy plans a total of 80 mortality models. Fish that are located specified activities (i.e., takes by MISSILEX training events (each lasting in the water column, in proximity to the harassment only, or takes by for 1 hour), 22 FIREX training events source of detonation could be injured, harassment, injury, and/or death). This (each lasting for 8 hours), 5 BOMBEX killed, or disturbed by the impulsive estimate informs the analysis that NMFS training events (each lasting for 1 hour), sound and possibly temporarily leave must perform to determine whether the 30 MH–60S MINEX training events the area. Continental Shelf Inc. (2004) activity will have a ‘‘negligible impact’’ (each lasting for 1.5 hours), and 24 EOD summarized a few studies conducted to on the species or stock. Level B MINEX training events (each lasting for determine effects associated with (behavioral) harassment occurs at the 6–8 hours) annually. The total training removal of offshore structures (e.g., oil level of the individual(s) and does not exercises proposed by the Navy in the rigs) in the Gulf of Mexico. Their assume any resulting population-level VACAPES Range Complex amount to findings revealed that at very close consequences, though there are known under 500 hours per year. These range, underwater explosions are lethal avenues through which behavioral detonation events are widely dispersed to most fish species regardless of size, disturbance of individuals can result in throughout several of the designated shape, or internal anatomy. For most population-level effects. A negligible sites within the VACAPES Range situations, cause of death in fishes has impact finding is based on the lack of Complex Study Area. The probability been massive organ and tissue damage likely adverse effects on annual rates of that detonation events will overlap in and internal bleeding. At longer range, recruitment or survival (i.e., population- time and space with marine mammals is species with gas-filled swimbladders level effects). An estimate of the number low, particularly given the densities of (e.g., snapper, cod, and striped bass) are of Level B harassment takes alone, is not marine mammals in the VACAPES more susceptible than those without enough information on which to base an Range Complex Study Area and the swimbladders (e.g., flounders, eels). impact determination. implementation of monitoring and Studies also suggest that larger fishes In addition to considering estimates of mitigation measures. Moreover, NMFS are generally less susceptible to death or the number of marine mammals that does not expect animals to experience injury than small fishes. Moreover, might be ‘‘taken’’ through behavioral repeat exposures to the same sound elongated forms that are round in cross harassment, NMFS must consider other source as animals will likely move away section are less at risk than deep-bodied factors, such as the likely nature of any from the source after being exposed. In forms; and orientation of fish relative to responses (their intensity, duration, addition, these isolated exposures,

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when received at distances of Level B Acoustic Masking or Communication sperm whales, 3 dwarf or pygmy sperm behavioral harassment (i.e., 177 dB re 1 Impairment whales, 1 rough-toothed dolphin, 29 2 microPa -sec), are expected to cause As discussed above, it is also possible bottlenose dolphins, 70 pantropical brief startle reactions or short-term that anthropogenic sound could result spotted dolphins, 68 stripped dolphins, behavioral modification by the animals. in masking of marine mammal 33 Clymene dolphins, 43 Atlantic These brief reactions and behavioral communication and navigation signals. spotted dolphins, 2,193 common changes are expected to disappear when However, masking only occurs during dolphins, 16 Risso’s dolphins, and 10 the exposures cease. Therefore, these the time of the signal (and potential pilot whales could be affected by Level levels of received impulse noise from secondary arrivals of indirect rays), B harassment (TTS and sub-TTS) as a detonation are not expected to affect versus TTS, which occurs continuously result of the proposed VACAPES Range Complex training activities. These annual rates or recruitment or survival. for its duration. Impulse sounds from numbers represent approximately underwater detonation are extremely TTS 0.24%, 0.09%, 0.04%, 0.76%, 0.04%, brief and the majority of most animals’ 1.58%, 0.07%, 0.08%, 1.82%, 0.08%, NMFS and the Navy have estimated vocalizations would not be masked. and 0.03% of humpback whales, fin that individuals of some species of Therefore, masking effects from whales, sperm whales, dwarf or pygmy marine mammals may sustain some underwater detonation are expected to sperm whales, bottlenose dolphins, level of temporarily threshold shift TTS be minimal and unlikely. If masking or pantropical spotted dolphins, striped from underwater detonations. TTS can communication impairment were to dolphins, Clymene dolphins, Atlantic last from a few minutes to days, be of occur briefly, it would be in the varying degree, and occur across various spotted dolphins, common dolphins, frequency ranges below 100 Hz, which Risso’s dolphins, and pilot whales, frequency bandwidths. The TTS overlaps with some mysticete sustained by an animal is primarily respectively in the vicinity of the vocalizations; however, it would likely proposed VACAPES Range Complex classified by three characteristics: not mask the entirety of any particular • Study Area (calculation based on NMFS Frequency—Available data (of mid- vocalization or communication series 2007 US Atlantic and Gulf of Mexico frequency hearing specialists exposed to because of the short impulse. Marine Mammal Stock Assessment). mid to high frequency sounds—Southall PTS, Injury, or Mortality Although the population estimates of et al., 2007) suggest that most TTS Clymene dolphins and rough-toothed The Navy’s model estimated that 1 occurs in the frequency range of the dolphins are unknown in the proposed Atlantic spotted dolphin, 20 common source up to one octave higher than the action area, NMFS believes that the take 1 dolphins, 1 pantropical spotted dolphin, source (with the maximum TTS at ⁄2 of 33 individuals of Clymene dolphins and 3 striped dolphins could experience octave above). and 1 individual of rough-toothed 50% tympanic membrane rupture or • Degree of the shift (i.e., how many dolphin by Level B harassment would slight lung injury (Level A harassment) dB is the sensitivity of the hearing have a negligible impact to this species as a result of the training activities reduced by)—generally, both the degree because most of their population exists utilizing underwater detonation in the of TTS and the duration of TTS will be beyond the project area and because VACAPES Range Complex Study Area. greater if the marine mammal is exposed they are widely distributed species in However, these estimates do not take to a higher level of energy (which would the North Atlantic (Jefferson et al., 1993; into consideration the proposed occur when the peak dB level is higher Reeves et al., 2002). mitigation and monitoring measures. or the duration is longer). Since the In addition, the Level A takes of 1 For underwater detonations, the animals impulse from detonation is extremely Atlantic spotted dolphin, 20 common have to be within an area between brief, an animal would have to approach dolphins, 1 pantropical spotted dolphin, certain injury zones of influence (ZOI) very close to the detonation site to and 3 striped dolphins represent to experience Level A harassment. Such increase the received SEL. The 0.002%, 0.0166%, 0.0225%, and injury ZOI varies from 0.02 km2 to 6.39 0.0032% of these species, respectively, threshold for the onset of TTS for 2 detonations is a dual criteria: 182 dB re km (or at distances between 80 m to in the vicinity of the proposed 1,426 m from the center of detonation) 1 microPa2-sec or 23 psi, which might VACAPES Range Complex Study Area depending on the types of munition be received at distances from 345–2,863 (calculation based on NMFS 2007 US used and the season of the action. m from the centers of detonation based Atlantic and Gulf of Mexico Marine Though it is possible that Navy on the types of NEW involved to receive Mammal Stock Assessment). Given observers could fail to detect an animal the SEL that causes TTS compared to these very small percentages, NMFS at a distance of more than 1 km (an similar source level with longer does not expect there to be any long- injury ZOI during BOMEX, which is durations (such as sonar signals). term adverse effect on the populations planned to have 5 events annually), all of the aforementioned dolphin species. • Duration of TTS (Recovery time)— injury ZOIs from other detonation No marine mammals are expected to be Of all TTS laboratory studies, some activities (FIREX, MISSILEX, and killed as a result of these activities. using exposures of almost an hour in MINEX) are smaller than 0.165 km2 (230 Additionally, the aforementioned take duration or up to 217 SEL, almost all m in radius) and NMFS believes it is estimates do not account for the recovered within 1 day (or less, often in unlikely that any marine mammal could implementation of mitigation measures. minutes), though in one study (Finneran be detected by lookouts/watchstanders With the implementation of mitigation et al., 2007), recovery took 4 days. or MMOs. As discussed previously, the and monitoring measures, NMFS • Although the degree of TTS Navy plans to utilize aerial or vessel expects that the takes would be reduced depends on the received noise levels surveys to detect marine mammals for further. Coupled with the fact that these and exposure time, all studies show that mitigation implementation and impacts will likely not occur in areas TTS is reversible and animals’ indicated that they are capable of and times critical to reproduction, sensitivity is expected to recover fully effectively monitoring safety zones. NMFS has determined that the total in minutes to hours. Therefore, NMFS Based on these assessments, NMFS taking over the 5-year period of the expects that TTS would not affect determined that approximately 2 regulations and subsequent LOAs from annual rates of recruitment or survival. humpback whales, 2 fin whales, 2 the Navy’s VACAPES Range Complex

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training activities will have a negligible because no subsistence uses exist in the challenging at-sea environment, conduct impact on the marine mammal species VACAPES Range Complex study area. military operations, control strategic and stocks present in the VACAPES NMFS has issued regulations for these maritime transit routes and Range Complex Study Area. exercises that prescribe the means of international straits, and protect sea effecting the least practicable adverse lines of communications that support Subsistence Harvest of Marine impact on marine mammals and their international commerce. To meet these Mammals habitat and set forth requirements objectives, the Navy must continually NMFS has determined that the pertaining to the monitoring and train. Timely training is critical because issuance of 5-year regulations and reporting of that taking. individual Navy units and Strike subsequent LOAs (as warranted) for Groups/Amphibious Readiness Groups Classification Navy training exercises in the (ARG) currently operate in, or need to VACAPES Range Complex would not This action does not contain a quickly deploy to high risk geographic have an unmitigable adverse impact on collection of information requirement areas. In addition, a Strike Group/ARG the availability of the affected species or for purposes of the Paperwork is built around an aircraft carrier with stocks for subsistence use since there Reduction Act. typically 5,300 personnel on board and are no such uses in the specified area. Pursuant to Executive Order 12866, an amphibious assault ship that carries the Office of Management and Budget a Marine Corps Expeditionary Unit, so ESA has determined that this rule is not failure to adequately train risks There are five marine mammal significant. thousands of lives. species, three sea turtle species, and a The Chief Counsel for Regulation of The training necessary to protect fish species that are listed as the Department of Commerce certified at American interests and the lives of endangered under the ESA with the Proposed Rule stage that this action sailors and marines is complex. It confirmed or possible occurrence in the will not have a significant economic involves ensuring the warfighter can study area and could be impacted by the impact on a substantial number of small accurately identify potential threats in a proposed action: Humpback whale, entities. The Navy is the entity that will variety of marine environments and North Atlantic right whale, blue whale, be affected by this rulemaking, not a conditions, and it involves the fin whale, sperm whale, loggerhead sea small governmental jurisdiction, small coordination of different vessels and turtle, leatherback sea turtle, the Kemp’s organization or small business, as aircraft so that the group’s capabilities ridley sea turtle, and the shortnose defined by the RFA. This rulemaking are employed in the most tactically sturgeon. authorizes the take of marine mammals effective manner. As with any Pursuant to Section 7 of the ESA, the incidental to a specified activity. The complicated coordinated effort, this Navy has consulted with NMFS on this specified activity defined in the challenge requires routine practice, as action. NMFS has also consulted proposed rule includes the use of these skills are perishable. internally on the issuance of regulations underwater detonations, which are only In 10 U.S.C. 5062, Congress mandated under section 101(a)(5)(A) of the MMPA used by the U.S. military, during that the Chief of Naval Operations for this activity. The Biological Opinion training activities that are only (CNO) organize, train, and equip all concludes that the proposed training conducted by the U.S. Navy. Naval forces for combat. In response, the activities are likely to adversely affect Additionally, any requirements imposed Fleet Response Training Plan (FRTP) is but are not likely to jeopardize the by a Letter of Authorization issued a major initiative designed to ensure continued existence of these threatened pursuant to these regulations, and any Naval units receive required training and endangered species under NMFS monitoring or reporting requirements before they deploy. The FRTP is an jurisdiction. imposed by these regulations, will be arduous sequential training cycle in applicable only to the Navy. Because which unit level training (ULT) and NEPA this action, if adopted, would directly combat certification are followed by NMFS participated as a cooperating affect the Navy and not a small entity, major exercises that bring together agency on the Navy’s Final NMFS concludes the action would not various warfare components so they Environmental Impact Statement (FEIS) result in a significant economic impact have the opportunity to practice as an for the VACAPES Range Complex. on a substantial number of small integrated whole and attain NMFS subsequently adopted the Navy’s entities. certification. Accordingly, any delay in EIS for the purpose of complying with The Assistant Administrator for coordinated training creates a the MMPA. Fisheries has determined that there is significant and unreasonable risk which good cause under the Administrative could result in a unit’s and/or Strike Determination Procedure Act (5 U.S.C. 553(d)(3)) to Group’s inability to train, certify and Based on the analysis contained waive the 30-day delay in effective date report as directed to an overseas theater herein and in the proposed rule (and of the measures contained in the final of operations. other related documents) of the likely rule. The U.S Navy has a compelling A deployment certification exercise is effects of the specified activity on national policy reason to continue currently scheduled for June 2009 that marine mammals and their habitat and military readiness activities without will encompass areas of the VACAPES dependent upon the implementation of interruption in its East Coast Operating Range Complex. Lack of the appropriate the mitigation measures, NMFS finds Areas, i.e., the VACAPES Range environmental regulatory coverage for that the total taking from Navy Complex. As discussed below, even a single day imperils completion of VACAPES Range Complex training suspension/interruption of the Navy’s this exercise, and risks deployment exercises utilizing underwater ability to train, for even a small number certification. Essential ULT also occurs explosives over the 5 year period will of days, disrupts vital sequential in these OPAREAs. There is limited unit have a negligible impact on the affected training and certification processes level underway (at-sea) time available in species or stocks and will not result in essential to our national security. the FRTP to adjust the training dates. an unmitigable adverse impact on the In order to meet its national security These ULT training periods are driven availability of marine mammal species objectives, the Navy must continually by sequential certification processes for or stocks for taking for subsistence uses maintain its ability to operate in a both inport and at-sea training.

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Scheduling constraints are further and that occur incidental to the (d) Regulations are effective June 8, complicated by the availability of Afloat activities described in paragraph (c) of 2009 and are applicable to the Navy on Training Groups (ATGs) that are this section. June 5, 2009 through June 4, 2014. responsible for training all individual (b) The taking of marine mammals by units. ATGs have a limited number of the Navy is only authorized if it occurs § 218.2 Permissible methods of taking. trainers available at any given time, and within the VACAPES Range Complex (a) Under Letters of Authorization their schedules must also be de- Operation Area (OPAREA), which is issued pursuant to § 216.106 of this conflicted, compounding the problem if located in the coastal and offshore chapter and § 218.7, the Holder of the training schedules are not adhered to. waters of the western North Atlantic Letter of Authorization may Waiver of the 30-day delay of the Ocean adjacent to Delaware, Maryland, incidentally, but not intentionally, take effective date of the Final Rule will Virginia, and North Carolina. The marine mammals within the area allow Navy to finalize operational northernmost boundary of the described in § 218.1(b), provided the procedures to ensure compliance with VACAPES Range Complex OPAREA is activity is in compliance with all terms, required mitigation, monitoring, and located 37 nautical miles (nm) off the conditions, and requirements of this reporting requirements, and have entrance to Delaware Bay at latitude subpart and the appropriate Letter of MMPA authorization in place prior to 38°45′ N, the farthest point of the Authorization. Navy’s vital June 2009 exercise. eastern boundary is 184 nm east of (b) The activities identified in Chesapeake Bay at longitude 72°41′ W, § 218.1(c) must be conducted in a List of Subjects in 50 CFR Part 218 and the southernmost point is 105 nm manner that minimizes, to the greatest Exports, Fish, Imports, Incidental southeast of Cape Hatteras, North extent practicable, any adverse impacts take, Indians, Labeling, Marine Carolina, at latitude of 34°19′ N. The on marine mammals and their habitat. mammals, Navy, Penalties, Reporting western boundary of the VACAPES (c) The incidental take of marine and recordkeeping requirements, Range Complex OPAREA lies 3 nm from mammals under the activities identified Seafood, Transportation. the shoreline at the boundary separating in § 218.1(c) is limited to the following species, by the indicated method of take Dated: June 5, 2009. state and Federal waters. and the indicated number of times: Samuel D. Rauch III, (c) The taking of marine mammals by the Navy is only authorized if it occurs (1) Level B Harassment: Deputy Assistant Administrator for incidental to the following activities (i) Mysticetes: Regulatory Programs, National Marine (A) Humpback whale (Megaptera Fisheries Service. within the designated amounts of use: (1) The detonation of the underwater novaeangliae)—10 (an average of 2 ■ For reasons set forth in the preamble, explosives indicated in paragraph annually); and 50 CFR Chapter II is amended by adding (c)(1)(i) of this section conducted as part (B) Fin whale (Balaenoptera part 218 to read as follows: of the training events indicated in physalus)—10 (an average of 2 ■ 1. Part 218 is added to read as follows: paragraph (c)(1)(ii) of this section: annually). (i) Underwater Explosives: (ii) Odontocetes: PART 218—REGULATIONS (A) AGM–114 (Hellfire missile) (A) Sperm whale (Physeter GOVERNING THE TAKING AND (B) AGM–65 E/F (Maverick missile) macrocephalus)—10 (an average of 2 IMPORTING OF MARINE MAMMALS (C) MK–83/GBU–32 (1,000 lb High annually); Subpart A—Taking Marine Mammals Explosive bomb) (B) Pygmy or dwarf sperm whales Incidental to U.S. Navy Training in the (D) Airgorne Mine Neutralization (Kogia sp.)—15 (an average of 3 Virginia Capes Range Complex (VACAPES system (AMNS) annually); Range Complex) (E) 20 lb NEW charges (C) Rough-toothed dolphin (Steno Sec. (F) AGM–88 (HARM) bredanensis)—5 (an average of 1 218.1 Specified activity, specified (G) 5″ Naval Gunfire annually); geographical area and effective dates. (ii) Training Events: (D) Bottlenose dolphin (Tursiops 218.2 Permissible methods of taking. (A) Mine Exercise (MINEX) (Mine truncatus)—145 (an average of 29 218.3 Prohibitions. Neutralization [AMNS])—up to 150 annually); 218.4 Mitigation. exercises over the course of 5 years (an (E) Pantropical spotted dolphin 218.5 Requirements for monitoring and average of 30 per year); (Stenella attenuata)—350 (an average of reporting. (B) Mine Exercise (MINEX) (Mine 70 annually); 218.6 Applications for Letters of Neutralization [20 lb NEW charges])— (F) Striped dolphin (S. Authorization. 218.7 Letters of Authorization. up to 120 exercises over the course of coeruleoalba)—340 (an average of 68 218.8 Renewal of Letters of Authorization 5 years (an average of 24 per year); annually); and adaptive management. (C) Bombing Exercise (BOMBEX) (Air- (G) Clymene dolphin (S. clymene)— 218.9 Modifications to Letters of to-Surface)—up to 100 exercises over 165 (an average of 33 annually); Authorization. the course of 5 years (an average of 20 (H) Atlantic spotted dolphin (S. Authority: 16 U.S.C. 1361 et seq. per year); frontalis)—215 (an average of 43 (D) Missile Exercise (MISSILEX) (Air- annually); Subpart A—Taking Marine Mammals to-Surface; Hellfire missile)—up to 300 (I) Common dolphin (Delphinus Incidental to U.S. Navy Training in the exercises over the course of 5 years (an delphis)—10,965 (an average of 2,193 Virginia Capes Range Complex average of 60 per year); annually); (VACAPES Range Complex) (E) Missile Exercise (MISSILEX) (Air- (J) Risso’s dolphin (Grampus to-Surface; Maverick, HE)—up to 100 griseus)—80 (an average of 16 annually); § 218.1 Specified activity, specified exercises over the course of 5 years (an and geographical area and effective dates. average of 20 per year); and (K) Pilot whales (Globicephala sp.)— (a) Regulations in this subpart apply (F) FIREX with IMPASS—up to 110 50 (an average of 10 annually). only to the U.S. Navy for the taking of exercises over the course of 5 years (an (2) Level A Harassment (injury): marine mammals that occurs in the area average of 22 per year). (i) Atlantic spotted dolphin—5 (an outlined in paragraph (b) of this section (2) [Reserved] average of 1 annually);

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(ii) Common dolphin—100 (an (E) Surface lookouts shall scan the Lookout Training Handbook average of 20 annually); water from the ship to the horizon and (NAVEDTRA 12968–D). (iii) Pantropical spotted dolphin—5 be responsible for all contacts in their (F) While in transit, naval vessels (an average of 1 annually); and sector. In searching the assigned sector, shall be alert at all times, use extreme (iv) Striped dolphin—15 (an average the lookout shall always start at the caution, and proceed at a ‘‘safe speed’’ of 3 annually). forward part of the sector and search aft so that the vessel can take proper and effective action to avoid a collision with § 218.3 Prohibitions. (toward the back). To search and scan, the lookout shall hold the binoculars any marine animal and can be stopped Notwithstanding takings steady so the horizon is in the top third within a distance appropriate to the contemplated in § 218.2 and authorized of the field of vision and direct the eyes prevailing circumstances and by a Letter of Authorization issued just below the horizon. The lookout conditions. under § 216.106 of this chapter and shall scan for approximately five (G) When whales have been sighted in § 218.7, no person in connection with seconds in as many small steps as the area, Navy vessels shall increase the activities described in § 218.1 may: vigilance and implement measures to (a) Take any marine mammal not possible across the field seen through the binoculars. They shall search the avoid collisions with marine mammals specified in § 218.2(c); and avoid activities that might result in (b) Take any marine mammal entire sector in approximately five- degree steps, pausing between steps for close interaction of naval assets and specified in § 218.2(c) other than by marine mammals. Such measures shall incidental take as specified in approximately five seconds to scan the field of view. At the end of the sector include changing speed and/or direction § 218.2(c)(1) and (2); and would be dictated by environmental (c) Take a marine mammal specified search, the glasses shall be lowered to and other conditions (e.g., safety or in § 218.2(c) if such taking results in allow the eyes to rest for a few seconds, weather). more than a negligible impact on the and then the lookout shall search back across the sector with the naked eye. (H) Naval vessels shall maneuver to species or stocks of such marine keep at least 500 yds (460 m) away from (F) At night, lookouts shall scan the mammal; or any observed whale and avoid (d) Violate, or fail to comply with, the horizon in a series of movements that approaching whales head-on. This terms, conditions, and requirements of would allow their eyes to come to requirement does not apply if a vessel’s this Subpart or a Letter of Authorization periodic rests as they scan the sector. safety is threatened, such as when issued under § 216.106 of this chapter When visually searching at night, they change of course will create an and § 218.7. shall look a little to one side and out of imminent and serious threat to a person, the corners of their eyes, paying vessel, or aircraft, and to the extent § 218.4 Mitigation. attention to the things on the outer vessels are restricted in their ability to (a) When conducting training edges of their field of vision. Lookouts maneuver. Vessels shall take reasonable activities identified in § 218.1(c), the shall also have night vision devices steps to alert other vessels in the mitigation measures contained in the available for use. Letter of Authorization issued under vicinity of the whale. (ii) Operating Procedures and (I) Where feasible and consistent with § 216.106 of this chapter and § 218.7 Collision Avoidance: must be implemented. These mitigation mission and safety, vessels shall avoid (A) Prior to major exercises, a Letter closing to within 200-yd (183 m) of measures include, but are not limited to: of Instruction, Mitigation Measures (1) General Maritime Measures: marine mammals other than whales (i) Personnel Training—Lookouts Message or Environmental Annex to the (whales addressed above). (A) All bridge personnel, Operational Order shall be issued to (J) Navy aircraft participating in Commanding Officers, Executive further disseminate the personnel exercises at sea shall conduct and Officers, officers standing watch on the training requirement and general marine maintain, when operationally feasible bridge, maritime patrol aircraft aircrews, species mitigation measures. and safe, surveillance for marine species and Mine Warfare (MIW) helicopter (B) Commanding Officers shall make of concern as long as it does not violate crews shall complete Marine Species use of marine species detection cues safety constraints or interfere with the Awareness Training (MSAT). and information to limit interaction accomplishment of primary operational (B) Navy lookouts shall undertake with marine species to the maximum duties. Marine mammal detections shall extensive training to qualify as a extent possible consistent with safety of be immediately reported to assigned watchstander in accordance with the the ship. Aircraft Control Unit for further Lookout Training Handbook (C) While underway, surface vessels dissemination to ships in the vicinity of (NAVEDTRA 12968–D). shall have at least two lookouts with the marine species as appropriate where (C) Lookout training shall include on- binoculars; surfaced submarines shall it is reasonable to conclude that the the-job instruction under the have at least one lookout with course of the ship will likely result in supervision of a qualified, experienced binoculars. Lookouts already posted for a closing of the distance to the detected watchstander. Following successful safety of navigation and man-overboard marine mammal. completion of this supervised training precautions may be used to fill this (K) All vessels shall maintain logs and period, lookouts shall complete the requirement. As part of their regular records documenting training Personal Qualification Standard duties, lookouts shall watch for and operations should they be required for Program, certifying that they have report to the OOD the presence of event reconstruction purposes. Logs and demonstrated the necessary skills (such marine mammals. records shall be kept for a period of 30 as detection and reporting of partially (D) Personnel on lookout shall employ days following completion of a major submerged objects). visual search procedures employing a training exercise. (D) Lookouts shall be trained in the scanning method in accordance with the (2) Coordination and Reporting most effective means to ensure quick Lookout Training Handbook Requirements. (i) The Navy shall and effective communication within the (NAVEDTRA 12968–D). coordinate with the local NMFS command structure to facilitate (E) After sunset and prior to sunrise, Stranding Coordinator for any unusual implementation of protective measures lookouts shall employ Night Lookouts marine mammal behavior and any if marine species are spotted. Techniques in accordance with the stranding, beached live/dead, or floating

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marine mammals that may occur at any ‘‘southeast’’ encompasses sea space (4) During the North Atlantic right time during or within 24 hours after from Charleston, South Carolina, whale calving season, north-south completion of training activities. southward to Sebastian Inlet, Florida, transits through the critical habitat are (ii) The Navy shall follow internal and from the coast seaward to 148 km prohibited. chain of command reporting procedures (80 NM) from shore. North Atlantic right (5) Ships, surfaced subs, and aircraft as promulgated through Navy whale critical habitat is the area from shall report any whale sightings to Fleet instructions and orders. 31–15° N. lat. to 30–15° N. lat. Area Control and Surveillance Facility, (3) Mitigation Measures Applicable to extending from the coast out to 28 km Jacksonville, by the quickest and most Vessel Transit in the Mid-Atlantic (15 NM), and the area from 28–00° N. practicable means. The sighting report during North Atlantic Right Whale lat. to 30–15° N. lat. from the coast out shall include the time, latitude/ Migration: The mitigation measures to 9 km (5 NM). All mitigation measures longitude, direction of movement and apply to all Navy vessel transits, described here that apply to the critical number and description of whale (i.e., including those vessels that would habitat apply from November 15–April adult/calf). transit to and from East Coast ports and 15 and also apply to an associated area (iii) Northeast Atlantic, Offshore of the VACAPES Range Complex. of concern which extends 9 km (5 NM) the Eastern United States: (i) Mid-Atlantic, Offshore of the seaward of the designated critical (A) Prior to transiting the Great South Eastern United States: habitat boundaries. Channel or Cape Cod Bay critical habitat (A) All Navy vessels are required to (A) Prior to transiting or training in areas, ships shall obtain the latest North use extreme caution and operate at a the critical habitat or associated area of Atlantic right whale sightings and other slow, safe speed consistent with mission concern, ships shall contact Fleet Area information needed to make informed and safety (at a speed that does not Control and Surveillance Facility, decisions regarding safe speed (the minimum speed at which mission goals compromise safety of navigation) during Jacksonville, to obtain latest whale or safety will not be compromised). The the months indicated below and within sighting and other information needed Great South Channel critical habitat is a 37 km (20 nm) arc (except as noted) to make informed decisions regarding defined by the following coordinates: of the specified associated reference safe speed (the minimum speed at 41–00° N. lat., 69–05° W. long.; 41–45° points: which mission goals or safety will not N. lat, 69–45° W. long; 42–10° N. lat., (1) South and East of Block Island (37 be compromised) and path of intended 68–31° W. long.; 41–38° N. lat., 68–13° km (20 NM) seaward of line between movement. Subs shall contact ° ° W. long. The Cape Cod Bay critical 41–4.49 N. lat. 071–51.15 W. long. and Commander, Submarine Group Ten for ° ° habitat is defined by the following 41–18.58 N. lat. 070–50.23 W. long): similar information. Sept–Oct and Mar–Apr coordinates: 42–04.8° N. lat., 70–10° W. ° (B) The following specific mitigation long.; 42–12° N. lat., 70–15° W. long.; (2) New York/New Jersey (40–30.64 measures apply to activities occurring N. lat. 073–57.76° W. long.): Sep–Oct 42–12° N. lat., 70–30° W. long.; 41–46.8° within the North Atlantic right whale N. lat., 70–30° W. long. and Feb–Apr. critical habitat and an associated area of (3) Delaware Bay (Philadelphia) (38– (B) Ships, surfaced subs, and aircraft concern which extends 9 km (5 NM) 52.13° N. lat. 075–1.93° W. long.): Oct– shall report any North Atlantic right seaward of the designated critical Dec and Feb–Mar. whale sightings (if the whale is (4) Chesapeake Bay (Hampton Roads habitat boundaries: identifiable as a right whale) off the and Baltimore) (37–1.11° N. lat. 075– (1) When transiting within the critical northeastern U.S. to Patrol and 57.56° W. long.): Nov–Dec and Feb–Apr. habitat or associated area of concern, Reconnaissance Wing (5) North Carolina (34–41.54° N. lat. vessels shall exercise extreme caution (COMPATRECONWING). The report 076–40.20° W. long.): Dec–Apr. and proceed at a slow safe speed. The shall include the time of sighting, lat/ (6) South Carolina (33–11.84° N. lat. speed shall be the slowest safe speed long, direction of movement (if 079–8.99° W. long. and 32–43.39° N. lat. that is consistent with mission, training apparent) and number and description 079–48.72° W. long.): Oct–Apr. and operations. of the whale(s). (B) During the months indicated in (2) Speed reductions (adjustments) are (C) Vessels or aircraft that observe paragraph (a)(3)(i)(A) of this section, required when a whale is sighted by a whale carcasses shall record the Navy vessels shall practice increased vessel or when the vessel is within 9 km location and time of the sighting and vigilance with respect to avoidance of (5 NM) of a reported new sighting less report this information as soon as vessel-whale interactions along the mid- than 12 hours old. Circumstances could possible to the cognizant regional Atlantic coast, including transits to and arise where, in order to avoid North environmental coordinator. All whale from any mid-Atlantic ports not Atlantic right whale(s), speed strikes must be reported. This report specifically identified in paragraph reductions could mean vessels must shall include the date, time, and (a)(3)(i)(A) of this section. reduce speed to a minimum at which it location of the strike; vessel course and (C) All surface units transiting within can safely keep on course or vessels speed; operations being conducted by 56 km (30 NM) of the coast in the mid- could come to an all stop. the vessel; weather conditions, Atlantic shall ensure at least two (3) Vessels shall avoid head-on visibility, and sea state; description of watchstanders are posted, including at approaches to North Atlantic right the whale; narrative of incident; and least one lookout who has completed whale(s) and shall maneuver to indication of whether photos/videos required MSAT training. maintain at least 457 m (500 yd) of were taken. Navy personnel are (D) Navy vessels shall not knowingly separation from any observed whale if encouraged to take photos whenever approach any whale head on and shall deemed safe to do so. These possible. maneuver to keep at least 457 m (1,500 requirements do not apply if a vessel’s (D) Specific mitigation measures ft) away from any observed whale, safety is threatened, such as when a related to activities occurring within the consistent with vessel safety. change of course would create an critical habitat include the following: (ii) Southeast Atlantic, Offshore of the imminent and serious threat to a person, (1) Vessels shall avoid head-on Eastern United States—for the purposes vessel, or aircraft, and to the extent approaches to North Atlantic right of the measures below (paragraphs vessels are restricted in the ability to whale(s) and shall maneuver to (a)(3)(ii)(A) & (B) of this section), the maneuver. maintain at least 457 m (500 yd) of

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separation from any observed whale if m) buffer zone until the area is cleared. during the entire operation. A survey of deemed safe to do so. These If marine mammals are present, the ZOI (minimum of 3 parallel requirements do not apply if a vessel’s operations shall be suspended. Visual tracklines 219 yd [200 m] apart) using safety is threatened, such as when observation shall occur for support craft shall be conducted at the change of course would create an approximately 45 minutes, or until the detonation location 30 minutes prior imminent and serious threat to person, animal has been observed to have through 30 minutes post detonation. vessel, or aircraft, and to the extent cleared the area and is heading away Aerial survey support shall be utilized vessels are restricted in the ability to from the buffer zone. whenever assets are available. maneuver. (E) Post-exercise monitoring of the (C) Detonation operations shall be (2) When transiting within the critical entire target area shall take place with conducted during daylight hours only. habitat or associated area of concern, ‘‘Big Eyes’’ and the naked eye during the (D) If a marine mammal is sighted vessels shall use extreme caution and retrieval of the IMPASS sonobuoy array within the ZOI, the animal shall be operate at a safe speed (the minimum following each firing exercise. allowed to leave of its own volition. The speed at which mission goals or safety (F) FIREX with IMPASS shall take Navy shall suspend detonation exercises will not be compromised) so as to be place during daylight hours only. and ensure the area is clear of marine able to avoid collisions with North (G) FIREX with IMPASS shall only be mammals for a full 30 minutes prior to Atlantic right whales and other marine used in Beaufort Sea State three (3) or detonation. mammals, and stop within a distance less. (E) Divers placing the charges on appropriate to the circumstances and (H) The visibility must be such that mines and dive support vessel conditions. the fall of shot is visible from the firing personnel shall survey the area for (3) Speed reductions (adjustments) are ship during the exercise. marine mammals and shall report any required when a whale is sighted by a (I) No firing shall occur if marine sightings to the surface observers. These vessel or when the vessel is within 9 km mammals are detected within 70 yd (64 animals shall be allowed to leave of (5 NM) of a reported new sighting less m) of the vessel. their own volition and the ZOI shall be than one week old. (ii) Air-to-Surface At-Sea Bombing clear of marine mammals for 30 minutes (4) Ships transiting in the Cape Cod Exercises (250-lbs to 2,000-lbs explosive prior to detonation. Bay and Great South Channel critical bombs): (F) No detonations shall take place habitats shall obtain information on (A) Aircraft shall visually survey the within 3.2 nm (6 km) of an estuarine recent whale sightings in the vicinity of target and buffer zone for marine inlet (Chesapeake Bay Inlets). the critical habitat. Any vessel operating mammals prior to and during the (G) No detonations shall take place in the vicinity of a North Atlantic right exercise. The survey of the impact area within 1.6 nm (3 km) of shoreline. whale shall consider additional speed shall be made by flying at 1,500 ft (457 (H) Personnel shall record any reductions per Rule 6 of International m) altitude or lower, if safe to do so, and protected species observations during Navigational Rules. at the slowest safe speed. the exercise as well as measures taken (4) Mitigation Measures for Specific (B) A buffer zone of 5,100-yd (4,663 if species are detected within the ZOI. At-sea Training Events—If a marine m) radius shall be established around (b) [Reserved] mammal is killed as a result of the the intended target zone. The exercises proposed Navy training activities (e.g., shall be conducted only when marine § 218.5 Requirements for monitoring and reporting. instances in which it is clear that mammals are observed to be outside the munitions explosions caused the death), buffer zone. (a) The Holder of the Letter of the Navy shall suspend its activities (C) At-sea BOMBEXs using live Authorization issued pursuant to immediately and report the incident to ordnance shall occur during daylight § 216.106 of this chapter and § 218.7 for NMFS. hours only. activities described in § 218.1(c) is (i) Firing Exercise (FIREX) Using the (iii) Air-to-Surface Missile Exercises required to cooperate with the NMFS Integrated Maritime Portable Acoustic (Explosive): when monitoring the impacts of the Scoring System (IMPASS) (5-in. (A) Aircraft shall initially survey the activity on marine mammals. Explosive Rounds): intended ordnance impact area for (b) The Holder of the Authorization (A) FIREX using IMPASS would only marine mammals. must notify NMFS immediately (or as be conducted in the four designated (B) During the actual firing of the soon as clearance procedures allow) if areas specified in the Navy’s LOA weapon, the aircraft involved must be the specified activity identified in application in the VACAPES Range able to observe the intended ordnance § 218.1(c) is thought to have resulted in Complex. impact area to ensure the area is free of the mortality or serious injury of any (B) Pre-exercise monitoring of the marine mammal transiting the range. marine mammals, or in any take of target area shall be conducted with ‘‘Big (C) Visual inspection of the target area marine mammals not identified in Eyes’’ prior to the event, during shall be made by flying at 1,500 ft (457 § 218.2(c). deployment of the IMPASS sonobuoy m) altitude or lower, if safe to do so, and (c) The Navy must conduct all array, and during return to the firing at slowest safe speed. monitoring and required reporting position. Ships shall be required to (D) Explosive ordnance shall not be under the Letter of Authorization, maintain a lookout dedicated to visually targeted to impact within 1,800 yd including abiding by the VACAPES searching for marine mammals 180° (1,646 m) of sighted marine mammals. Range Complex Monitoring Plan, which along the ship track line and 360° at (iv) Mine Neutralization Training is incorporated herein by reference, and each buoy drop-off location. Involving Underwater Detonations (up which requires the Navy to implement, (C) ‘‘Big Eyes’’ on the ship shall be to 20-lb charges): at a minimum, the monitoring activities used to monitor a 600 yd (548 m) buffer (A) This activity shall only occur in summarized below. zone around the target area for marine W–50 of the VACAPES Range Complex. (1) Vessel or aerial surveys. (i) The mammals during naval-gunfire events. (B) Observers shall survey the Zone of Holder of this Authorization shall (D) Ships shall not fire on the target Influence (ZOI), a 700 yd (640 m) radius visually survey a minimum of 2 if any marine mammals are detected from detonation location for marine explosive events per year, one of which within or approaching the 600 yd (548 mammals from all participating vessels shall be a multiple detonation event.

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One of the vessel or aerial surveys (particularly for species such as beaked R&D, and current science to use for should involve professionally trained whales that are rarely seen). potential modification of mitigation or marine mammal observers (MMOs). (iii) The array shall have the monitoring methods. (ii) Where operationally feasible, for capability of detecting low frequency (3) A detailed description of the specified training events, aerial or vessel vocalizations (<1,000 Hz) for baleen Monitoring Workshop to be convened in surveys shall be used 1–2 days prior to, whales and relatively high frequency 2011 and how and when Navy/NMFS during (if reasonably safe), and 1–5 days (up to 30 kHz) for odontocetes. The use will subsequently utilize the findings of post detonation. of two simultaneously deployed arrays the Monitoring Workshop to potentially (iii) Surveys shall include any can also allow more accurate modify subsequent monitoring and specified exclusion zone around a localization and determination of diving mitigation. particular detonation point plus 2,000 patterns. (4) An adaptive management plan. yards beyond the border of the (3) Marine mammal observers on (5) A method for standardizing data exclusion zone (i.e., the circumference Navy platforms. (i) As required in collection for VACAPES Range Complex of the area from the border of the § 218.5(c)(1), MMOs selected for aerial and across range complexes. exclusion zone extending 2,000 yards or vessel survey shall be placed on a (e) General Notification of Injured or outwards). For vessel based surveys a Navy platform during one of the Dead Marine Mammals—Navy passive acoustic system (hydrophone or explosive exercises being monitored per personnel shall ensure that NMFS towed array) could be used to determine year, the other designated exercise shall (regional stranding coordinator) is if marine mammals are in the area be monitored by the Navy lookouts/ notified immediately (or as soon as before and/or after a detonation event. watchstanders. clearance procedures allow) if an (iv) When conducting a particular (ii) The MMO must possess expertise injured or dead marine mammal is survey, the survey team shall collect: in species identification of regional found during or shortly after, and in the (A) Location of sighting; marine mammal species and experience vicinity of, any Navy training exercise (B) Species (if not possible, indicate collecting behavioral data. utilizing underwater explosive whale, dolphin or pinniped); (iii) MMOs shall not be placed aboard detonations. The Navy shall provide (C) Number of individuals; Navy platforms for every Navy training NMFS with species or description of the (D) Whether calves were observed; event or major exercise, but during animal(s), the condition of the animal(s) (E) Initial detection sensor; specifically identified opportunities (including carcass condition if the (F) Length of time observers deemed appropriate for data collection animal is dead), location, time of first maintained visual contact with marine efforts. The events selected for MMO discovery, observed behaviors (if alive), mammal; participation shall take into account and photo or video (if available). (G) Wave height; safety, logistics, and operational (f) Annual VACAPES Range Complex (H) Visibility; concerns. Monitoring Plan Report—The Navy (I) Whether sighting was before, (iv) MMOs shall observe from the shall submit a report annually on March during, or after detonations/exercise, same height above water as the 1 describing the implementation and and how many minutes before or after; lookouts. (J) Distance of marine mammal from (v) The MMOs shall not be part of the results (through January 1 of the same actual detonations (or target spot if not Navy’s formal reporting chain of year) of the VACAPES Range Complex yet detonated); command during their data collection Monitoring Plan. Data collection (K) Observed behavior— efforts; Navy lookouts shall continue to methods shall be standardized across Watchstanders shall report, in plain serve as the primary reporting means range complexes to allow for language and without trying to within the Navy chain of command for comparison in different geographic categorize in any way, the observed marine mammal sightings. The only locations. Although additional behavior of the animal(s) (such as exception is that if an animal is information will also be gathered, the animal closing to bow ride, paralleling observed within the shutdown zone that MMOs collecting marine mammal data course/speed, floating on surface and has not been observed by the lookout, pursuant to the VACAPES Range not swimming etc.), including speed the MMO shall inform the lookout of the Complex Monitoring Plan shall, at a and direction; sighting and the lookout shall take the minimum, provide the same marine (L) Resulting mitigation appropriate action through the chain of mammal observation data required in implementation—Indicate whether command. the data required in § 218.5(g). The explosive detonations were delayed, (vi) The MMOs shall collect species VACAPES Range Complex Monitoring ceased, modified, or not modified due to identification, behavior, direction of Plan Report may be provided to NMFS marine mammal presence and for how travel relative to the Navy platform, and within a larger report that includes the long; and distance first observed. Information required Monitoring Plan Reports from (M) If observation occurs while collected by MMOs be the same as those VACAPES Range Complex and multiple explosives are detonating in the water, collected by Navy lookout/ range complexes. indicate munition type in use at time of watchstanders described in (g) Annual VACAPES Range Complex marine mammal detection. § 218.5(c)(1)(iv). Exercise Report—The Navy shall (2) Passive acoustic monitoring—the (d) The Navy shall complete an provide the information described Navy shall conduct passive acoustic Integrated Comprehensive Monitoring below for all of their explosive monitoring when operationally feasible. Program (ICMP) Plan in 2009. This exercises. Until the Navy is able to (i) Any time a towed hydrophone planning and adaptive management tool report in full the information below, array is employed during shipboard shall include: they shall provide an annual update on surveys the towed array shall be (1) A method for prioritizing the Navy’s explosive tracking methods, deployed during daylight hours for each monitoring projects that clearly including improvements from the of the days the ship is at sea. describes the characteristics of a previous year. (ii) The towed hydrophone array shall proposal that factor into its priority. (1) Total annual number of each type be used to supplement the ship-based (2) A method for annually reviewing, of explosive exercise (of those identified systematic line-transect surveys with NMFS, monitoring results, Navy as part of the ‘‘specified activity’’ in this

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final rule) conducted in the VACAPES renewed annually subject to annual will be published in the Federal Range Complex. renewal conditions in § 218.8. Register. (2) Total annual expended/detonated (b) Each Letter of Authorization will (d) NMFS, in response to new rounds (missiles, bombs, etc.) for each set forth: information and in consultation with explosive type. (1) Permissible methods of incidental the Navy, may modify the mitigation or (h) VACAPES Range Complex 5-yr taking; monitoring measures in subsequent Comprehensive Report—The Navy shall (2) Means of effecting the least LOAs if doing so creates a reasonable submit to NMFS a draft report that practicable adverse impact on the likelihood of more effectively analyzes and summarizes all of the species, its habitat, and on the accomplishing the goals of mitigation multi-year marine mammal information availability of the species for and monitoring set forth in the preamble gathered during the VACAPES Range subsistence uses (i.e., mitigation); and of these regulations. Below are some of Complex exercises for which annual (3) Requirements for mitigation, the possible sources of new data that reports are required (Annual VACAPES monitoring and reporting. could contribute to the decision to Range Complex Exercise Reports and (c) Issuance and renewal of the Letter modify the mitigation or monitoring VACAPES Range Complex Monitoring of Authorization will be based on a measures: Plan Reports). This report shall be determination that the total number of (1) Results from the Navy’s submitted at the end of the fourth year marine mammals taken by the activity monitoring from the previous year of the rule (May 2013), covering as a whole will have no more than a (either from VACAPES Range Complex activities that have occurred through negligible impact on the affected species or other locations). December 1, 2012. or stock of marine mammal(s). (2) Findings of the Monitoring (i) The Navy shall respond to NMFS’ § 218.8 Renewal of Letters of Workshop that the Navy will convene in comments and requests for additional Authorization and adaptive management. 2011 (§ 218.5(j)). information or clarification on the (a) A Letter of Authorization issued (3) Compiled results of Navy funded VACAPES Range Complex under § 216.106 of this chapter and research and development (R&D) studies Comprehensive Report, the Annual § 218.7 for the activity identified in (presented pursuant to the ICMP VACAPES Range Complex Exercise § 218.1(c) will be renewed annually (§ 218.5(d)). Report, or the Annual VACAPES Range upon: (4) Results from specific stranding Complex Monitoring Plan Report (or the (1) Notification to NMFS that the investigations (either from the VACAPE multi-Range Complex Annual activity described in the application Range Complex Study Area or other Monitoring Plan Report, if that is how submitted under § 218.6 will be locations, and involving coincident the Navy chooses to submit the undertaken and that there will not be a explosives training or not involving information) if submitted within 3 substantial modification to the coincident use). months of receipt. These reports shall be described work, mitigation or (5) Results from general marine considered final after the Navy has monitoring undertaken during the mammal and sound research (funded by addressed NMFS’ comments or upcoming 12 months; the Navy or otherwise). provided the requested information, or (2) Timely receipt of the monitoring (6) Any information which reveals three months after the submittal of the reports required under § 218.5(c) that marine mammals may have been draft if NMFS does not comment by through (i); and taken in a manner, extent or number not then. (3) A determination by NMFS that the authorized by these regulations or (j) In 2011, the Navy shall convene a mitigation, monitoring and reporting subsequent Letters of Authorization. measures required under § 218.4 and the Monitoring Workshop in which the § 218.9 Modifications to Letters of Monitoring Workshop participants will Letter of Authorization issued under Authorization. be asked to review the Navy’s § 216.106 of this chapter and § 218.7, (a) Except as provided in paragraph Monitoring Plans and monitoring results were undertaken and will be undertaken (b) of this section, no substantive and make individual recommendations during the upcoming annual period of modification (including withdrawal or (to the Navy and NMFS) of ways of validity of a renewed Letter of suspension) to the Letter of improving the Monitoring Plans. The Authorization. Authorization by NMFS, issued recommendations shall be reviewed by (b) If a request for a renewal of a pursuant to § 216.106 of this chapter the Navy, in consultation with NMFS, Letter of Authorization issued under and § 218.7 and subject to the and modifications to the Monitoring § 216.106 of this chapter and § 218.8 provisions of this subpart shall be made Plan shall be made, as appropriate. indicates that a substantial modification to the described work, mitigation or until after notification and an § 218.6 Applications for Letters of monitoring undertaken during the opportunity for public comment has Authorization. upcoming season will occur, NMFS will been provided. For purposes of this To incidentally take marine mammals provide the public a period of 30 days paragraph, a renewal of a Letter of pursuant to these regulations in this for review and comment on the request. Authorization under § 218.8, without subpart, the U.S. citizen (as defined by Review and comment on renewals of modification (except for the period of § 216.103) conducting the activity Letters of Authorization are restricted validity), is not considered a substantive identified in § 218.1(c) (the U.S. Navy) to: modification. must apply for and obtain either an (1) New cited information and data (b) If the Assistant Administrator initial Letter of Authorization in indicating that the determinations made determines that an emergency exists accordance with § 218.7 or a renewal in this document are in need of that poses a significant risk to the well- under § 218.8. reconsideration, and being of the species or stocks of marine (2) Proposed changes to the mitigation mammals specified in § 218.2(c), a § 218.7 Letters of Authorization. and monitoring requirements contained Letter of Authorization issued pursuant (a) A Letter of Authorization, unless in these regulations or in the current to § 216.106 of this chapter and § 218.7 suspended or revoked, will be valid for Letter of Authorization. may be substantively modified without a period of time not to exceed the period (c) A notice of issuance or denial of prior notification and an opportunity for of validity of this subpart, but must be a renewal of a Letter of Authorization public comment. Notification will be

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published in the Federal Register SUPPLEMENTARY INFORMATION: Extensive migration, surfacing, nursing, breeding, within 30 days subsequent to the action. supplementary information was feeding, or sheltering, to a point where such behavioral patterns are abandoned or [FR Doc. E9–13697 Filed 6–8–09; 4:15 pm] provided in the proposed rule for this activity, which was published in the significantly altered [Level B Harassment]. BILLING CODE 3510–22–P Federal Register on Wednesday, Summary of Request December 17, 2008 (73 FR 76578). This On March 17, 2008, NMFS received information will not be reprinted here DEPARTMENT OF COMMERCE an application from the Navy requesting in its entirety; rather, all sections from authorization for the take of six species the proposed rule will be represented National Oceanic and Atmospheric of cetaceans incidental to the proposed herein and will contain either a Administration training activities in the JAX Range summary of the material presented in Complex over the course of 5 years. On the proposed rule or a note referencing 50 CFR Part 218 November 7, 2008, the Navy submitted the page(s) in the proposed rule where an Addendum with some modifications RIN 0648–AW79 the information may be found. Any and additional information to its information that has changed since the Taking and Importing Marine original request. These training proposed rule was published will be Mammals; U.S. Navy Training in the activities are classified as military addressed herein. Additionally, this Jacksonville Range Complex readiness activities. The Navy states that final rule contains a section that these training activities may cause AGENCY: National Marine Fisheries responds to the comments received various impacts to marine mammal Service (NMFS), National Oceanic and during the public comment period. species in the proposed JAX Range Atmospheric Administration (NOAA), Complex area. The Navy requests an Commerce. Background authorization to take individuals of ACTION: Final rule. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct these cetacean species by Level B SUMMARY: NMFS, upon application from the Secretary of Commerce (Secretary) Harassment. Further, the Navy requests the U.S. Navy (Navy), is issuing to allow, upon request, the incidental, authorization to take 2 individual regulations to govern the unintentional but not intentional taking of marine Atlantic spotted dolphins per year by taking of marine mammals incidental to mammals by U.S. citizens who engage injury incidental to the proposed activities conducted off the Charleston/ in a specified activity (other than training activities in the JAX Range Jacksonville (JAX) Range Complex for commercial fishing) during periods of Complex. Please refer to Table 5 of this the period of June 2009 through June not more than five consecutive years document for detailed information of 2014. The Navy’s activities are each if certain findings are made and the potential exposures from explosive considered military readiness activities regulations are issued or, if the taking is ordnance (per year) for marine pursuant to the Marine Mammal limited to harassment and of no more mammals in the JAX Range Complex. Protection Act (MMPA), as amended by than 1 year, the Secretary shall issue a However, due to the proposed the National Defense Authorization Act notice of proposed authorization for mitigation and monitoring measures, for Fiscal Year 2004 (NDAA). These public review. NMFS does not expect the proposed regulations, which allow for the Authorization shall be granted if action would result in any marine issuance of ‘‘Letters of Authorization’’ NMFS finds that the taking will have a mammal mortality. Therefore, no (LOAs) for the incidental take of marine negligible impact on the species or mortality would be authorized for the mammals during the described activities stock(s), will not have an unmitigable Navy’s JAX Range Complex training and specified timeframes, prescribe the adverse impact on the availability of the activities. permissible methods of taking and other species or stock(s) for subsistence uses, Background of Navy Request means of effecting the least practicable and if the permissible methods of taking adverse impact on marine mammal and requirements pertaining to the The proposed rule contains a species and their habitat, as well as mitigation, monitoring and reporting of description of the Navy’s mission, their requirements pertaining to the such taking are set forth. responsibilities pursuant to Title 10 of monitoring and reporting of such taking. NMFS has defined ‘‘negligible the United States Code, and the specific purpose and need for the activities for DATES: impact’’ in 50 CFR 216.103 as: Effective June 8, 2009 and is which they requested incidental take applicable to the Navy on June 5, 2009 An impact resulting from the specified authorization. The description activity that cannot be reasonably expected through June 4, 2014. contained in the proposed rule has not ADDRESSES: A copy of the Navy’s to, and is not reasonably likely to, adversely affect the species or stock through effects on changed (73 FR 76578; December 17, application (which contains a list of the annual rates of recruitment or survival. 2008). references used in this document), NMFS’ Record of Decision (ROD), and The NDAA (Pub. L. 108–136) Description of the Specified Activities other documents cited herein may be removed the ‘‘small numbers’’ and The proposed rule contains a obtained by writing to Michael Payne, ‘‘specified geographical region’’ complete description of the Navy’s Chief, Permits, Conservation and limitations and amended the definition specified activities that are covered by Education Division, Office of Protected of ‘‘harassment’’ as it applies to a these final regulations, and for which Resources, National Marine Fisheries ‘‘military readiness activity’’ to read as the associated incidental take of marine Service, 1315 East-West Highway, Silver follows (Section 3(18)(B) of the MMPA): mammals will be authorized in the Spring, MD 20910–3225 or by telephone (i) Any act that injures or has the related LOAs. The proposed rule via the contact listed here (see FOR significant potential to injure a marine describes the nature and number of the FURTHER INFORMATION CONTACT). mammal or marine mammal stock in the wild training activities. These training [Level A Harassment]; or (ii) any act that FOR FURTHER INFORMATION CONTACT: disturbs or is likely to disturb a marine activities consist of surface warfare Shane Guan, Office of Protected mammal or marine mammal stock in the wild [Missile Exercise (MISSILEX)], mine Resources, NMFS, (301) 713–2289, ext. by causing disruption of natural behavioral warfare [Mine Exercises (MINEX)], 137. patterns, including, but not limited to, amphibious warfare [Firing Exercise

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(FIREX)], small arms training (explosive The Navy provided the following these training events. For modeling hand grenades), and vessel movement additional information regarding the purposes, and to account for the highest to, from, and within the JAX Range anti-swimmer grenade training. Any number of grenades that may potentially Complex Study Area. The description of single event using the MK3A2 grenades be used during an individual event, it the action contained in the proposed could consist of up to 10 high explosive was assumed that there would be 8 rule has not changed (73 FR 76578, (HE) grenades being used. The total events (up to 10 grenades per event), or pages 76579–76581). Table 1 number of HE grenades used per year a total of 80 grenades, per year. summarizes the nature and level of will not exceed 80. Non-explosive these planned activities. practice grenades may also be used in

TABLE 1—TRAINING EVENTS INVOLVING EXPLOSIVES PLANNED IN THE JAX RANGE COMPLEX PER YEAR

Operation Platform System/ordnance Number of events Event duration

Missile Exercise (MISSILEX) MH–60R/S, SH–60B, HH– AGM–114 (Hellfire missile) .... 70 sorties (70 missiles) ...... 1 hour. (Air to Surface). 60H. P–3C, and P–8A ...... AGM–65 (Maverick missile) ... 3 sorties (3 missiles) ...... 1 hour. Mine Neutralization ...... EOD ...... 20 lb charges ...... 12 events ...... 6–8 hours. FIREX with IMPASS ...... CG, DDG ...... 5″ gun (IMPASS) ...... 10 events (390 rounds) ...... 8 hours. Small Arms Training (explo- Maritime Expeditionary Sup- MK3A2 anti-swimmer gre- 8 events (10 grenades per 1 hour. sive hand grenades). port Group (Various Small nades (HE). event). Boats).

JAX Range Complex a description of the areas in which occur and their frequency of occurrence. The JAX Range Complex proposed certain types of activities will occur. The description of the JAX Range rule contains a description of the JAX Table 2, included here, summarizes the Complex Study Area in the proposed Range Complex Study Area along with areas in which explosive events will rule has not changed.

TABLE 2—NUMBER OF EVENTS UTILIZING EXPLOSIVE MUNITIONS WITHIN THE JAX RANGE COMPLEX

Annual Sub-area* Ordnance Winter Spring Summer Fall total events

MISSILEX ...... 73 MLTR ...... Hellfire ...... 17 .5 17 .5 17.5 17 .5 70 MLTR ...... Maverick ...... 0 .75 0.75 0 .75 0.75 3 FIREX ...... 10 BB, CC ...... 5″ rounds ...... **0 **0 5 5 10 MINEX ...... 12 UNDET North ...... 20 LB ...... 1.25 1.25 2 .25 1.25 6 UNDET South ...... 20 LB ...... 1.25 1 .25 2.25 1.25 6 Small Arms Training ...... *** 8 UNDET North...... MK3A2 anti-swimmer concussion 1 1 1 1 4 grenade (0.5 lbs NEW). UNDET Sorth...... MK3A2 anti-swimmer concussion 1 1 1 1 4 grenade (0.5 lbs NEW). * See Figure 1 of the LOA application for the location of sub-areas. ** In accordance with the current biological opinion for the Southeast, no live FIREX is conducted during North Atlantic right whale calving sea- son (December 1–March 31) and therefore no modeling was completed for the winter and spring season. *** (10 grenades per event)

Description of Marine Mammals in the the Federal status of these marine rule also includes a discussion of the Area of the Specified Activities mammal species. Six marine mammal methods used to estimate marine There are 29 marine mammal species species listed as Federally endangered mammal density in the JAX Study Area. with possible or confirmed occurrence under the Endangered Species Act The Description of Marine Mammals in in the JAX Range Complex. As indicated (ESA) occur in the JAX Range Complex: the Area of the Specified Activities in Table 3, all of the marine mammals the humpback whale, North Atlantic section has not changed from what was are cetacean species (7 mysticetes and right whale, sei whale, fin whale, blue in the proposed rule (73 FR 75631, 22 odontocetes). Table 6 also includes whale, and sperm whale. The proposed pages 76581–76582).

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE JAX RANGE COMPLEX

Family and scientific name Common name Federal status

Order Cetacea

Suborder Mysticeti (baleen whales)

Eubalaena glacialis ...... North Atlantic right whale ...... Endangered.

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TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE JAX RANGE COMPLEX—Continued

Family and scientific name Common name Federal status

Megaptera novaeangliae ...... Humpback whale ...... Endangered. Balaenoptera acutorostrata ...... Minke whale. B. brydei ...... Bryde’s whale. B. borealis ...... Sei whale ...... Endangered. B. physalus ...... Fin whale ...... Endangered. B. musculus ...... Blue whale ...... Endangered.

Suborder Odontoceti (toothed whales)

Physeter macrocephalus ...... Sperm whale ...... Endangered. Kogia breviceps ...... Pygmy sperm whale. K. sima ...... Dwarf sperm whale. Ziphius cavirostris ...... Cuvier’s beaked whale. Mesoplodon minus ...... True’s beaked whale. M. europaeus ...... Gervais’ beaked whale. M. densirostris ...... Blainville’s beaked whale. Steno bredanensis ...... Rough-toothed dolphin. Tursiops truncatus ...... Bottlenose dolphin. Stenella attenuate ...... Pantropical spotted dolphin. S. frontalis ...... Atlantic spotted dolphin. S. longirostris ...... Spinner dolphin. S. clymene ...... Clymene dolphin. S. coeruleoalba ...... Striped dolphin. Delphinus delphis ...... Common dolphin. Lagenodephis hosei ...... Fraser’s dolphin. Grampus griseus ...... Risso’s dolphin. Peponocephala electra ...... Melon-headed whale. Feresa attenuate ...... Pygmy killer whale. Pseudorca crassidens ...... False killer whale. Orcinus orca ...... Killer whale. G. macrorhynchus ...... Short-finned pilot whale.

Potential Impacts to Marine Mammal In the Potential Impacts to Marine must treat the sequential explosions Species Mammal Species section of the differently than the single detonations. proposed rule NMFS included a For the MK3A2, two factors are With respect to the MMPA, NMFS’ qualitative discussion of the different involved for the sequential explosives effects assessment serves four primary ways that vessel strikes and underwater that deal with the spatial and temporal purposes: (1) To prescribe the explosive detonations from MISSILEX, distribution of the detonations as well permissible methods of taking (i.e., MINEX, and FIREX may potentially as the effective accumulation of the Level B Harassment (behavioral affect marine mammals (some of which resultant acoustics. In view of the ZOI harassment), Level A Harassment NMFS would not classify as determinations, the sequential (injury), or mortality, including an harassment)—see 73 FR 76578, pages detonations are modeled as a single identification of the number and types 76582–76587. Marine mammals may point event with only the EFD summed of take that could occur by Level A or experience direct physiological effects incoherently: B harassment or mortality) and to such as threshold shift, acoustic prescribe other means of effecting the masking, impaired communications, n () = EFD i /10 least practicable adverse impact on such stress responses, and behavioral Total EFDdB 10log10 ∑ 10 species or stock and its habitat (i.e., disturbance. The information contained i=1 mitigation); (2) to determine whether in Potential Impacts to Marine Mammal Species section from the proposed rule The multiple explosion energy criteria the specified activity will have a were used to determine the ZOI for the negligible impact on the affected species has not changed. The Navy provided additional non-injurious behavioral (without TTS) or stocks of marine mammals (based on information concerning potential exposure analysis. the likelihood that the activity will impacts from MK3A2 anti-swimmer Table 4 shows the ZOI results of the adversely affect the species or stock concussion grenades during small arms model estimation for MK3A2 grenade in through effects on annual rates of training. Modeling was completed for the JAX Range Complex. The ZOI, when recruitment or survival); (3) to the MK3A2 explosive source, which multiplied by the animal densities and determine whether the specified activity assumed a 6 ft (1.8 m) detonation depth. total number of events, provides the will have an unmitigable adverse impact The net explosive weight (NEW) of the exposure estimates for that species. In on the availability of the species or MK3A2 grenade is 0.5 lb. addition to other mitigation measures, stock(s) for subsistence uses (however, Determining the zone of influence lookouts will visually survey the target there are no subsistence communities in (ZOI) of different thresholds from area for marine mammals. The exercise the JAX Range Complex Study Area); MK3A2 explosives in terms of total will not be conducted until the area is and (4) to prescribe requirements energy flux density (EFD), impulse, clear of protected species and will be pertaining to monitoring and reporting. peak pressure and 1/3-octave bands EFD suspended if any enter the buffer area.

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TABLE 4—ESTIMATED ZOIS (KM 2) FOR SMALL ARMS TRAINING (ANTI-SWIMMER GRENADES) IN THE JAX RANGE COMPLEX

Estimated ZOI Estimated ZOI Mortality ZOI @ 177 dB re 1 μPa2-sec (multiple @ 205 dB re 1 μPa2-sec or 13 psi @ 30.5 psi Area* Ordnance detonations only) Win Spr Sum Fall Win Spr Sum Fall Win Spr Sum Fall

UNDET MK3A2 gre- 4.25 4.30 3.97 3.97 0.09 0.09 0.09 0.09 <0.01 <0.01 <0.01 <0.01 North. nade. UNDET MK3A2 gre- 4.67 4.72 4.24 4.59 0.09 0.09 0.09 0.09 <0.01 <0.01 <0.01 <0.01 South. nade. Note: ZOIs for the MK3A2 grenades are modeled as multiple detonations (10 grenades being used during each event). * See Figure 1 of the LOA application for the location of sub-areas.

Later, in the Estimated Take of Marine of types used to chase or hunt the In reviewing more than 25 years of Mammals Section, NMFS relates and animals. This may cause temporary whale observation data, Watkins (1986) quantifies the potential effects to marine displacement, but we know of no clear concluded that whale reactions to vessel mammals from underwater detonation evidence that toothed whales have traffic were ‘‘modified by their previous of explosives discussed here to the abandoned significant parts of their experience and current activity: MMPA definitions of Level A and Level range because of vessel traffic.’’ habituation often occurred rapidly, B Harassment. Baleen whales: ‘‘When baleen whales attention to other stimuli or Additional analyses on potential receive low-level sounds from distant or preoccupation with other activities impacts to marine mammals from vessel stationary vessels, the sounds often sometimes overcame their interest or movement within the JAX Range seem to be ignored. Some whales wariness of stimuli.’’ Watkins noticed Complex Study Area are added below. approach the sources of these sounds. that over the years of exposure to ships Vessel Movement: There are limited When vessels approach whales slowly in the Cape Cod area, minke whales data concerning marine mammal and nonaggressively, whales often (Balaenoptera acutorostrata) changed behavioral responses to vessel traffic from frequent positive (such as and vessel noise, and a lack of exhibit slow and inconspicuous avoidance maneuvers. In response to approaching vessels) interest to consensus among scientists with respect generally uninterested reactions; finback to what these responses mean or strong or rapidly changing vessel noise, baleen whales often interrupt their whales (B. physalus) changed from whether they result in short-term or mostly negative (such as avoidance) to normal behavior and swim rapidly long-term adverse effects. In those cases uninterested reactions; right whales away. Avoidance is especially strong where there is a busy shipping lane or (Eubalaena glacialis) apparently when a boat heads directly toward the where there is large amount of vessel continued the same variety of responses whale.’’ traffic, marine mammals may (negative, uninterested, and positive experience acoustic masking It is important to recognize that responses) with little change; and (Hildebrand, 2005) if they are present in behavioral responses to stimuli are humpbacks (Megaptera novaeangliae) the area (e.g., killer whales in Puget complex and influenced to varying dramatically changed from mixed Sound; Foote et al., 2004; Holt et al., degrees by a number of factors such as responses that were often negative to 2008). In cases where vessels actively species, behavioral contexts, often strongly positive reactions. approach marine mammals (e.g., whale geographical regions, source Watkins (1986) summarized that watching or dolphin watching boats), characteristics (moving or stationary, ‘‘whales near shore, even in regions scientists have documented that animals speed, direction, etc.), prior experience with low vessel traffic, generally have exhibit altered behavior such as of the animal, and physical status of the become less wary of boats and their increased swimming speed, erratic animal. For example, studies have noises, and they have appeared to be movement, and active avoidance shown that beluga whales reacted less easily disturbed than previously. In behavior (Bursk, 1983; Acevedo, 1991; differently when exposed to vessel noise particular locations with intense Baker and MacGibbon, 1991; Trites and and traffic. In some cases, naı¨ve beluga shipping and repeated approaches by Bain, 2000; Williams et al., 2002; whales exhibited rapid swimming from boats (such as the whale-watching areas Constantine et al., 2003), reduced blow ice-breaking vessels up to 80 km away, of Stellwagen Bank), more and more interval (Ritcher et al., 2003), disruption and showed changes in surfacing, whales had P [positive] reactions to of normal social behaviors (Lusseau, breathing, diving, and group familiar vessels, and they also 2003; 2006), and the shift of behavioral composition in the Canadian high occasionally approached other boats activities which may increase energetic Arctic where vessel traffic is rare (Finley and yachts in the same ways.’’ costs (Constantine et al., 2003; 2004). A et al., 1990). In other cases, beluga In the case of the JAX Range Complex, detailed review of marine mammal whales were more tolerant of vessels, naval vessel traffic is expected to be reactions to ships and boats is available but differentially responsive by much lower than in areas where there in Richardson et al. (1995). For each of reducing their calling rates, to certain are large shipping lanes and large the marine mammals taxonomy groups, vessels and operating characteristics numbers of fishing vessels and/or Richardson et al. (1995) provided the (especially older animals) in the St. recreational vessels. Nevertheless, the following assessment regarding cetacean Lawrence River where vessel traffic is proposed action area is well traveled by reactions to vessel traffic: common (Blane and Jaakson, 1994). In a variety of commercial and recreational Toothed whales: ‘‘In summary, Bristol Bay, Alaska, beluga whales vessels, so marine mammals in the area toothed whales sometimes show no continued to feed when surrounded by are expected to be habituated to vessel avoidance reaction to vessels, or even fishing vessels and resisted dispersal noise. approach them. However, avoidance can even when purposefully harassed (Fish As described in the proposed rule, occur, especially in response to vessels and Vania, 1971). operations involving vessel movements

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occur intermittently and are variable in mitigation measures presented in the wording changes have been made to the duration, ranging from a few hours up Navy’s application to determine Personnel Training Lookouts section as to 2 weeks. These operations are widely whether the activities and mitigation presented in the Proposed Rule (page dispersed throughout the JAX Range measures were capable of achieving the 76592). Bullet 6 of that section is Complex OPAREA, which is a vast area least practicable adverse effect on modified to read: ‘‘At night, to increase encompassing 50,090 square nautical marine mammals. effectiveness, lookouts would not miles (nm2). The Navy logs about 1,000 Any mitigation measure prescribed by continuously sweep the horizon with total vessel days within the Study Area NMFS should be known to accomplish, their eyes. Instead, lookouts would scan during a typical year. Consequently, the have a reasonable likelihood of the horizon in a series of movements density of ships within the Study Area accomplishing (based on current that would allow their eyes to come to at any given time is extremely low (i.e., science), or contribute to the periodic rests as they scan the sector. less than 0.00005 ships/nm2). accomplishment of one or more of the When visually searching at night, they Moreover, naval vessels transiting the general goals listed below: would look a little to one side and out study area or engaging in the training (a) Avoidance or minimization of of the corners of their eyes, paying exercises will not actively or injury or death of marine mammals attention to the things on the outer intentionally approach a marine wherever possible (goals b, c, and d may edges of their field of vision. Lookouts mammal or change speed drastically. contribute to this goal). will also have night vision devices Except under certain mitigation (b) A reduction in the numbers of available for use.’’ measures that protect right whales and marine mammals (total number or The Navy’s measures addressing other marine mammals from vessel number at biologically important time operating procedures for training strike, all vessels transit to, from, and or location) exposed to underwater activities using underwater detonation within the range complexes will be detonations or other activities expected of explosives and firing exercises, and traveling at speeds generally ranging to result in the take of marine mammals mitigation related to vessel traffic and from 10 to 14 knots. (this goal may contribute to a, above, or the North Atlantic right whale (NARW) The final rule contains additional to reducing harassment takes only). were described in the proposed rule. No mitigation measures requiring Navy (c) A reduction in the number of times changes have been made to the vessels to keep at least 500 yards (460 (total number or number at biologically mitigation measures described in the m) away from any observed whale and important time or location) individuals proposed rule except the following at least 200 yards (183 m) from marine would be exposed to underwater requirements. mammals other than whales, and avoid detonations or other activities expected During specific at-sea training events, approaching animals head-on. Although to result in the take of marine mammals if a marine mammal is injured or killed the radiated sound from the vessels will (this goal may contribute to a, above, or as a result of the proposed Navy training be audible to marine mammals over a to reducing harassment takes only). activities (e.g., instances in which it is large distance, it is unlikely that animals (d) A reduction in the intensity of clear that munitions explosions caused will respond behaviorally to low-level exposures (either total number or the injury or death), the Navy shall distant shipping noise as the animals in number at biologically important time suspend its activities immediately and the area are likely to be habituated to or location) to underwater detonations report such incident to NMFS. such noises (Nowacek et al., 2004). In or other activities expected to result in Regarding the NARW vessel collision light of these facts, NMFS does not the take of marine mammals (this goal measures, NMFS expanded the final expect the Navy’s vessel movements to may contribute to a, above, or to rule to include vessel collision result in Level B harassment. reducing the severity of harassment avoidance measures for the South Atlantic and the Northeast Atlantic to be Mitigation takes only). (e) A reduction in adverse effects to consistent with the U.S. Navy’s Atlantic In order to issue an incidental take marine mammal habitat, paying special Fleet Active Sonar Training (AFAST) authorization (ITA) under Section attention to the food base, activities that rule. The Navy is required to comply 101(a)(5)(A) of the MMPA, NMFS must block or limit passage to or from with the same ship collision measures prescribe regulations setting forth the biologically important areas, permanent while transiting and conducting ‘‘permissible methods of taking destruction of habitat, or temporary exercises within specific NARW areas pursuant to such activity, and other destruction/disturbance of habitat along the East Coast. The specific vessel means of effecting the least practicable during a biologically important time. collision measures in the Northeast and adverse impact on such species or stock (f) For monitoring directly related to Southeast Atlantic regions are listed in and its habitat, paying particular mitigation—an increase in the the regulatory text of the final rule. attention to rookeries, mating grounds, probability of detecting marine NMFS has determined that these and areas of similar significance.’’ The mammals, thus allowing for more mitigation measures (which include a NDAA amended the MMPA as it relates effective implementation of the suite of measures that specifically to military readiness activities and the mitigation (shut-down zone, etc.). address vessel transit and the NARW) incidental take authorization process NMFS reviewed the Navy’s proposed are adequate means of effecting the least such that ‘‘least practicable adverse mitigation measures, which included a practicable adverse impacts on marine impact’’ shall include consideration of careful balancing of the likely benefits mammal species or stocks and their personnel safety, practicality of of any particular measure to the marine habitat while also considering personnel implementation, and impact on the mammals with the likely effect of that safety, practicality of implementation, effectiveness of the ‘‘military readiness measure on personnel safety, and impact on the effectiveness of the activity.’’ The JAX Range Complex practicality of implementation, and military readiness activity. training activities described in the impact on the ‘‘military-readiness proposed rule are considered military activity.’’ Monitoring readiness activities. The Navy’s proposed mitigation In order to issue an ITA for an NMFS reviewed the Navy’s proposed measures were described in detail in the activity, Section 101(a)(5)(A) of the JAX Range Complex training activities proposed rule (73 FR 76578; December MMPA states that NMFS must set forth and the proposed JAX Range Complex 17, 2008; pages 76592–76595). Slight ‘‘requirements pertaining to the

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monitoring and reporting of such be viewed at http://www.nmfs.noaa.gov/ • Resulting mitigation taking.’’ The MMPA implementing pr/permits/incidental.htm#applications. implementation—Indicate whether regulations at 50 CFR 216.104(a)(13) The Navy plans to implement all of the explosive detonations were delayed, indicate that requests for LOAs must components of the Monitoring Plan; ceased, modified, or not modified due to include the suggested means of however, only the marine mammal marine mammal presence and for how accomplishing the necessary monitoring components (not the sea turtle long; and and reporting that will result in components) will be required by the • If observation occurs while increased knowledge of the species and MMPA regulations and associated explosives are detonating in the water, of the level of taking or impacts on LOAs. indicate munition type in use at time of populations of marine mammals that are A summary of the monitoring marine mammal detection (e.g., were expected to be present. methods required for use during the 5-inch guns actually firing when the Monitoring measures prescribed by training events in the JAX Range animals were sighted? Did animals enter NMFS should accomplish one or more Complex are described below. These an area 2 minutes after a huge explosion of the following general goals: methods include a combination of went off?). (1) An increase in the probability of individual elements that are designed to detecting marine mammals, both within allow a comprehensive assessment. II. Passive Acoustic Monitoring the safety zone (thus allowing for more I. Vessel or Aerial Surveys The Navy shall conduct passive effective implementation of the acoustic monitoring when operationally mitigation) and in general to generate (A) The Holder of this Authorization feasible: shall visually survey a minimum of 2 more data to contribute to the effects (A) Any time a towed hydrophone explosive events per year, one of which analyses. array is employed during shipboard shall be a multiple detonation event. (2) An increase in our understanding surveys the towed array shall be One of the vessel or aerial surveys of how many marine mammals are deployed during daylight hours for each should involve professionally trained likely to be exposed to levels of of the days the ship is at sea. marine mammal observers (MMOs). underwater detonations or other stimuli (B) The towed hydrophone array shall that we associate with specific adverse (B) When operationally feasible, for specified training events, aerial or vessel be used to supplement the ship-based effects, such as behavioral harassment, systematic line-transect surveys temporary threshold shift of hearing surveys shall be used 1–2 days prior to, during (if reasonably safe), and 1–5 days (particularly for species such as beaked sensitivity (TTS), or permanent whales that are rarely seen). threshold shift of hearing sensitivity post detonation. (PTS). (C) Surveys shall include any III. Marine Mammal Observers on Navy (3) An increase in our understanding specified exclusion zone around a Platforms of how marine mammals respond particular detonation point plus 2,000 yards beyond the border of the (A) Marine mammal observers (behaviorally or physiologically) to (MMOs) selected for aerial or vessel underwater detonations or other stimuli exclusion zone (i.e., the circumference of the area from the border of the survey shall be placed on a Navy expected to result in take and how platform during one of the exercises anticipated adverse effects on exclusion zone extending 2,000 yards outwards). For vessel-based surveys a being monitored per year. The individuals (in different ways and to remaining designated exercise(s) shall varying degrees) may impact the passive acoustic system (hydrophone or towed array) would be used to be monitored by the Navy lookouts/ population, species, or stock watchstanders. (specifically through effects on annual determine if marine mammals are in the area before and/or after a detonation (B) The MMO must possess expertise rates of recruitment or survival). in species identification of regional (4) An increased knowledge of the event. marine mammal species and experience affected species. (D) When conducting a particular (5) An increase in our understanding survey, the survey team shall collect: collecting behavioral data. • Location of sighting; of the effectiveness of certain mitigation (C) MMOs shall not be placed aboard • Species (if not possible, indicate and monitoring measures. Navy platforms for every Navy training whale, dolphin or pinniped); event or major exercise, but during (6) A better understanding and record • Number of individuals; specifically identified opportunities of the manner in which the authorized • Whether calves were observed; entity complies with the incidental take • deemed appropriate for data collection Initial detection sensor; efforts. The events selected for MMO authorization. • Length of time observers participation shall take into account maintained visual contact with marine Proposed Monitoring Plan for the JAX safety, logistics, and operational Range Complex Study Area mammal; • Wave height; concerns. As NMFS indicated in the proposed • Visibility; (D) MMOs shall observe from the rule, the Navy has (with input from • Whether sighting was before, same height above water as the NMFS) fleshed out the details of and during, or after detonations/exercise, lookouts. made improvements to the JAX Range and how many minutes before or after; (E) The MMOs shall not be part of the Complex Monitoring Plan. Additionally, • Distance of marine mammal from Navy’s formal reporting chain of NMFS and the Navy have incorporated actual detonations (or target spot if not command during their data collection a suggestion from the public, which yet detonated); efforts; Navy lookouts shall continue to recommended the Navy hold a peer • Observed behavior—Watchstanders serve as the primary reporting means review workshop to discuss the Navy’s will report, in plain language and within the Navy chain of command for Monitoring Plans for the multiple range without trying to categorize in any way, marine mammal sightings. The only complexes and training exercises in the observed behavior of the animal(s) exception is that if an animal is which the Navy would receive ITAs (see (such as animal closing to bow ride, observed within the shutdown zone that Monitoring Workshop section). The paralleling course/speed, floating on has not been observed by the lookout, final JAX Range Complex Monitoring surface and not swimming etc.), the MMO shall inform the lookout of the Plan, which is summarized below, may including speed and direction; sighting, and the lookout shall take the

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appropriate action through the chain of interested parties, in 2011. The consolidation and analysis of the Navy’s command. Monitoring Workshop participants will monitoring and watchstander data, as (F) The MMOs shall collect species review the monitoring results from the well as new information from other identification, behavior, direction of previous two years of monitoring Navy programs (e.g., R&D), and other travel relative to the Navy platform, and pursuant to the JAX Range Complex rule appropriate newly published distance first observed. All MMO as well as monitoring results from other information. sightings shall be conducted according Navy rules and LOAs (e.g., VACAPES, In combination with the 2011 to a standard operating procedure. AFAST, SOCAL, HRC, and other rules). Monitoring Workshop and the adaptive Information collected by MMOs should The Monitoring Workshop participants management component of the JAX be the same as those collected by Navy would provide their individual Range Complex rule and the other lookout/watchstanders described above. recommendations to the Navy and planned Navy rules (e.g. VACAPES The Monitoring Plan for JAX Range NMFS on the monitoring plan(s) after Range Complex, Cherry Point Range Complex has been designed as a also considering the current science Complex, etc.), the ICMP could collection of focused ‘‘studies’’ (including Navy research and potentially provide a framework for (described fully in the JAX Monitoring development) and working within the restructuring the monitoring plans and Plan) to gather data that will allow the framework of available resources and allocating monitoring effort based on the Navy to address the following questions: feasibility of implementation. NMFS value of particular specific monitoring (a) What are the behavioral responses and the Navy would then analyze the proposals (in terms of the degree to of marine mammals and sea turtles that input from the Monitoring Workshop which results would likely contribute to are exposed to explosives? participants and determine the best way stated monitoring goals, as well the (b) Is the Navy’s suite of mitigation forward from a national perspective. likely technical success of the measures effective at avoiding injury Subsequent to the Monitoring monitoring based on a review of past and mortality of marine mammals and Workshop, modifications would be monitoring results) that have been sea turtles? applied to monitoring plans as developed through the ICMP Data gathered in these studies will be appropriate. framework, instead of allocating based collected by qualified, professional on maintaining an equal (or marine mammal biologists or trained Integrated Comprehensive Monitoring commensurate to effects) distribution of Navy lookouts/watchstanders that are Program monitoring effort across range experts in their field. This monitoring In addition to the site-specific complexes. For example, if careful plan has been designed to gather data on Monitoring Plan for the JAX Range prioritization and planning through the all species of marine mammals that are Complex, the Navy will complete the ICMP (which would include a review of observed in the JAX Range Complex Integrated Comprehensive Monitoring both past monitoring results and current study area. Program (ICMP) Plan by the end of scientific developments) were to show Monitoring Workshop 2009. The ICMP will provide the that a large, intense monitoring effort in overarching coordination that will Hawaii would likely provide extensive, During the public comment period on support compilation of data from robust and much-needed data that could past proposed rules for Navy actions project-specific monitoring plans (e.g., be used to understand the effects of (such as the Hawaii Range Complex JAX Monitoring Plan) as well as Navy sonar throughout different geographical (HRC), and Southern California Range funded research and development (R&D) areas, it may be appropriate to have Complex (SOCAL) proposed rules), studies. The ICMP will coordinate the other range complexes dedicate money, NMFS received a recommendation that monitoring program’s progress towards resources, or staff to the specific a workshop or panel be convened to meeting its goals and developing a data monitoring proposal identified as ‘‘high solicit input on the monitoring plan management plan. The ICMP will be priority’’ by the Navy and NMFS, in lieu from researchers, experts, and other evaluated annually to provide a matrix of focusing on smaller, lower priority interested parties. The JAX Range for progress and goals for the following projects divided throughout their home Complex proposed rule included an year, and will make recommendations range complexes. adaptive management component and on adaptive management for refinement The ICMP will identify: • both NMFS and the Navy believe that a and analysis of the monitoring methods. A means by which NMFS and the workshop would provide a means for The primary objectives of the ICMP Navy would jointly consider prior years Navy and NMFS to consider input from are to: monitoring results and advancing participants in determining whether • Monitor and assess the effects of science to determine if modifications (and if so, how) to modify monitoring Navy activities on protected species; are needed in mitigation or monitoring techniques to more effectively • Ensure that data collected at measures to better effect the goals laid accomplish the goals of monitoring set multiple locations is collected in a out in the Mitigation and Monitoring forth earlier in the document. NMFS manner that allows comparison between sections of the JAX Range Complex rule. and the Navy believe that this workshop and among different geographic • Guidelines for prioritizing concept is valuable in relation to all of locations; monitoring projects. the Range Complexes and major training • Assess the efficacy and practicality • If, as a result of the workshop and exercise rules and LOAs that NMFS is of the monitoring and mitigation similar to the example described in the working on with the Navy at this time, techniques; paragraph above, the Navy and NMFS and consequently this single Monitoring • Add to the overall knowledge-base decide it is appropriate to restructure Workshop will be included as a of marine species and the effects of the monitoring plans for multiple ranges component of all of the rules and LOAs Navy activities on marine species. such that they are no longer evenly that NMFS will be processing for the The ICMP will be used both as: (1) A allocated (by rule), but rather focused on Navy in the next year or so. planning tool to focus Navy monitoring priority monitoring projects that are not The Navy, with guidance and support priorities (pursuant to ESA/MMPA necessarily tied to the geographic area from NMFS, will convene a Monitoring requirements) across Navy Range addressed in the rule, the ICMP will be Workshop, including marine mammal Complexes and Exercises; and (2) an modified to include a very clear and and acoustic experts as well as other adaptive management tool, through the unclassified record-keeping system that

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will allow NMFS and the public to see consider the data and issue annual provide the same marine mammal how each range complex/project is LOAs. NMFS and the Navy will meet observation data required in major range contributing to all of the ongoing annually, prior to LOA issuance, to complex training exercises section of monitoring programs (resources, effort, discuss the monitoring reports, Navy the Annual JAX Range Complex money, etc.). R&D developments, and current science Exercise Report referenced below. and whether mitigation or monitoring The JAX Range Complex Monitoring Adaptive Management modifications are appropriate. Plan Report may be provided to NMFS The final regulations governing the within a larger report that includes the Reporting take of marine mammals incidental to required Monitoring Plan Reports from Navy’s JAX Range Complex exercises In order to issue an ITA for an multiple Range Complexes. contain an adaptive management activity, Section 101(a)(5)(A) of the component. The use of adaptive MMPA states that NMFS must set forth Annual JAX Range Complex Exercise management will give NMFS the ability ‘‘requirements pertaining to the Report to consider new data from different monitoring and reporting of such The Navy is in the process of sources to determine (in coordination taking.’’ Effective reporting is critical to improving the methods used to track with the Navy) on an annual basis if ensure compliance with the terms and explosives use to provide increased mitigation or monitoring measures conditions of a LOA, and to provide granularity. The Navy will provide the should be modified or added (or NMFS and the Navy with data of the information described below for all of deleted) if new data suggests that such highest quality based on the required their explosive exercises. Until the Navy modifications are appropriate (or are not monitoring. As NMFS noted in its is able to report in full the information appropriate) for subsequent annual proposed rule, additional detail has below, they will provide an annual LOAs. been added to the reporting update on the Navy’s explosive tracking Following are some of the possible requirements since they were outlined methods, including improvements from sources of applicable data: in the proposed rule. The updated the previous year. • Results from the Navy’s monitoring reporting requirements are all included (1) Total annual number of each type from the previous year (either from JAX below. A subset of the information of explosive exercise (of those identified Range Complex or other locations). provided in the monitoring reports may as part of the ‘‘specified activity’’ in this • Findings of the Workshop that the be classified and not releasable to the final rule) conducted in the JAX Range Navy will convene in 2011 to analyze public. Complex. monitoring results to date, review NMFS will work with the Navy to (2) Total annual expended/detonated current science, and recommend develop tables that allow for efficient rounds (missiles, bombs, etc.) for each modifications, as appropriate to the submission of the information required explosive type. monitoring protocols to increase below. JAX Range Complex 5-yr monitoring effectiveness. • Compiled results of Navy funded General Notification of Injured or Dead Comprehensive Report research and development (R&D) studies Marine Mammals The Navy shall submit to NMFS a (presented pursuant to the ICMP, which Navy personnel will ensure that draft report that analyzes and is discussed elsewhere in this NMFS (regional stranding coordinator) summarizes all of the multi-year marine document). is notified immediately (or as soon as mammal information gathered during • Results from specific stranding operational security allows) if an the JAX Range Complex exercises for investigations (either from JAX Range injured or dead marine mammal is which annual reports are required Complex or other locations). found during or shortly after, and in the (Annual JAX Range Complex Exercise • Results from general marine vicinity of, any Navy training exercise Reports and JAX Range Complex mammal and sound research (funded by utilizing underwater explosives or other Monitoring Plan Reports). This report the Navy or otherwise). activities. The Navy will provide NMFS will be submitted at the end of the • Any information which reveals that with species or description of the fourth year of the rule (May 2013), marine mammals may have been taken animal(s), the condition of the animal(s) covering activities that have occurred in a manner, extent or number not (including carcass condition if the through December 1, 2012. authorized by these regulations or animal is dead), location, time of first Comments and Responses subsequent Letters of Authorization. discovery, observed behaviors (if alive), Mitigation measures could be and photo or video (if available). On December 17, 2008, NMFS modified or added (or deleted) if new published a proposed rule (73 FR data suggest that such modifications Annual JAX Range Complex 76578) in response to the Navy’s request would have (or would not have) a Monitoring Plan Report to take marine mammals incidental to reasonable likelihood of accomplishing The Navy shall submit a report military readiness training in the JAX the goals of mitigation laid out in this annually on March 1 describing the Range Complex study area and final rule and if the measures are implementation and results (through requested comments, information and practicable. NMFS would also January 1 of the same year) of the JAX suggestions concerning the request. coordinate with the Navy to modify or Range Complex Monitoring Plan During the 30-day public comment add to (or delete) the existing described above. Data collection period, NMFS received comments from monitoring requirements if the new data methods will be standardized across 1 private citizen, comments from the suggest that the addition of (or deletion range complexes to allow for Marine Mammal Commission of) a particular measure would more comparison in different geographic (Commission), comments from the effectively accomplish the goals of locations. Although additional International Fund for Animal Welfare monitoring laid out in this final rule. information will also be gathered, the (IFAW), and comments from the Natural The reporting requirements associated marine mammal observers (MMOs) Resources Defense Council (on behalf of with this rule are designed to provide collecting marine mammal data itself, The Humane Society of the NMFS with monitoring data from the pursuant to the JAX Range Complex United States, Defenders of Wildlife, previous year to allow NMFS to Monitoring Plan shall, at a minimum, International Fund for Animal Welfare,

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Whale and Dolphin Conservation described in the proposed rule represent NC. The right whale was a pregnant Society, Cetacean Society International, a strong effort by the U.S. Navy and female and the cause of death was Ocean Futures Society, and Jean-Michel NMFS to mitigate potential harm to determined to be blood loss owing to a Cousteau). The comments are critically endangered NARW, but they traumatic wound to the left fluke lobe, summarized and sorted into general do not accomplish that goal. The IFAW which was missing, and damage to topic areas and are addressed below. further states that the Navy has been surrounding tissue and bone. The Full copies of the comment letters may involved in ship strikes in the past wound was consistent with that caused be accessed at http:// (specifically, a female NARW and her by a ship strike. Neither NMFS nor the www.regulations.gov. near-term calf in the mid-Atlantic in Navy can confirm or deny that the dead NMFS worked with the Navy to 2004). right whale necropsied on November 24 develop MMPA rules and LOAs for the Response: NMFS appreciates the was the same whale struck by the Navy JAX Range Complex. Many of the issues IFAW’s concern regarding the on November 17. raised in the public comments for this possibility of Navy ships striking North The USCG and Navy have standing rule were also raised for the VACAPES Atlantic right whales and other marine orders to report sightings or collisions. Range Complex rulemaking and NMFS mammal species in the JAX Range Although the NMFS ship strike database considered many of the broader issues Complex Study Area but does not agree reflects a disproportionately high in the context of these two Navy actions with the IFAW’s assessment that NMFS number of ship strikes attributable to when determining how to address the mistakenly reached its conclusion that USCG and Navy vessels over the years, comments. To the extent necessary, the take of NARW is unlikely. this is likely due to the high reporting public may refer to the response to Regarding ship strikes, the Navy’s EIS rate by those agencies relative to other comments section in the VACAPES final concluded that based on the mariners and vessels, rather than a rule (addressing similar issues implementation of Navy mitigation higher incidence of right whale ship identified in the JAX Range Complex measures, especially during times of strikes by Federal agency vessels. These final rule). anticipated NARW occurrence, and the two Federal agencies are actively relatively low density of Navy ships in involved in large whale protection MMPA Concerns the Study Area, the likelihood that a programs and reporting struck or dead Comment 1: The Commission vessel strike would occur is very low. In whales to NMFS is part of their standard recommends that NMFS consult with addition to the standard operating operating procedures. the Navy regarding the possible need to procedures to reduce the likelihood of Comment 4: Citing Nowacek et al. expand the proposed authorization to collisions, which include: (1) Use of (2004) that North Atlantic right whales include additional species that might be lookouts trained to detect all objects on exposed to alarm stimuli ‘‘abandoned taken unexpectedly and a more realistic the surface of the water (including their current foraging dive prematurely, number of takes for species that occur marine mammals); (2) a requirement to * * * executed a shallow-angled, high in groups, including Clymene dolphins, avoid the close interaction of Navy power * * * ascent, remained at or near pantropical spotted dolphins, pilot assets and marine mammals; and (3) the surface’’ for an ‘‘abnormally long’’ whales, and Risso’s dolphins. maneuvering to keep away from any period of time, and ‘‘spent significantly Response: NMFS has consulted with observed marine mammal, the Navy has more time at subsurface depths (1–10 m) the Navy regarding the possibility of issued extensive North Atlantic right compared with normal surfacing additional species that might be taken whale protective measures for all Fleet periods when whales normally stay unexpectedly and a more realistic Forces training activities. These within 1 m of the surface,’’ the IFAW number of takes for species that occur measures, which were developed with states that NARW calves are most in groups. A more detailed analysis is input from NMFS, include additional vulnerable to impacts from collisions provided in the Estimated Take of training requirements, designated areas and noise from ships, helicopters, Marine Mammals section. These of caution (where caution includes bombs and missiles. The IFAW further additional species include minke whale, speed or direction adjustments and concludes that alarm stimuli were a common dolphin, pygmy/dwarf sperm avoidance of known groups of right poor option in attempts to mitigate whales, and several species of beaked whales when feasible) and additional vessel collisions because the whale’s whales. reporting requirements. NMFS and the reaction actually makes ship strikes Comment 2: The Commission Navy believe that the required measures more likely. The IFAW also notes recommends that NMFS revise section will allow the Navy to avoid colliding NMFS’ previous conclusion on North 218.11 of the proposed regulation to with large whales during their specified Atlantic right whales that the ‘‘loss of clarify that the authorized numbers of activities. The Navy neither requested, even a single individual right whale takes are annual limits that would be nor did NMFS grant, authorization for may contribute to the extinction of the applicable over a five-year period. take of right whales from ship strikes species,’’ and that ‘‘preventing the Response: NMFS has revised this incidental to the specified activities. mortality of one adult female alters the section in the final rule to clarify that Regarding the right whale strike in projected outcome.’’ the authorized numbers of takes are 2004, the commenter is most likely Response: NMFS is aware of the annual limits that will be applicable referring to an event that took place on Nowacek et al. (2004) study on the over a five-year period. November 17, 2004. On November 17 at North Atlantic right whale response to Comment 3: The IFAW states that it about 10:30 a.m. a Navy amphibious strong anthropogenic noise. The study is concerned with the possibility of assault ship struck a large whale off the consisted of a controlled sound Navy ships striking North Atlantic right Chesapeake Light House. A few hours exposure on right whales and concluded whales (NARW) in the JAX Range later, around noon, a fisherman that the whales reacted strongly to the Complex Study Area, and states that contacted the Virginia Aquarium alarm signal, but failed to respond to NMFS mistakenly concludes that take stranding hotline and reported a live sounds of approaching vessels or the permits are unnecessary despite the fact injured large whale with a fresh wound vessels themselves. In addition, the data that the proposed exercise area overlaps on the tail where the left fluke lobe was revealed that the whales responded to right whale critical habitat. The IFAW missing. On November 24, a dead right the alarm stimuli by swimming strongly observes that the mitigation measures whale was necropsied at Ocean Sands, to the surface, a response likely to

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increase the probability of a vessel/ synthesis of available scientific Modeling (CREEM). Draft models and whale collision. However, alarm stimuli literature (e.g., journals, periodicals, preliminary results were reviewed are not a concern for this particular theses, dissertations, project reports, during a joint workshop attended by rulemaking. The Navy has neither and other technical reports published by Navy, NMFS Science Center, and proposed using, nor is NMFS requiring government agencies, private CREEM representatives. Subsequent alarm stimuli to minimize vessel strikes businesses, or consulting firms), and revisions and draft reports were associated with activities in the JAX NMFS reports including stock reviewed by these same parties. Range Complex. Therefore, in the assessment reports, recovery plans, and Therefore, NMFS considers that the context of this rulemaking, alarm survey reports. NODE has already gone through an stimuli are not a concern. As far as the Commission’s independent review process. As the IFAW suggests, the loss of even recommendation regarding peer-review Comment 6: The IFAW points out that one right whale would have serious of the NODE data, the density estimates even taking for granted the Navy’s and effects on the population; however, as that were used in previous Navy NMFS’ distribution information, NMFS discussed in the proposed rule and environmental documents have been ignores the Navy’s request for take above, NMFS does not expect a NARW recently updated to provide a permits for 2 Atlantic spotted dolphins, to be taken by naval exercises in the JAX compilation of the most recent data and instead deciding that take will be less Range Complex, including the southern information on the occurrence, than estimated due to mitigation and right whale critical habitat. distribution, and density of marine monitoring measures. IFAW concludes Additionally, this zero take estimate mammals. The updated density that NMFS’ determination is incorrect does not account for the mitigation estimates used for the analyses are where Atlantic spotted dolphins are measures that will be implemented for derived from the Navy OPAREA Density likely to suffer physical injury resulting the JAX Range Complex training Estimates (NODE) for the Southeast from exposure to noise in excess of 205 activities, which include a prohibition OPAREAS report (DON, 2007). dB. The IFAW considers that the of approaching right whales within 500 Density estimates for cetaceans were Atlantic spotted dolphins’ small size yards and not conducting training either modeled using available line- and ability to move quickly will make within the vicinity of recently sighted transect survey data or derived using them difficult to detect by Navy’s whales. NMFS was able to determine available data in order of preference: (1) lookouts or other detection systems. that the Navy’s JAX Range Complex Through spatial models using line- Therefore, the IFAW states NMFS’ training activities would not result in a transect survey data provided by NMFS; proposal to not grant take permits is take of NARWs. (2) using abundance estimates from arbitrary and capricious. Comment 5: The IFAW states that the Mullin and Fulling (2003); (3) or based Response: NMFS does not agree with Navy’s and NMFS’s distribution on the cetacean abundance estimates the IFAW comment. NMFS did not assumptions may be flawed in that they found in the most current NMFS stock ignore the Navy’s request for take of two are likely to overestimate the number of assessment report (SAR) (Waring et al., Atlantic spotted dolphins by Level A marine mammals in some areas while 2007), which can be viewed at: http:// harassment. As shown in Table 11 of the underestimating the number in others. www.nefsc.noaa.gov/publications/tm/ proposed rule for the JAX Range The Commission recommends NMFS tm210/. Complex training activities (73 FR defer promulgation of a final rule until For the model-based approach, 76578; December 17, 2008), and in it and/or the Navy conducts an density estimates were calculated for Table 5 of this final rule, the Navy independent peer review of the methods each species within areas containing modeled take estimates for various used to derive marine mammal density survey effort. A relationship between cetacean species, including Atlantic estimates in the Navy OPAREA Density these density estimates and the spotted dolphins, and NMFS has Estimates (NODE) report. associated environmental parameters adopted the Navy’s estimates for this Response: NMFS does not agree with such as depth, slope, distance from the rulemaking. Please refer to the proposed the IFAW’s statement that the Navy and shelf break, sea surface temperature, and rule (73 FR 76578; December 17, 2008) NMFS have used flawed data in chlorophyll a concentration was for clarification. NMFS has, through this estimating the number of takes of formulated using generalized additive final rule, established a framework that marine mammals. Though it is a fair models. This relationship was then used would allow the Navy to take a assessment that animal distributions in to generate a two-dimensional density specified number of Atlantic spotted the water column are often uneven, the surface for the region by predicting dolphins by Level A harassment marine mammal information contained densities in areas where no survey data incidental to naval exercises in the JAX in the analyses relies heavily on the data exist. Range Complex. gathered in the Marine Resource The analyses for cetaceans were based Comment 7: The IFAW points out that Assessments (MRAs). The Navy MRA on sighting data collected through the U.S. Navy and NMFS fail to address Program was implemented by the shipboard surveys conducted by NMFS the impact of stress on marine Commander, Fleet Forces Command, to Northeast Fisheries Science Center mammals. Stress has been shown to initiate collection of data and (NEFSC) and Southeast Fisheries cause physical harm, including information concerning the protected Science Center (SEFSC) between 1998 weakening of the immune system, in and commercial marine resources found and 2005. Species-specific density marine mammals. It is safe to assume in the Navy’s OPAREAs. Specifically, estimates derived through spatial that marine mammals in the JAX Range the goal of the MRA program is to modeling were compared with Complex would be subjected to stress describe and document the marine abundance estimates found in the most resulting from single or multiple resources present in each of the Navy’s current NMFS SAR to ensure explosive concussions. Yet, despite this OPAREAs. The MRA for the JAX consistency. All spatial models and potential, NMFS assumes that stress OPAREA was recently updated in 2008 density estimates were reviewed by and would have a negligible impact on (DoN, 2008). coordinated with NMFS Science Center marine mammals in the JAX Range. The MRA data were used to provide technical staff and scientists with the Response: NMFS does not agree with a regional context for each species. The University of St. Andrews, Scotland, the IFAW’s assessment. It is true that MRA represents a compilation and Centre for Environmental and Ecological intense acoustic exposure from

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explosives can be considered a potential Based on the analyses in the proposed Response: NMFS does not agree with stressor if, by its action on the animal, rule and subsequent analyses contained the IFAW’s statement. Within the via auditory or non-auditory means, it herein, NMFS has determined that the context of this rulemaking, the term may produce a stress response in the issuance of 5-year regulations is ‘‘increased vigilance’’ means to be on animal. The term ‘‘stress’’ has taken on appropriate for Navy training exercises heightened alert to avoid vessel-whale an ambiguous meaning in the scientific utilizing underwater detonations since interactions especially when operating literature, but in general, the stress it will have a negligible impact on the in areas where/when NARWs are known response refers to an increase in marine mammal species and stocks to be migrating/present. For example, if energetic expenditure which results present in the JAX Range Complex. NARWs are known to be in a particular from exposure to the stressor and which area, instead of routine scanning Mitigation is predominantly characterized by either through the sea surface for marine the stimulation of the sympathetic Comment 8: The Commission mammals that may or may not be in the nervous system or the hypothalamic- recommends that NMFS require the vicinity, the lookouts/watchstanders or pituitary-adrenal axis (Reeder and Navy to abide by the restrictions MMOs will be actively searching for the Kramer, 2005). specified in NMFS’ final rule NARW that is potentially in the area. The stress response may or may not implementing speed restrictions to During times of ‘‘increased vigilance’’ occur depending on the characteristics reduce the risk of ship collisions with the Navy will rely on the NARW Early of the exposed animal. However, right whales (50 CFR 224.105) in all but Warning System (EWS). Language from provided a stress response occurs, we emergency situations or where the need the JAX EIS pertaining to EWS is assume that some contribution is made for realistic training requires greater provided below: to the animal’s allostatic load. speed or maneuverability. ‘‘The coastal waters off the Southeast United States (SEUS) support the only Perturbations to an animal that may Response: NMFS does not agree with known calving ground for the North occur with the presence of a stressor, the Commission’s recommendation. Atlantic Right Whale (NARW). In the either biological (e.g., predator) or NMFS’ final rule on ship speed mid 1990’s, the United States (U.S.) anthropogenic (e.g., construction), can restriction does not apply to vessels Navy, U.S. Coast Guard (USCG), U.S. contribute to the allostatic load operated by U.S. Federal agencies. Army Corps of Engineers (USACE), and (Wingfield, 2003). Additional costs are NMFS, in consultation with other National Marine Fisheries Service cumulative and additions to the Federal agencies, has determined that (NMFS) entered into a Memorandum of allostatic load over time may contribute the national security, navigational, and Agreement pursuant to the Endangered to reductions in the probability of human safety missions of some agencies Species Act. The Early Warning System may be compromised by mandatory achieving ultimate life history functions (EWS) is a result of that agreement and vessel speed restrictions. However, this (e.g., survival, maturation, reproductive is a collaborative effort which involves exemption will not relieve the Navy of effort and success) by producing comprehensive aerial surveys its obligations to consult, under section pathophysiological states. The conducted during the North Atlantic contribution to the allostatic load from 7 of the ESA, on how their activities Right Whale calving season. Surveys are a stressor requires estimating the may affect listed species. NMFS flown daily, weather permitting, from magnitude and duration of the stress acknowledges that the Navy already December 1st through March 31st.’’ response, as well as any secondary provides guidance to vessel operators ‘‘East/west transects are flown from contributions that might result from a and fleets with regard to conservation shoreline to approximately 30–35 nm change in behavior. measures to protect right whales and offshore. Aerial surveys are conducted Since the detonation events are other endangered species, as well as to locate NARW and provide whale widely dispersed throughout several of contribute to conservation efforts detection and reporting information to the designated sites within the JAX generally. mariners in the NARW calving ground Range Complex Study Area, the For the proposed JAX Range Complex in an effort to avoid collisions with this probability that detonation events will training activities, the Navy has endangered species. When a NARW is overlap in time and space with marine developed a series of mitigation sighted, information from the aerial mammals is low, particularly given the measures that closely follow the NMFS’ survey aircraft is passed to a ground densities of marine mammals in the JAX ship strike rule. These mitigation contact. The ground contact e-mails the Range Complex Study Area and the measures are described in the Proposed sighting information to a wide network implementation of monitoring and Mitigation Measures section of the distribution which includes Fleet Area mitigation measures. Moreover, NMFS proposed rule (73 FR 76578; December Control and Surveillance Facility does not expect animals to experience 17, 2008). In addition, NMFS worked (FACSFAC) JAX, the USCG, the USACE repeated exposures to the same sound with the Navy regarding their vessel and non-profit and commercial source as animals will likely move away operations to determine where ESA interests. Additionally, the ground from the source after being exposed. In section 7 consultations would be contact will follow up with a call to addition, these isolated exposures, appropriate. FACSFAC JAX to provide further when received at distances of Level B Comment 9: The IFAW points out that information if necessary. FACSFAC JAX behavioral harassment (i.e., 177 dB re 1 the proposed rule requires the Navy to records this valuable information and microPa2-sec), are expected to cause ‘‘practice increased vigilance’’ when disseminates to all navy vessels and brief startle reactions or short-term passing through seasonal right whale aircraft operating in the consultation behavioral modification by the animals. habitat. The IFWC states that requiring area via the Secret Internet Protocol These brief reactions and behavioral the Navy to practice increased vigilance Router Network (SIPRNET) system.’’ changes are expected to disappear when is an abdication of NMFS’ duties to ‘‘General sighting information and the exposures cease. Therefore, it is independently analyze potential takes of reporting procedures are broadcasted highly unlikely that the animals will be North Atlantic right whales. Further, if over the following methods: the NOAA exposed to the repeated stressors (i.e., NMFS is to allow Navy to mitigate harm weather radio; USCG NAVTEX system detonations) to suffer increased through ‘‘increased vigilance,’’ that term and a Broadcast Notice to Mariners over allostatic load. should be defined in the proposed rule. VHF marine-band radio channel 16. The

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EWS is a wide communication effort to 3. Circumstances could arise where, Ships, including those operated by ensure all vessels in the area are aware in order to avoid North Atlantic right USCG, not yet Officer in Tactical of the most recent right whale sightings whale(s), speed reductions could mean Command Information Exchange as an avoidance measure.’’ vessels must reduce speed to a subsystem capable, will communicate Comment 10: The IFAW points out minimum at which it can safely keep on via satellite communication, telephone that NMFS approves a number of other, course (bare steerageway) or vessels system or international marine/maritime more specific mitigation measures could come to an all stop. satellite. applicable to the Navy during right 4. During the North Atlantic right 7. The only type of exercise that may whale calving season in the whale calving season north-south be conducted inside the critical habitat ‘‘Consultation Area’’—a zone transits through the critical habitat are and AAOC in calving season is overlapping established right whale prohibited. Naval vessel transits through precision anchorage drills and swept critical habitat. The IFAW points out the area shall be in an east-west channel exercises. These exercises do that the condition in the proposed rule direction, and shall use the most direct not involve in detonations and do not is that all of the measures qualified by route available during the calving introduce intense sound that is likely to the Navy will only be followed if season. result a take into the water column. ‘‘consistent with essential mission, 5. Naval vessel operations (i.e., Therefore, they are not expected to training, and operations.’’ The IFAW precision anchorage drills) in the North result in a take of marine mammals. In states that these measures do not Atlantic right whale critical habitat and addition, use of the Shipboard adequately address the potential harm AAOC during the calving season will be Electronic System Evaluation Facility to breeding right whales or mother/calf undertaken during daylight and periods range is authorized with clearance and pairs. of good visibility, to the extent advice from FACSFAC JAX. Response: NMFS does not agree with practicable and consistent with mission, NMFS believes that these measures IFAW’s statement. NMFS recognizes the training, and operation. When operating can adequately protect the North in the critical habitat and AAOC at night significance of the NARW calving area Atlantic right whales in the or during periods of poor visibility, and has explored ways of effecting the ‘‘Consultation Area’’ during calving vessels will operate as if in the vicinity least practicable impact (which includes season. of a recently reported NARW sighting. a consideration of practicality of 6. Command, Control and Miscellaneous Issues implementation, safety of personnel and Communication: Comment 11: The NRDC commented impacts to training fidelity) to right • FACSFAC JAX shall coordinate on the proposed rule with its earlier whales. Navy units will incorporate data ship/aircraft clearance into the comments on the NMFS’s proposed rule from the Early Warning System (EWS) operating area based on prevailing for the Navy’s Atlantic Fleet Active into exercise pre-planning efforts. Fleet conditions, including water Sonar Training (AFAST) and the Navy’s Area Control and Surveillance Facility, temperature, weather conditions, whale AFAST DEIS. Specifically, the NRDC Jacksonville (FACSFACJAX) houses the sighting data, mission or event to be states that neither NMFS in its proposed Whale Fusion Center, which conducted and other pertinent rule nor the Navy in its EIS offers disseminates the latest right whale information. Commander Submarine sufficient measures to mitigate the sighting information to Navy ships, Atlantic (COMSUBLANT) will harmful impacts of high intensity sonar. submarines, and aircraft. Through the coordinate any submarine operations The NRDC further states that NMFS and Fusion Center, FACSFACJAX that may require clearance with the Navy’s analysis substantially coordinates ship and aircraft movement FACSFAC JAX. FASFAC JAX will understates the potential effects of sonar into the right whale critical habitat and provide data to ships and aircraft, on marine wildlife. the surrounding operating areas based including USCG if requested, and will Response: NRDC’s comments are on season, water temperature, weather recommend modifying, moving or inapplicable to the proposed Navy conditions, and frequency of whale canceling events as needed to prevent training activities in the JAX Range sightings and provides right whale whale encounters. Commander Complex. The Navy does not intend, as reports to ships, submarines and Submarine Group Ten (COMSUBGRU part of its proposed action, to conduct aircraft, including coast guard vessels TEN) will provide same information/ training with MFAS, HFAS, and and civilian shipping. All sighting data guidance to subs. Improved Extended Echo Ranging is maintained on a Web site, http:// • Prior to transiting or training in the (IEER)/Advanced Extended Echo www.facsfacjax.navy.mil. critical habitat, ships will contact Ranging (AEER). The Navy’s request for In addition, the following list of FASFAC JAX to obtain latest whale a LOA for sonar related training was comprehensive mitigation measures will sighting and other information needed addressed in the Final Rule and LOA for be implemented in the ‘‘Consultation to make informed decisions regarding AFAST which was issued by NMFS on Area’’ during North Atlantic right whale safe speed and path of their intended January 22, 2009, and published in the calving season: movement. Subs shall contact Federal Register on February 19, 2009 1. Naval vessels operating within COMSUBGRU TEN for similar (74 FR 4844). North Atlantic right whale critical information. Ships and aircraft desiring Comment 12: The IFAW and one habitat and the Associated Area of to train/operate inside the critical private citizen expressed general Concern (AAOC) will exercise extreme habitat or within the warning/operating opposition to Navy activities and caution and use slow safe speed, that is, area shall coordinate clearance with NMFS’s issuance of an MMPA the slowest speed that is consistent with FACSFAC JAX. Subs shall follow the authorization because of the danger of essential mission, training, and same clearance procedures as ships and killing marine life. operations. obtain clearance from CTF–82 Response: NMFS appreciates the 2. Exercise extreme caution and use (COMSUBLANT). commenters’ concern for the marine slow, safe speed when a whale is • FACSFAC JAX will coordinate local mammals that live in the area of the sighted by a vessel or when the vessel procedures for whale data entry, update, proposed activities. However, the is within 5 nm of a reported new retrieval and dissemination using joint MMPA allows individuals to take sighting less than 12 hours old. maritime command information system. marine mammals incidental to specified

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activities if NMFS can make the there are no subsistence communities in Level A harassment (injury), or Level B necessary findings required by law (i.e., the JAX Range Complex; thus, there harassment is provided in the Federal negligible impact, unmitigable adverse would be no effect on any subsistence Register notice for the proposed rule (73 impact on subsistence users, etc.). As user); and (4) to prescribe requirements FR 76578; pages 76599–76600). No explained throughout this rulemaking, pertaining to monitoring and reporting. changes have been made to the NMFS has made the necessary findings In the Estimated Take of Marine modeling methods in the section of the under 16 U.S.C. 1371(a)(5)(A) to support Mammals section of the proposed rule, proposed rule. NMFS related the potential effects to our issuance of the final rule. As noticed in the proposed rule, the marine mammals from underwater Estimated Take of Marine Mammals Navy’s modeling revealed that only six detonation of explosives to the MMPA marine mammal species (very few As mentioned previously, with regulatory definitions of Level A and individuals of each) would be taken by respect to the MMPA, NMFS’s effects Level B Harassment and assessed the Level A and Level B harassment. assessments serve three primary effects to marine mammals that could However, after further evaluation, purposes: (1) To prescribe the result from the specific activities that NMFS concluded that because of the permissible methods of taking (i.e., the Navy intends to conduct. These relatively high abundance of several Level B Harassment (behavioral analyses are discussed in the proposed species in the action area (e.g., Atlantic harassment), Level A Harassment rule (73 FR 76578; pages 76596–76597) spotted dolphins, bottlenose dolphins, (injury), or mortality, including an and have not changed. identification of the number and types common dolphins, striped dolphins, of take that could occur by Level A or Acoustic Take Criteria Risso’s dolphins, and pilot whales, B harassment or mortality) and to In the Acoustic Take Criteria section minke whales, pantropical spotted prescribe other means of effecting the of the proposed rule, NMFS described dolphins, Kogia sp., and several species least practicable adverse impact on such the development and application of the of beaked whales—Waring et al., 2008), species or stock and its habitat (i.e., acoustic criteria for explosive and because some of these species tend mitigation); (2) to determine whether detonations (73 FR 76578; pages 76597– to aggregate in relatively large groups, the specified activity will have a 76599). No changes to the modeling there is a reasonable probability that negligible impact on the affected species have been made except for those these species could be taken by Level B or stocks of marine mammals (based on outlined in the Potential Impacts to harassment. In addition, NMFS has the likelihood that the activity will Marine Mammal Species section of this increased the take estimates because of adversely affect the species or stock document. the aggregate social behavior of these through effects on annual rates of species in large groups. Therefore, recruitment or survival); (3) to Take Calculations NMFS has included these species in our determine whether the specified activity An overview of the Navy’s modeling take estimates for the 5-year regulations. will have an unmitigable adverse impact methods to determine the number of Revised estimates of potential takes on the availability of the species or exposures of MMPA-protected species from the proposed JAX Range Complex stock(s) for subsistence uses (however, to sound likely to result in mortality, training activities are listed in Table 5.

TABLE 5—SUMMARY OF POTENTIAL TAKES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE JAX RANGE COMPLEX

Level B Level A Species harassment harassment Mortality

Minke whale ...... 3 0 0 Beaked whales ...... 20 0 0 Kogia sp...... 3 0 0 Pilot whale ...... 20 0 0 Atlantic spotted dolphin ...... 62 2 0 Bottlenose dolphin ...... 30 0 0 Common dolphin ...... 30 0 0 Striped dolphin ...... 20 0 0 Clymene dolphin ...... 20 0 0 Pantropical spotted dolphin ...... 20 0 0 Risso’s dolphin ...... 30 0 0

Effects on Marine Mammal Habitat training activities will not have adverse will be utilized again after the activities or long-term impacts on marine have ceased. NMFS’s JAX Range Complex mammal habitat or prey species. Effects on Food Resources proposed rule included a section that Unless the sound source or explosive addressed the effects of the Navy’s detonation is stationary and/or There are currently no well activities on marine mammal habitat (73 continuous over a long duration in one established thresholds for estimating FR 76578, page 76600). Marine mammal area, the effects of underwater effects to fish from explosives other than habitat and prey species could be detonation and its associated sound are mortality models. Fish that are located affected by the explosive ordnance generally considered to have a less in the water column, in proximity to the testing and the sound generated by such severe impact on marine mammal source of detonation could be injured, activities. Based on the analysis habitat than the physical alteration of killed, or disturbed by the impulsive contained in the Navy’s FEIS and the the habitat. Marine mammals may be sound and could leave the area information below, NMFS has temporarily displaced from areas where temporarily. Continental Shelf Inc. determined that the JAX Range Complex Navy training is occurring, but the area (2004) summarized a few studies

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conducted to determine effects has proposed to largely avoid assume any resulting population-level associated with removal of offshore conducting any training in critical consequences, though there are known structures (e.g., oil rigs) in the Gulf of habitat, and only non-explosive avenues through which behavioral Mexico. Their findings revealed that at activities will be conducted in the right disturbance of individuals can result in very close range, underwater explosions whale critical habitat. The only training population-level effects. A negligible are lethal to most fish species regardless activity that would occur in the NARW impact finding is based on the lack of of size, shape, or internal anatomy. In critical habitat is the precision likely adverse effects on annual rates of most situations, cause of death in fish anchorage drill, which is a non- recruitment or survival (i.e., population- has been massive organ and tissue explosive event. This exercise requires level effects). An estimate of the number damage and internal bleeding. At longer the use of specially trained bridge watch of Level B harassment takes alone, is not range, species with gas-filled teams (Sea Anchor Detail) and slow enough information on which to base an swimbladders (e.g., snapper, cod, and speeds. The objective is to drop anchor impact determination. striped bass) are more susceptible than and stop the vessel at a precise In addition to considering estimates of those without swimbladders (e.g., geographic point. This exercise is the number of marine mammals that flounders, eels). typically done 3 to 8 miles from shore. might be ‘‘taken’’ through behavioral Studies also suggest that larger fish The duration of this exercise is typically harassment, NMFS must consider other are generally less susceptible to death or less than 1 hour. Therefore, NMFS factors, such as the likely nature of any injury than small fish. Moreover, believes that this training exercise will responses (their intensity, duration, elongated forms that are round in cross not adversely affect NARW critical etc.), the context of any responses section are less at risk than deep-bodied habitat. (critical reproductive time or location, forms. Orientation of fish relative to the In addition, FACSFACJAX migration, etc.), and the number and shock wave may also affect the extent of coordinates Navy ship and aircraft nature of estimated Level A takes, the injury. Open water pelagic fish (e.g., clearance into the Northern Right Whale number of estimated mortalities, and mackerel) seem to be less affected than Critical Habitat and the surrounding effects on habitat. reef fishes. The results of most studies Operating Area (OPAREA) based on The Navy’s specified activities have are dependent upon specific biological, season, water temperature, weather been described based on best estimates environmental, explosive, and data conditions, and frequency of whale of the planned detonation events the recording factors. sightings, and provides North Atlantic Navy would conduct for the proposed The huge variation in fish right whale sighting reports to ships, JAX Range Complex training activities. populations, including numbers, submarines and aircraft. Through Taking the above into account, species, sizes, and orientation and range coordination with the Florida Fish and considering the sections discussed from the detonation point, makes it very Wildlife Conservation Commission below, and dependent upon the difficult to accurately predict mortalities (FWCC), Georgia Department of Natural implementation of the proposed at any specific site of detonation. A total Resources (GDNR), New England mitigation measures, NMFS has of 250 hours of explosive detonation Aquarium Early Warning System (EWS) determined that Navy training exercises events, each lasting approximately 1–8 and others, FACSFACJAX organized a utilizing underwater explosives will hours, will be widely dispersed in the communications network and reporting have a negligible impact on the affected large JAX study area over the calendar system that ensures the widest possible marine mammal species and stocks year. Most fish species experience a exchange and dissemination of North present in the JAX Range Complex large number of natural mortalities, Atlantic right whale sighting Study Area. especially during early life-stages, and information to Department of Defense NMFS’s analysis of potential any small level of mortality caused by and civilian shipping. behavioral harassment, temporary the JAX Range Complex training threshold shifts, permanent threshold exercises involving explosives will Conclusion shifts, injury, and mortality to marine likely be insignificant to the population Based on the analyses and the mammals as a result of the JAX Range as a whole. aforementioned mitigation and Complex training activities was Therefore, potential impacts to marine monitoring measures for vessel transit provided in the proposed rule (73 FR mammal food resources within the JAX in the North Atlantic right whale critical 76578, pages 76585–76591) and is Range Complex are expected to be habitat in place, NMFS concluded that described in more detail below. minimal given both the very geographic the Navy’s activities would have Behavioral Harassment and spatially limited scope of most minimal effects on marine mammal Navy at-sea activities including habitat, including the North Atlantic The Navy plans a total of 73 underwater detonations, and the high right whale critical habitat. MISSILEX training events (each lasting biological productivity of these for 1 hour), 10 FIREX training events Analysis and Negligible Impact resources. No short or long term effects (each lasting for 8 hours), 12 MINEX Determination to marine mammal food resources from training events (each lasting for 6–8 Navy activities are anticipated within Pursuant to NMFS’s regulations hours), and 8 small arms exercises the JAX Range Complex. implementing the MMPA, an applicant events (each lasting for 1 hour) is required to estimate the number of annually. The total training exercises Effects on North Atlantic Right Whale animals that will be ‘‘taken’’ by the proposed by the Navy in the JAX Range Critical Habitat specified activities (i.e., takes by Complex amount to approximate 250 The coastal waters off Georgia and harassment only, or takes by hours per year. These detonation events northern Florida within the JAX Range harassment, injury, and/or death). This are widely dispersed throughout several Complex Study Area are the only estimate informs the analysis that NMFS of the designated sites within the JAX known calving ground for the North must perform to determine whether the Range Complex Study Area. The Atlantic right whale. Designated critical activity will have a ‘‘negligible impact’’ probability that detonation events will habitat, which encompasses the core of on the species or stock. Level B overlap in time and space with marine the calving ground, is essential to the (behavioral) harassment occurs at the mammals is low, particularly given the conservation of this species. The Navy level of the individual(s) and does not densities of marine mammals in the JAX

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Range Complex Study Area and the and exposure time, all studies show that bottlenose dolphins, 20 Clymene implementation of monitoring and TTS are reversible and animals’ dolphins, 30 common dolphins, 20 mitigation measures. Moreover, NMFS sensitivity is expected to be fully pantropical spotted dolphins, 30 Risso’s does not expect animals to experience recovered in minutes to hours. dolphins, and 20 striped dolphins could repeated exposures to the same sound Therefore, NMFS expects that TTS be affected by Level B harassment (TTS source as animals will likely move away would not affect annual rates of and sub-TTS) as a result of the proposed from the source after being exposed. In recruitment or survival. JAX Range Complex training activities. addition, these isolated exposures, These numbers represent approximately Acoustic Masking or Communication when received at distances of Level B 0.09%, 0.76%, 0.06%, 0.12%, 0.04%, Impairment behavioral harassment (i.e., 177 dB re 1 0.02%, 0.45%, 0.02%, 0.15%, and microPa2-sec), are expected to cause As discussed above, it is also possible 0.57% of minke whales, dwarf or pygmy brief startle reactions or short-term that anthropogenic sound could result sperm whales, pilot whales, Atlantic behavioral modification by the animals. in masking of marine mammal spotted dolphins, bottlenose dolphins, These brief reactions and behavioral communication and navigation signals. common dolphins, pantropical spotted changes are expected to disappear when However, masking only occurs during dolphins, striped dolphins, Risso’s the exposures cease. Therefore, these the time of the signal (and potential dolphins, and beaked whales, levels of received impulse noise from secondary arrivals of indirect rays), respectively in the vicinity of the detonation are not expected to affect versus TTS, which occurs continuously proposed JAX Range Complex Study annual rates or recruitment or survival. for its duration. Impulse sounds from Area (calculation based on NMFS 2007 underwater detonations are extremely U.S. Atlantic and Gulf of Mexico Marine TTS brief and the majority of most animals’ Mammal Stock Assessment). Although NMFS and the Navy have estimated vocalizations would not be masked. the population estimate of Clymene that individuals of some species of Therefore, masking effects from dolphins is unknown in the proposed marine mammals may sustain some underwater detonations are expected to action area, NMFS considers the take of level of temporarily threshold shift TTS be minimal and unlikely. If masking or 20 individuals of this species by Level from underwater detonations. TTS can communication impairment were to B harassment would have a negligible last from a few minutes to days, be of occur briefly, it would be in the impact to this species because most of varying degree, and occur across various frequency ranges below 100 Hz, which its population exists beyond the project frequency bandwidths. The TTS overlaps with some mysticete area and because they are widely sustained by an animal is primarily vocalizations; however, it would likely distributed species in the North Atlantic classified by three characteristics: not mask the entirety of any particular (Jefferson et al., 1993; Reeves et al., • Frequency—Available data (of mid- vocalization or communication series 2002). frequency hearing specialists exposed to because of the short impulse. In addition, the estimated Level A mid to high frequency sounds- Southall PTS, Injury, or Mortality takes of 2 Atlantic spotted dolphins et al., 2007) suggest that most TTS represent 0.0039% of this species in the occurs in the frequency range of the The Navy’s model estimated that 2 vicinity of the proposed JAX Range source up to one octave higher than the Atlantic spotted dolphins could Complex Study Area (calculation based source (with the maximum TTS at 1⁄2 experience 50 percent tympanic on NMFS 2007 U.S. Atlantic and Gulf octave above). membrane rupture or slight lung injury of Mexico Marine Mammal Stock • Degree of the shift (i.e., how many (Level A harassment) as a result of the Assessment). Given these very small dB is the sensitivity of the hearing training activities utilizing underwater percentages, NMFS does not expect reduced by)—generally, both the degree detonation in the JAX Range Complex there to be any long-term adverse effect of TTS and the duration of TTS will be Study Area. However, these estimates on the populations of the greater if the marine mammal is exposed do not take into consideration the aforementioned dolphin species. No to a higher level of energy (which would proposed mitigation and monitoring marine mammals are expected to be occur when the peak dB level is higher measures. For underwater detonations, killed as a result of these activities. or the duration is longer). Since the the animals have to be within pre- Additionally, the aforementioned take impulse from detonation is extremely defined zones of influence (ZOI) to estimates do not account for the brief, an animal would have to approach experience Level A harassment. The implementation of mitigation measures. very close to the detonation site to injury zones vary from 0.02 km2 to With the implementation of mitigation increase the received SEL. The 0.165 km2 (or at distances between 80 m and monitoring measures, NMFS threshold for the onset of TTS for to 230 m from the center of detonation) expects that the takes would be reduced detonations is a dual criteria: 182 dB re depending on the types of munition further. Coupled with the fact that these 1 microPa2-sec or 23 psi, which might used and the season of the action. impacts will likely not occur in areas be received at distances from 252–1,096 NMFS believes it is unlikely that any and times critical to reproduction, m from the centers of detonation based marine mammal could be undetected by NMFS has determined that the total on the types of NEW involved to receive lookouts/watchstanders or MMOs taking over the 5-year period of the the SEL that causes TTS compared to within such a small area during pre- regulations and subsequent LOAs from similar source level with longer testing surveys. As discussed the Navy’s JAX Range Complex training durations (such as sonar signals). previously, the Navy plans to utilize activities will have a negligible impact • Duration of TTS (Recovery time)— aerial or vessel surveys to detect marine on the marine mammal species and Of all TTS laboratory studies, some mammals for mitigation implementation stocks present in the JAX Range using exposures of almost an hour in and indicated that they are capable of Complex Study Area. duration or up to 217 SEL, almost all effectively monitoring safety zones. recovered within 1 day (or less, often in Based on these assessments, NMFS Subsistence Harvest of Marine minutes), though in one study (Finneran determined that approximately 3 minke Mammals et al., 2007), recovery took 4 days. whales, 3 dwarf or pygmy sperm NMFS has determined that the • Although the degree of TTS whales, 20 beaked whales, 20 pilot issuance of 5-year regulations and depends on the received noise levels whales, 62 Atlantic spotted dolphins, 30 subsequent LOAs (as warranted) for

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Navy training exercises in the JAX The Regulatory Flexibility Act (RFA) areas. In addition, a Strike Group/ARG Range Complex would not have an requires Federal agencies to prepare an is built around an aircraft carrier with unmitigable adverse impact on the analysis of a rule’s impact on small typically 5,300 personnel on board and availability of the affected species or entities whenever the agency is required an amphibious assault ship that carries stocks for subsistence use since there to publish a notice of proposed a Marine Corps Expeditionary Unit, so are no such uses in the specified area. rulemaking. However, a Federal agency failure to adequately train risks may certify, pursuant to 5 U.S.C. 605(b), thousands of lives. ESA that the action will not have a The training necessary to protect There are six marine mammal species significant economic impact on a American interests and the lives of that are listed as endangered under the substantial number of small entities. sailors and marines is complex. It ESA with confirmed or possible The Chief Counsel for Regulation of the involves ensuring the warfighter can occurrence in the study area and could Department of Commerce certified at the accurately identify potential threats in a be impacted by the proposed action: Proposed Rule stage. The Navy is the variety of marine environments and blue whale, fin whale, sei whale, entity that will be affected by this conditions, and it involves the humpback whale, North Atlantic right rulemaking, not a small governmental coordination of different vessels and whale, and sperm whale. jurisdiction, small organization or small aircraft so that the group’s capabilities Pursuant to Section 7 of the ESA, the business, as defined by the RFA. This are employed in the most tactically Navy has consulted with NMFS on this rulemaking authorizes the take of effective manner. As with any action. NMFS has also consulted marine mammals incidental to a complicated coordinated effort, this internally on the issuance of regulations specified activity. The specified activity challenge requires routine practice, as under section 101(a)(5)(A) of the MMPA defined in the final rule includes the these skills are perishable. for this activity. The Biological Opinion use of underwater detonations, which In 10 U.S.C. 5062, Congress mandated concludes that the proposed training are only used by the U.S. military, that the Chief of Naval Operations activities are likely to adversely affect during training activities that are only organize, train, and equip all Naval but are not likely to jeopardize the conducted by the U.S. Navy. forces for combat. In response, the Fleet continued existence of these threatened Additionally, any requirements imposed Response Training Plan (FRTP) is a and endangered species under NMFS by a Letter of Authorization issued major initiative designed to ensure jurisdiction. pursuant to these regulations, and any Naval units receive required training monitoring or reporting requirements before they deploy. The FRTP is an NEPA imposed by these regulations, will be arduous sequential training cycle in NMFS participated as a cooperating applicable only to the Navy. Because which unit level training (ULT) and agency on the Navy’s Final this action, if adopted, would directly combat certification is followed by Environmental Impact Statement (FEIS) affect the Navy and not a small entity, major exercises that bring together for the JAX Range Complex. NMFS NMFS concludes the action would not various warfare components so they subsequently adopted the Navy’s EIS for result in a significant economic impact have the opportunity to practice as an the purpose of complying with the on a substantial number of small integrated whole and attain MMPA. entities. certification. Accordingly, any delay in The Assistant Administrator for coordinated training creates a Determination Fisheries has determined that there is significant and unreasonable risk which Based on the analysis contained good cause under the Administrative could result in a unit’s and/or Strike herein and in the proposed rule (and Procedure Act (5 U.S.C. 553(d)(3)) to Group’s inability to train, certify and other related documents) of the likely waive the 30-day delay in effective date report as directed to an overseas theater effects of the specified activity on of the measures contained in the final of operations. marine mammals and their habitat and rule. The U.S Navy has a compelling A deployment certification exercise is dependent upon the implementation of national policy reason to continue currently scheduled for June 2009 that the mitigation measures, NMFS finds military readiness activities without will encompass areas of the JAX Range that the total taking from Navy JAX interruption in its East Coast Operating Complex. Lack of the appropriate Range Complex training exercises Areas, i.e., the JAX Range Complex. As environmental regulatory coverage for utilizing underwater explosives over the discussed below, suspension/ even a single day imperils completion of 5 year period will have a negligible interruption of the Navy’s ability to this exercise, and risks deployment impact on the affected species or stocks train, for even a small number of days, certification. Essential ULT also occurs and will not result in an unmitigable disrupts vital sequential training and in these OPAREAs. There is limited unit adverse impact on the availability of certification processes essential to our level underway (at-sea) time available in marine mammal species or stocks for national security. the FRTP to adjust the training dates. taking for subsistence uses because no In order to meet its national security These ULT training periods are driven subsistence uses exist in the JAX Range objectives, the Navy must continually by sequential certification processes for Complex study area. NMFS has issued maintain its ability to operate in a both in port and at-sea training. regulations for these exercises that challenging at-sea environment, conduct Scheduling constraints are further prescribe the means of effecting the least military operations, control strategic complicated by the availability of Afloat practicable adverse impact on marine maritime transit routes and Training Groups (ATGs) that are mammals and their habitat and set forth international straits, and protect sea responsible for training all individual requirements pertaining to the lines of communications that support units. ATGs have a limited number of monitoring and reporting of that taking. international commerce. To meet these trainers available at any given time, and objectives, the Navy must continually their schedules must also be de- Classification train. Timely training is critical because conflicted, compounding the problem if This action does not contain a individual Navy units and Strike training schedules are not adhered to. collection of information requirement Groups/Amphibious Readiness Groups Waiver of the 30-day delay of the for purposes of the Paperwork (ARG) currently operate in, or need to effective date of the Final Rule will Reduction Act. quickly deploy to high risk geographic allow Navy to finalize operational

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procedures to ensure compliance with Jacksonville OPAREA and the manner that minimizes, to the greatest required mitigation, monitoring, and Charleston OPAREA (sometimes extent practicable, any adverse impacts reporting requirements, and have referred to collectively as the JAX/ on marine mammals and their habitat. MMPA authorization in place prior to CHASN OPAREA, or simply the (c) The incidental take of marine Navy’s vital June 2009 exercise. OPAREA). The northernmost point of mammals under the activities identified the JAX/CHASN OPAREA is located just in § 218.10(c) is limited to the following List of Subjects in 50 CFR Part 218 north of Wilmington, North Carolina species, by the indicated method of take Exports, Fish, Imports, Incidental (34°37′ N) in waters less than 20 m (65.6 and the indicated number of times: take, Indians, Labeling, Marine ft) deep, while the easternmost (1) Level B Harassment: mammals, Navy, Penalties, Reporting boundary lies 281 nm (518.6 km) (i) Bottlenose dolphin (Tursiops and recordkeeping requirements, offshore of Jacksonville, Florida (77°00′ truncatus)—150 (an average of 30 Seafood, Sonar, Transportation. W in waters with a bottom depth of annually); Dated: June 5, 2009. nearly 2,000 m [1.243 mi]). (ii) Pantropical spotted dolphin Samuel D. Rauch III, (c) The taking of marine mammals by (Stenella attenuata)—100 (an average of the Navy is only authorized if it occurs Deputy Assistant Administrator for 20 annually); Regulatory Programs, National Marine incidental to the following activities (iii) Clymene dolphin (S. clymene)— Fisheries Service. within the designated amounts of use: 100 (an average of 20 annually); (1) The detonation of the underwater ■ For reasons set forth in the preamble, (iv) Atlantic spotted dolphin (S. explosives indicated in paragraph frontalis)—310 (an average of 62 50 CFR part 218 is amended to read as (c)(1)(i) of this section conducted as part follows: annually); of the training events indicated in (v) Striped dolphin (S. PART 218—REGULATIONS paragraph (c)(1)(ii) of this section: coeruleoalba)—100 (an average of 20 GOVERNING THE TAKING AND (i) Underwater Explosives: (A) AGM–114 (Hellfire missile); annually); IMPORTING OF MARINE MAMMALS (B) AGM–65 E/F (Maverick missile); (vi) Risso’s dolphin (Grampus griseus)—150 (an average of 30 ■ 1. The authority citation for part 218 (C) Mine Neutralization (20 lb NEW annually); continues to read as follows: charges); (D) 5″ Naval Gunfire; (vii) Common dolphin (Delphinus Authority: 16 U.S.C. 1361 et seq. (E) MK3A2 anti-swimmer concussion delphis)—150 (an average of 30 ■ 2. Subpart B is added to part 218 to grenades. annually); read as follows: (ii) Training Events: (viii) Pilot whales (Globicephala Subpart B—Taking Marine Mammals (A) Mine Neutralization (20 lb NEW sp.)—100 (an average of 20 annually); Incidental to U.S. Navy Training in the charges)—up to 60 exercises over the (ix) Dwarf or pygmy sperm whales Jacksonville Range Complex course of 5 years (an average of 12 per (Kogia sp.)—15 (an average of 3 Sec. year); annually); 218.10 Specified activity and specified (B) Missile Exercise (MISSILEX) (Air- (x) Beaked whales—100 (an average of geographical area and effective dates. to-Surface; Hellfire missile)—up to 350 20 annually); 218.11 Permissible methods of taking. exercises over the course of 5 years (an (xi) Minke whales (Balaenoptera 218.12 Prohibitions. average of 70 per year); acutorostrata)—15 (an average of 3 218.13 Mitigation. (C) Missile Exercise (MISSILEX) (Air- annually). 218.14 Requirements for monitoring and to-Surface; Maverick)—up to 15 (2) Level A Harassment (injury): reporting. exercises over the course of 5 years (an 218.15 Applications for Letters of (i) Atlantic spotted dolphin—10 (an average of 3 per year); average of 2 annually). Authorization. (D) FIREX with IMPASS—up to 50 218.16 Letters of Authorization. (ii) [Reserved] 218.17 Renewal of Letters of Authorization exercises over the course of 5 years (an and adaptive management. average of 10 per year); and § 218.12 Prohibitions. 218.18 Modifications to Letters of (E) Small Arms Training with MK3A2 Notwithstanding takings Authorization. anti-swimmer concussion grenade (0.5 contemplated in § 218.11 and lbs NEW)—up to 400 grenades over the authorized by a Letter of Authorization Subpart B—Taking Marine Mammals course of 5 years (an average of 80 HE issued under § 216.106 of this chapter Incidental to U.S. Navy Training in the grenades used per year). and § 218.16, no person in connection Jacksonville Range Complex (JAX (2) [Reserved] with the activities described in § 218.10 Range Complex) (d) Regulations are effective June 8, 2009 and are applicable to the Navy on may: § 218.10 Specified activity and specified June 5, 2009 through June 4, 2014. (a) Take any marine mammal not geographical area and effective dates. specified in § 218.11(c); (a) Regulations in this subpart apply § 218.11 Permissible methods of taking. (b) Take any marine mammal only to the U.S. Navy for the taking of (a) Under Letters of Authorization specified in § 218.11(c) other than by marine mammals that occurs in the area issued pursuant to §§ 216.106 of this incidental take as specified in outlined in paragraph (b) of this section chapter and 218.16, the Holder of the § 218.11(c)(1) and (2); and that occur incidental to the Letter of Authorization may (c) Take a marine mammal specified activities described in paragraph (c) of incidentally, but not intentionally, take in § 218.11(c) if such taking results in this section. marine mammals within the area more than a negligible impact on the (b) The taking of marine mammals by described in § 218.10(b), provided the species or stocks of such marine the Navy is only authorized if it occurs activity is in compliance with all terms, mammal; or within the JAX Range Complex conditions, and requirements of this (d) Violate, or fail to comply with, the Operation Areas (OPAREAs), which are subpart and the appropriate Letter of terms, conditions, and requirements of located along the southern east coast of Authorization. this Subpart or a Letter of Authorization the U.S. The two principal OPAREAs (b) The activities identified in issued under § 216.106 of this chapter within the JAX Study Area are the § 218.10(c) must be conducted in a and § 218.16.

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§ 218.13 Mitigation. attention to the things on the outer imminent and serious threat to a person, (a) When conducting training edges of their field of vision. Lookouts vessel, or aircraft, and to the extent activities identified in § 218.10(c), the shall also have night vision devices vessels are restricted in their ability to mitigation measures contained in the available for use. maneuver. Vessels shall take reasonable Letter of Authorization issued under (ii) Operating Procedures & Collision steps to alert other vessels in the § 216.106 of this chapter and § 218.16 Avoidance: vicinity of the whale. must be implemented. These mitigation (A) Prior to major exercises, a Letter (I) Where feasible and consistent with measures include, but are not limited to: of Instruction, Mitigation Measures mission and safety, vessels shall avoid (1) General Maritime Measures: Message or Environmental Annex to the closing to within 200 yds (183 m) of (i) Personnel Training—Lookouts: Operational Order shall be issued to marine mammals other than whales (A) All bridge personnel, further disseminate the personnel (whales addressed above). Commanding Officers, Executive training requirement and general marine (J) Navy aircraft participating in Officers, officers standing watch on the species mitigation measures. exercises at sea shall conduct and bridge, maritime patrol aircraft aircrews, (B) Commanding Officers shall make maintain, when operationally feasible and Mine Warfare (MIW) helicopter use of marine species detection cues and safe, surveillance for marine species crews shall complete Marine Species and information to limit interaction of concern as long as it does not violate Awareness Training (MSAT). with marine species to the maximum safety constraints or interfere with the (B) Navy lookouts shall undertake extent possible consistent with safety of accomplishment of primary operational extensive training to qualify as a the ship. duties. Marine mammal detections shall watchstander in accordance with the (C) While underway, surface vessels be immediately reported to assigned Lookout Training Handbook shall have at least two lookouts with Aircraft Control Unit for further (NAVEDTRA 12968–D). binoculars; surfaced submarines shall (C) Lookout training shall include on- dissemination to ships in the vicinity of have at least one lookout with the marine species as appropriate where the-job instruction under the binoculars. Lookouts already posted for supervision of a qualified, experienced it is reasonable to conclude that the safety of navigation and man-overboard course of the ship will likely result in watchstander. Following successful precautions may be used to fill this completion of this supervised training a closing of the distance to the detected requirement. As part of their regular marine mammal. period, lookouts shall complete the duties, lookouts shall watch for and (K) All vessels shall maintain logs and Personal Qualification Standard report to the OOD the presence of records documenting training Program, certifying that they have marine mammals. operations should they be required for demonstrated the necessary skills (such (D) Personnel on lookout shall employ event reconstruction purposes. Logs and as detection and reporting of partially visual search procedures employing a records shall be kept for a period of 30 submerged objects). scanning method in accordance with the days following completion of a major (D) Lookouts shall be trained in the Lookout Training Handbook training exercise. most effective means to ensure quick (NAVEDTRA 12968–D). and effective communication within the (E) After sunset and prior to sunrise, (2) Coordination and Reporting command structure to facilitate lookouts shall employ Night Lookouts Requirements: implementation of protective measures Techniques in accordance with the (i) The Navy shall coordinate with the if marine species are spotted. Lookout Training Handbook local NMFS Stranding Coordinator for (E) Surface lookouts shall scan the (NAVEDTRA 12968–D). any unusual marine mammal behavior water from the ship to the horizon and (F) While in transit, naval vessels and any stranding, beached live/dead, be responsible for all contacts in their shall be alert at all times, use extreme or floating marine mammals that may sector. In searching the assigned sector, caution, and proceed at a ‘‘safe speed’’ occur at any time during or within 24 the lookout shall always start at the (the minimum speed at which mission hours after completion of training forward part of the sector and search aft goals or safety will not be compromised) activities. (toward the back). To search and scan, so that the vessel can take proper and (ii) The Navy shall follow internal the lookout shall hold the binoculars effective action to avoid a collision with chain of command reporting procedures steady so the horizon is in the top third any marine animal and can be stopped as promulgated through Navy of the field of vision and direct the eyes within a distance appropriate to the instructions and orders. just below the horizon. The lookout prevailing circumstances and (3) Mitigation Measures Applicable to shall scan for approximately five conditions. Vessel Transit in the Mid-Atlantic seconds in as many small steps as (G) When marine mammals have been during North Atlantic Right Whale possible across the field seen through sighted in the area, Navy vessels shall Migration: The mitigation measures the binoculars. They shall search the increase vigilance and implement apply to all Navy vessel transits, entire sector in approximately five- measures to avoid collisions with including those vessels that would degree steps, pausing between steps for marine mammals and avoid activities transit to and from East Coast ports and approximately five seconds to scan the that might result in close interaction of the JAX Range Complex OPAREA. field of view. At the end of the sector naval assets and marine mammals. Such (i) Mid-Atlantic, Offshore of the search, the glasses shall be lowered to measures shall include changing speed Eastern United States: allow the eyes to rest for a few seconds, and/or course direction and would be (A) All Navy vessels are required to and then the lookout shall search back dictated by environmental and other use extreme caution and operate at a across the sector with the naked eye. conditions (e.g., safety or weather). slow, safe speed consistent with mission (F) At night, lookouts shall scan the (H) Naval vessels shall maneuver to and safety during the months indicated horizon in a series of movements that keep at least 500 yds (460 m) away from below and within a 37 km (20 nm) arc would allow their eyes to come to any observed whale and avoid (except as noted) of the specified periodic rests as they scan the sector. approaching whales head-on. This associated reference points: When visually searching at night, they requirement does not apply if a vessel’s (1) South and East of Block Island (37 shall look a little to one side and out of safety is threatened, such as when km (20 NM) seaward of line between the corners of their eyes, paying change of course will create an 41–4.49° N. lat. 071–51.15° W. long. and

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41–18.58° N. lat. 070–50.23° W. long): Commander, Submarine Group Ten for (iii) Northeast Atlantic, Offshore of Sept-Oct and Mar-Apr similar information. the Eastern United States: (2) New York/New Jersey (40–30.64° (B) The following specific mitigation (A) Prior to transiting the Great South N. lat. 073–57.76° W. long.): Sep–Oct measures apply to activities occurring Channel or Cape Cod Bay critical habitat and Feb-Apr. within the North Atlantic right whale areas, ships shall obtain the latest North (3) Delaware Bay (Philadelphia) (38– critical habitat and an associated area of Atlantic right whale sightings and other 52.13° N. lat. 075–1.93° W. long.): Oct– concern which extends 9 km (5 NM) information needed to make informed Dec and Feb–Mar. seaward of the designated critical decisions regarding safe speed (the (4) Chesapeake Bay (Hampton Roads habitat boundaries: minimum speed at which mission goals and Baltimore) (37–1.11° N. lat. 075– (1) When transiting within the critical or safety will not be compromised). The 57.56° W. long.): Nov-Dec and Feb–Apr. habitat or associated area of concern, Great South Channel critical habitat is (5) North Carolina (34–41.54° N. lat. vessels shall exercise extreme caution defined by the following coordinates: ° ° ° 076–40.20° W. long.): Dec-Apr and proceed at a slow safe speed. The 41–00 N. lat., 69–05 W. long.; 41–45 ° ° (6) South Carolina (33–11.84° N. lat. speed shall be the slowest safe speed N. lat, 69–45 W. long; 42–10 N. lat., ° ° ° 079–8.99° W. long. and 32–43.39° N. lat. that is consistent with mission, training 68–31 W. long.; 41–38 N. lat., 68–13 079–48.72° W. long.): Oct-Apr and operations. W. long. The Cape Cod Bay critical (2) Speed reductions (adjustments) are (B) During the months indicated in habitat is defined by the following required when a whale is sighted by a ° ° paragraph (a)(3)(i)(A) of this section, coordinates: 42–04.8 N. lat., 70–10 W. vessel or when the vessel is within 9 km ° ° Navy vessels shall practice increased long.; 42–12 N. lat., 70–15 W. long.; (5 NM) of a reported new sighting less ° ° ° vigilance with respect to avoidance of 42–12 N. lat., 70–30 W. long.; 41–46.8 than 12 hours old. Circumstances could ° vessel-whale interactions along the mid- N. lat., 70–30 W. long. arise where, in order to avoid North (B) Ships, surfaced subs, and aircraft Atlantic coast, including transits to and Atlantic right whale(s), speed shall report any North Atlantic right from any mid-Atlantic ports not reductions could mean vessels must whale sightings (if the whale is specifically identified in paragraph reduce speed to a minimum at which it identifiable as a right whale) off the (a)(3)(i)(A) of this section. can safely keep on course or vessels northeastern U.S. to Patrol and (C) All surface units transiting within could come to an all stop. Reconnaissance Wing 56 km (30 NM) of the coast in the mid- (3) Vessels shall avoid head-on (COMPATRECONWING). The report Atlantic shall ensure at least two approaches to North Atlantic right shall include the time of sighting, lat/ watchstanders are posted, including at whale(s) and shall maneuver to long, direction of movement (if least one lookout who has completed maintain at least 457 m (500 yd) of apparent) and number and description required MSAT training. separation from any observed whale if of the whale(s). (D) Navy vessels shall not knowingly deemed safe to do so. These (C) Vessels or aircraft that observe approach any whale head on and shall requirements do not apply if a vessel’s whale carcasses shall record the maneuver to keep at least 457 m (1,500 safety is threatened, such as when a location and time of the sighting and ft) away from any observed whale, change of course would create an report this information as soon as consistent with vessel safety. imminent and serious threat to a person, possible to the cognizant regional (ii) Southeast Atlantic, Offshore of the vessel, or aircraft, and to the extent environmental coordinator. All whale Eastern United States—for the purposes vessels are restricted in the ability to strikes must be reported immediately. of the measures below (paragraphs maneuver. This report shall include the date, time, (a)(3)(ii)(A) & (B) of this section), the (4) During the North Atlantic right and location of the strike; vessel course ‘‘southeast’’ encompasses sea space whale calving season, north-south and speed; operations being conducted from Charleston, South Carolina, transits through the critical habitat are by the vessel; weather conditions, southward to Sebastian Inlet, Florida, prohibited, except for Precision visibility, and sea state; description of and from the coast seaward to 148 km Anchoring drills and the Shipboard the whale; narrative of incident; and (80 NM) from shore. North Atlantic right Electronic System Evaluation Facility indication of whether photos/videos whale critical habitat is the area from range that necessarily operate at slow, were taken. Navy personnel are ° ° 31–15 N. lat. to 30–15 N. lat. safe speed. encouraged to take photos whenever extending from the coast out to 28 km (5) Ships, surfaced subs, and aircraft possible. (15 NM), and the area from 28–00° N. shall report any whale sightings to Fleet (D) Specific mitigation measures lat. to 30–15° N. lat. from the coast out Area Control and Surveillance Facility, related to activities occurring within the to 9 km (5 NM). All mitigation measures Jacksonville, by the quickest and most critical habitat include the following: described here that apply to the critical practicable means. The sighting report (1) Vessels shall avoid head-on habitat apply from November 15—April shall include the time, latitude/ approaches to North Atlantic right 15 and also apply to an associated area longitude, direction of movement and whale(s) and shall maneuver to of concern which extends 9 km (5 NM) number and description of whale (i.e., maintain at least 457 m (500 yd) of seaward of the designated critical adult/calf). separation from any observed whale if habitat boundaries. (6) Naval vessel operations in the deemed safe to do so. These (A) Prior to transiting or training in North Atlantic right whale critical requirements do not apply if a vessel’s the critical habitat or associated area of habitat and AAOC during the calving safety is threatened, such as when concern, ships shall contact Fleet Area season shall be undertaken during change of course would create an Control and Surveillance Facility, daylight and periods of good visibility, imminent and serious threat to person, Jacksonville, to obtain latest whale to the extent practicable and consistent vessel, or aircraft, and to the extent sighting and other information needed with mission, training, and operation. vessels are restricted in the ability to to make informed decisions regarding When operating in the critical habitat maneuver. safe speed (the minimum speed at and AAOC at night or during periods of (2) When transiting within the critical which mission goals or safety will not poor visibility, vessels shall operate as habitat or associated area of concern, be compromised) and path of intended if in the vicinity of a recently reported vessels shall use extreme caution and movement. Subs shall contact NARW sighting. operate at a safe speed (the minimum

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speed at which mission goals or safety retrieval of the IMPASS sonobuoy array (G) No detonations shall take place will not be compromised) so as to be following each firing exercise. within 1.6 nm (3 km) of shoreline. able to avoid collisions with North (G) FIREX with IMPASS shall take (H) Personnel shall record any Atlantic right whales and other marine place during daylight hours only. protected species observations during mammals, and stop within a distance (H) FIREX with IMPASS shall only be the exercise as well as measures taken appropriate to the circumstances and used in Beaufort Sea State three (3) or if species are detected within the ZOI. conditions. less. (iv) Small Arms Training—Explosive (3) Speed reductions (adjustments) are (I) The visibility must be such that the hand grenades (such as the MK3A2 required when a whale is sighted by a fall of shot is visible from the firing ship grenades): vessel or when the vessel is within 9 km during the exercise. (A) Lookouts shall visually survey for (5 NM) of a reported new sighting less (J) No firing shall occur if marine marine mammals prior to and during than one week old. mammals are detected within 70 yards exercise. (4) Ships transiting in the Cape Cod (64 m) of the vessel. (B) A 200 yd (182 m) radius buffer (ii) Air-to-Surface Missile Exercises Bay and Great South Channel critical zone shall be established around the (Explosive): habitats shall obtain information on intended target. The exercises shall be (A) Aircraft shall initially survey the recent whale sightings in the vicinity of conducted only if the buffer zone is intended ordnance impact area for the critical habitat. Any vessel operating clear of marine mammals. in the vicinity of a North Atlantic right marine mammals. whale shall consider additional speed (B) During the actual firing of the § 218.14 Requirements for monitoring and reductions as per Rule 6 of International weapon, the aircraft involved must be reporting. Navigational Rules. able to observe the intended ordnance (a) The Holder of the Letter of (4) Mitigation Measures for Specific impact area to ensure the area is free of Authorization issued pursuant to At-sea Training Events—If a marine marine mammals transiting the range. § 216.106 of this chapter and § 218.16 mammal is injured or killed as a result (C) Visual inspection of the target area for activities described in § 218.10(b) is of the proposed Navy training activities shall be made by flying at 1,500 ft (457 required to cooperate with the NMFS (e.g., instances in which it is clear that m) altitude or lower, if safe to do so, and when monitoring the impacts of the munitions explosions caused death), the at slowest safe speed. activity on marine mammals. (D) Explosive ordnance shall not be Navy shall suspend its activities (b) The Holder of the Authorization targeted to impact within 1,800 yd immediately and report such incident to must notify NMFS immediately (or as (1,646 m) of sighted marine mammals. NMFS. soon as clearance procedures allow) if (iii) Mine Neutralization Training (i) Firing Exercise (FIREX) Using the the specified activity identified in Involving Underwater Detonations (up Integrated Maritime Portable Acoustic § 218.10(b) is thought to have resulted Scoring System (IMPASS) (5-in to and including 20-lb charges): (A) This activity shall only occur in in the mortality or serious injury of any Explosive Rounds): marine mammals, or in any take of (A) This activity shall only occur in Undet North and Undet South of the JAX Range Complex. marine mammals not identified in Areas BB and CC, as specified in the § 218.10(c). Navy’s LOA application, in the JAX (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd (640 m) radius (c) The Navy must conduct all Range Complex. monitoring and required reporting (B) During North Atlantic right whale from detonation location for marine under the Letter of Authorization, calving season no explosive ordnance mammals from all participating vessels including abiding by the JAX Range shall be used. during the entire operation. A survey of (C) Pre-exercise monitoring of the the ZOI (minimum of 3 parallel Complex Monitoring Plan, which is target area shall be conducted with ‘‘Big tracklines 219 yd [200 m] apart) using incorporated herein by reference, and Eyes’’ prior to the event, during support craft shall be conducted at the which requires the Navy to implement, deployment of the IMPASS sonobuoy detonation location 30 minutes prior at a minimum, the monitoring activities array, and during return to the firing through 30 minutes post detonation. summarized below: position. Ships shall maintain a lookout Aerial survey support shall be utilized (1) Vessel or aerial surveys: dedicated to visually searching for whenever assets are available. (i) The Holder of this Authorization marine mammals 180° along the ship (C) Detonation operations shall be shall visually survey a minimum of 2 track line and 360° at each buoy drop- conducted during daylight hours only. explosive events per year, one of which off location. (D) If a marine mammal is sighted shall be a multiple detonation event. (D) ‘‘Big Eyes’’ on the ship shall be within the ZOI, the animal shall be One of the vessel or aerial surveys used to monitor a 600 yard (548 m) allowed to leave of its own volition. The should involve professionally trained buffer zone for marine mammals during Navy shall suspend detonation exercises marine mammal observers (MMOs). naval-gunfire events. and ensure the area is clear of marine (ii) When operationally feasible, for (E) Ships shall not fire on the target mammals for a full 30 minutes prior to specified training events, aerial or vessel if any marine mammals are detected detonation. surveys shall be used 1–2 days prior to, within or approaching the 600 yd (548 (E) Divers placing the charges on during (if reasonably safe), and 1–5 days m) buffer zone until the area is cleared. mines and dive support vessel post detonation. If marine mammals are present, personnel shall survey the area for (iii) Surveys shall include any operations shall be suspended. Visual marine mammals and shall report any specified exclusion zone around a observation shall occur for sightings to the surface observers. These particular detonation point plus 2,000 approximately 45 minutes, or until the animals shall be allowed to leave of yards beyond the border of the animal has been observed to have their own volition and the ZOI shall be exclusion zone (i.e., the circumference cleared the area and is heading away clear of marine mammals for 30 minutes of the area from the border of the from the buffer zone. prior to detonation. exclusion zone extending 2,000 yards (F) Post-exercise monitoring of the (F) No detonations shall take place outwards). For vessel-based surveys a entire target area shall take place with within 3.2 nm (6 km) of an estuarine passive acoustic system (hydrophone or ‘‘Big Eyes’’ and the naked eye during the inlet. towed array) could be used to determine

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if marine mammals are in the area other designated exercise shall be (regional stranding coordinator) is before and/or after a detonation event. monitored by the Navy lookouts/ notified immediately (or as soon as (iv) When conducting a particular watchstanders. clearance procedures allow) if an survey, the survey team shall collect: (ii) The MMO must possess expertise injured or dead marine mammal is (A) Location of sighting; in species identification of regional found during or shortly after, and in the (B) Species (if not possible, indicate marine mammal species and experience vicinity of, any Navy training exercise whale, dolphin or pinniped); collecting behavioral data. utilizing underwater explosive (C) Number of individuals; (iii) MMOs shall not be placed aboard detonations. The Navy shall provide (D) Whether calves were observed; Navy platforms for every Navy training NMFS with species or description of the (E) Initial detection sensor; event or major exercise, but during animal(s), the condition of the animal(s) (F) Length of time observers specifically identified opportunities (including carcass condition if the maintained visual contact with marine deemed appropriate for data collection animal is dead), location, time of first mammal; efforts. The events selected for MMO discovery, observed behaviors (if alive), (G) Wave height; participation shall take into account and photo or video (if available). (H) Visibility; safety, logistics, and operational (f) Annual JAX Range Complex (I) Whether sighting was before, concerns. Monitoring Plan Report—The Navy during, or after detonations/exercise, (iv) MMOs shall observe from the shall submit a report annually on March and how many minutes before or after; same height above water as the 1 describing the implementation and (J) Distance of marine mammal from lookouts. results (through January 1 of the same actual detonations (or target spot if not (v) The MMOs shall not be part of the year) of the JAX Range Complex yet detonated); Navy’s formal reporting chain of Monitoring Plan. Data collection (K) Observed behavior— command during their data collection methods will be standardized across Watchstanders shall report, in plain efforts; Navy lookouts shall continue to range complexes to allow for language and without trying to serve as the primary reporting means comparison in different geographic categorize in any way, the observed within the Navy chain of command for locations. Although additional behavior of the animal(s) (such as marine mammal sightings. The only information will also be gathered, the animal closing to bow ride, paralleling exception is that if an animal is MMOs collecting marine mammal data course/speed, floating on surface and observed within the shutdown zone that pursuant to the JAX Range Complex not swimming etc.), including speed has not been observed by the lookout, Monitoring Plan shall, at a minimum, and direction; the MMO shall inform the lookout of the provide the same marine mammal (L) Resulting mitigation sighting and the lookout shall take the observation data required in § 218.14(g). implementation—Indicate whether appropriate action through the chain of The JAX Range Complex Monitoring explosive detonations were delayed, command. Plan Report may be provided to NMFS ceased, modified, or not modified due to (vi) The MMOs shall collect species within a larger report that includes the marine mammal presence and for how identification, behavior, direction of required Monitoring Plan Reports from long; and travel relative to the Navy platform, and JAX Range Complex and multiple range (M) If observation occurs while distance first observed. Information complexes. explosives are detonating in the water, collected by MMOs shall be the same as (g) Annual JAX Range Complex indicate munition type in use at time of those collected by Navy lookout/ Exercise Report—The Navy shall marine mammal detection. watchstanders described in provide the information described (2) Passive acoustic monitoring—the § 218.14(c)(1)(iv). below for all of their explosive Navy shall conduct passive acoustic (d) The Navy shall complete an exercises. Until the Navy is able to monitoring when operationally feasible. Integrated Comprehensive Monitoring report in full the information below, (i) Any time a towed hydrophone Program (ICMP) Plan in 2009. This they shall provide an annual update on array is employed during shipboard planning and adaptive management tool the Navy’s explosive tracking methods, surveys, the towed array shall be shall include: including improvements from the deployed during daylight hours for each (1) A method for prioritizing previous year. of the days the ship is at sea. monitoring projects that clearly (i) Total annual number of each type (ii) The towed hydrophone array shall describes the characteristics of a of explosive exercise (of those identified be used to supplement the ship-based proposal that factor into its priority. as part of the ‘‘specified activity’’ in this systematic line-transect surveys (2) A method for annually reviewing, final rule) conducted in the JAX Range (particularly for species such as beaked with NMFS, monitoring results, Navy Complex. whales that are rarely seen). R&D, and current science to use for (ii) Total annual expended/detonated (iii) The array shall have the potential modification of mitigation or rounds (missiles, bombs, etc.) for each capability of detecting low frequency monitoring methods. explosive type. vocalizations (<1,000 Hz) for baleen (3) A detailed description of the (h) JAX Range Complex 5-yr whales and relatively high frequency Monitoring Workshop to be convened in Comprehensive Report—The Navy shall (up to 30 kHz) for odontocetes. The use 2011 and how and when Navy/NMFS submit to NMFS a draft report that of two simultaneously deployed arrays will subsequently utilize the findings of analyzes and summarizes all of the can also allow more accurate the Monitoring Workshop to potentially multi-year marine mammal information localization and determination of diving modify subsequent monitoring and gathered during the JAX Range Complex patterns. mitigation. exercises for which annual reports are (3) Marine mammal observers on (4) An adaptive management plan. required (Annual JAX Range Complex Navy platforms: (5) A method for standardizing data Exercise Reports and JAX Range (i) As required in § 218.14(c)(1), collection for JAX Range Complex and Complex Monitoring Plan Reports). This MMOs selected for aerial or vessel across range complexes. report shall be submitted at the end of survey shall be placed on a Navy (e) General Notification of Injured or the fourth year of the rule (May 2013), platform during one of the explosive Dead Marine Mammals—Navy covering activities that have occurred exercises being monitored per year, the personnel shall ensure that NMFS through December 1, 2012.

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(i) The Navy shall respond to NMFS’ § 218.17 Renewal of Letters of (2) Findings of the Monitoring comments and requests for additional Authorization and adaptive management. Workshop that the Navy will convene in information or clarification on the JAX (a) A Letter of Authorization issued 2011 (§ 218.14(j)). Range Complex Comprehensive Report, under § 216.106 and § 218.16 of this (3) Compiled results of Navy funded the Annual JAX Range Complex chapter for the activity identified in research and development (R&D) studies Exercise Report, or the Annual JAX § 218.10(c) will be renewed annually (presented pursuant to the ICMP Range Complex Monitoring Plan Report upon: (§ 218.14(d)). (or the multi-Range Complex Annual (1) Notification to NMFS that the (4) Results from specific stranding Monitoring Plan Report, if that is how activity described in the application investigations (either from the JAX the Navy chooses to submit the submitted under § 218.15 shall be Range Complex Study Area or other information) if submitted within 3 undertaken and that there will not be a locations). (5) Results from general marine months of receipt. These reports will be substantial modification to the mammal and sound research (funded by considered final after the Navy has described work, mitigation or the Navy (described below) or addressed NMFS’ comments or monitoring undertaken during the otherwise). provided the requested information, or upcoming 12 months; three months after the submittal of the (6) Any information which reveals (2) Timely receipt of the monitoring that marine mammals may have been draft if NMFS does not comment by reports required under § 218.14; and then. taken in a manner, extent or number not (3) A determination by NMFS that the (j) In 2011, the Navy shall convene a authorized by these regulations or mitigation, monitoring and reporting subsequent Letters of Authorization. Monitoring Workshop in which the measures required under § 218.13 and Monitoring Workshop participants will the Letter of Authorization issued under § 218.18 Modifications to Letters of be asked to review the Navy’s §§ 216.106 and 218.16 of this chapter Authorization. Monitoring Plans and monitoring results were undertaken and will be undertaken (a) Except as provided in paragraph and make individual recommendations during the upcoming annual period of (b) of this section, no substantive (to the Navy and NMFS) of ways of validity of a renewed Letter of modification (including withdrawal or improving the Monitoring Plans. The Authorization. suspension) to the Letter of recommendations shall be reviewed by (b) If a request for a renewal of a Authorization by NMFS, issued the Navy, in consultation with NMFS, Letter of Authorization issued under pursuant to § 216.106 of this chapter and modifications to the Monitoring §§ 216.106 and 218.17 of this chapter and § 218.16 and subject to the Plan shall be made, as appropriate. indicates that a substantial modification provisions of this subpart shall be made § 218.15 Applications for Letters of to the described work, mitigation or until after notification and an Authorization. monitoring undertaken during the opportunity for public comment has been provided. For purposes of this To incidentally take marine mammals upcoming season will occur, NMFS will paragraph, a renewal of a Letter of pursuant to these regulations, the U.S. provide the public a period of 30 days Authorization under § 218.17, without citizen (as defined by § 216.103 of this for review and comment on the request. modification (except for the period of chapter) conducting the activity Review and comment on renewals of validity), is not considered a substantive identified in § 218.10(a) (the U.S. Navy) Letters of Authorization are restricted to: modification. must apply for and obtain either an (b) If the Assistant Administrator initial Letter of Authorization in (1) New cited information and data indicating that the determinations made determines that an emergency exists accordance with § 218.16 or a renewal that poses a significant risk to the well- under § 218.17. in this document are in need of reconsideration, and being of the species or stocks of marine mammals specified in § 218.11(b), a § 218.16 Letters of Authorization. (2) Proposed changes to the mitigation Letter of Authorization issued pursuant (a) A Letter of Authorization, unless and monitoring requirements contained to § 216.106 of this chapter and § 218.16 suspended or revoked, will be valid for in these regulations or in the current may be substantively modified without a period of time not to exceed the period Letter of Authorization. prior notification and an opportunity for of validity of this subpart, but must be (c) A notice of issuance or denial of public comment. Notification will be renewed annually subject to annual a renewal of a Letter of Authorization published in the Federal Register renewal conditions in § 218.17. will be published in the Federal within 30 days subsequent to the action. (b) Each Letter of Authorization will Register. set forth: (d) NMFS, in response to new [FR Doc. E9–13698 Filed 6–8–09; 4:15 pm] (1) Permissible methods of incidental information and in consultation with BILLING CODE 3510–22–P taking; the Navy, may modify the mitigation or (2) Means of effecting the least monitoring measures in subsequent DEPARTMENT OF COMMERCE practicable adverse impact on the LOAs if doing so creates a reasonable species, its habitat, and on the likelihood of more effectively National Oceanic and Atmospheric availability of the species for accomplishing the goals of mitigation Administration subsistence uses (i.e., mitigation); and and monitoring set forth in the preamble (3) Requirements for mitigation, of these regulations. Below are some of 50 CFR Part 218 monitoring and reporting. the possible sources of new data that (c) Issuance and renewal of the Letter could contribute to the decision to RIN 0648–AX10 modify the mitigation or monitoring of Authorization will be based on a Taking and Importing Marine measures: determination that the total number of Mammals; U.S. Navy Training in the marine mammals taken by the activity (1) Results from the Navy’s Cherry Point Range Complex as a whole will have no more than a monitoring from the previous year negligible impact on the affected species (either from JAX Study Area or other AGENCY: National Marine Fisheries or stock of marine mammal(s). locations). Service (NMFS), National Oceanic and

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Atmospheric Administration (NOAA), published will be addressed herein. information to its original requests. The Commerce. Additionally, this final rule contains a activities to be conducted in the Cherry ACTION: Final rule. section that responds to the comments Point Range Complex are classified received during the public comment military readiness activities. The Navy SUMMARY: NMFS, upon application from period. states that these training activities may the U.S. Navy (Navy), is issuing cause various impacts to marine Background regulations to govern the unintentional mammal species in the proposed Cherry taking of marine mammals incidental to Sections 101(a)(5)(A) and (D) of the Point Range Complex area. The Navy activities conducted at the Cherry Point MMPA (16 U.S.C. 1361 et seq.) direct requests an authorization to take two Range Complex for the period of June the Secretary of Commerce (Secretary) individuals of Atlantic spotted dolphins 2009 through June 2014. The Navy’s to allow, upon request, the incidental, annually by Level B Harassment. The activities are considered military but not intentional taking of marine Navy does not anticipate any Level A readiness activities pursuant to the mammals by U.S. citizens who engage harassment (injury). Please refer to the Marine Mammal Protection Act in a specified activity (other than take table on page 6 to the Addendum (MMPA), as amended by the National commercial fishing) during periods of of the LOA application for detailed Defense Authorization Act for Fiscal not more than five consecutive years information of the potential exposures Year 2004 (NDAA). These regulations, each if certain findings are made and from explosive ordnance (per year) for which allow for the issuance of ‘‘Letters regulations are issued or, if the taking is marine mammals in the Cherry Point of Authorization’’ (LOAs) for the limited to harassment, notice of a Range Complex. Due to the proposed incidental take of marine mammals proposed authorization is provided to mitigation and monitoring measures, during the described activities and the public for review. NMFS does not expect the proposed specified timeframes, prescribe the Authorization shall be granted if action would result in any marine permissible methods of taking and other NMFS finds that the taking will have a mammal mortality. Therefore, no means of effecting the least practicable negligible impact on the species or mortality would be authorized for the adverse impact on marine mammal stock(s), will not have an unmitigable Navy’s Cherry Point Range Complex species and their habitat, as well as adverse impact on the availability of the training activities. requirements pertaining to the species or stock(s) for subsistence uses, Description of the Specified Activities monitoring and reporting of such taking. and if the permissible methods of taking DATES: Effective June 8, 2009 and is and requirements pertaining to the The proposed rule contains a applicable to the Navy on June 5, 2009 mitigation, monitoring and reporting of complete description of the Navy’s through June 4, 2014. such taking are set forth. NMFS has specified activities that are covered by ADDRESSES: A copy of the Navy’s defined ‘‘negligible impact’’ in 50 CFR these final regulations, and for which application (which contains a list of the 216.103 as: the associated incidental take of marine mammals will be authorized in the references used in this document), An impact resulting from the specified NMFS’ Record of Decision (ROD), and activity that cannot be reasonably expected related LOAs. The proposed rule other documents cited herein may be to, and is not reasonably likely to, adversely describes the nature and number of the obtained by writing to Michael Payne, affect the species or stock through effects on training activities. These training Chief, Permits, Conservation and annual rates of recruitment or survival. activities consist of surface warfare [Missile Exercise (MISSILEX)], mine Education Division, Office of Protected The National Defense Authorization warfare [Mine Exercise (MINEX)], Resources, National Marine Fisheries Act of 2004 (NDAA) (Pub. L.108–136) amphibious warfare [Firing Exercise Service, 1315 East-West Highway, Silver removed the ‘‘small numbers’’ and (FIREX)], and vessel movement to, from Spring, MD 20910–3225 or by telephone ‘‘specified geographical region’’ and within the Cherry Point Range via the contact listed here (see FOR limitations and amended the definition Complex Study Area. The descriptions FURTHER INFORMATION CONTACT). of ‘‘harassment’’ as it applies to a of MISSILEX and vessel movement Additionally, the Navy’s LOA ‘‘military readiness activity’’ to read as contained in the proposed rule (74 FR application may be obtained by visiting follows (Section 3(18)(B) of the MMPA): the Internet at: http:// 11052; pages 11052–11053) have not (i) Any act that injures or has the changed. The Navy made subsequent www.nmfs.noaa.gov/pr/permits/ significant potential to injure a marine incidental.htm#applications. modifications to the description of the mammal or marine mammal stock in the wild MINEX and FIREX activities since the FOR FURTHER INFORMATION CONTACT: [Level A Harassment]; or (ii) any act that disturbs or is likely to disturb a marine proposed rule was published. The Shane Guan, Office of Protected purpose of the modifications is to Resources, NMFS, (301) 713–2289, ext. mammal or marine mammal stock in the wild by causing disruption of natural behavioral improve clarity and readability. The 137. patterns, including, but not limited to, change in description of the MINEX and SUPPLEMENTARY INFORMATION: Extensive migration, surfacing, nursing, breeding, FIREX activities has not affected the Supplementary Information was feeding, or sheltering, to a point where such analyses originally presented in the provided in the proposed rule for this behavioral patterns are abandoned or proposed rule or contained in this final activity, which was published in the significantly altered [Level B Harassment]. rule. Revised descriptions of MINEX Federal Register on Monday, March 16, and FIREX follow: 2009 (74 FR 11052). This information Summary of Request will not be reprinted here in its entirety; On June 5, 2008, NMFS received an Mine Warfare/Mine Exercises rather, all sections from the proposed application from the Navy requesting Mine Warfare (MIW) includes the rule will be represented herein and will authorization for the take of Atlantic strategic, operational, and tactical use of contain either a summary of the material spotted dolphin incidental to the mines and mine countermeasures presented in the proposed rule or a note proposed training activities in the (MCM). MIW has two basic referencing the page(s) in the proposed Cherry Point Range Complex over the subdivisions: (a) Laying mines to rule where the information may be course of 5 years. On June 17, 2008, the degrade the enemy’s capabilities to found. Any information that has Navy submitted an Addendum with wage land, air, and maritime warfare, changed since the proposed rule was some modifications and additional and (b) countering enemy-laid mines to

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permit friendly maneuver or use of EOD divers set an explosive charge on U.S. Marine Corps (USMC) landing selected land or sea areas (DoN, 2007d). a floating or underwater mine which forces supported by naval firepower and MIW training events are of two types: they initiate remotely after clearing the logistics. AMW encompasses a broad MCM and mine neutralization. area. The pressure and energy exerted in spectrum of operations involving MCM operations train forces to detect, the water from the relatively smaller maneuver from the sea to objectives identify, classify, mark, avoid, and EOD explosive charge causes the mine ashore, ranging from shore assaults, boat disable (or verify destruction of) to explode. These operations in the raids, ship-to-shore maneuver, shore underwater mines (bottom or moored) Navy Cherry Point Study Area involve bombardment and other naval fire using a variety of methods including air, neutralizing inert training mineshapes support, and air strike and close air surface, sub-surface, and ground assets. with charges of up to 20 lbs Net support. In the Navy Cherry Point Study Mine hunting techniques involve divers, Explosive Weight (NEW). They will Area, the Navy and Marine Corps specialized sonar, and unmanned occur only during daylight hours in the underwater vehicles (UUVs) to locate locations described in Figure 1 of the conduct extensive AMW training, but and classify the mines and then destroy LOA application. the only events involving underwater them using one of two methods: In addition to the current MIW detonation are Firing Exercises (FIREX). Mechanical (explosive cutters) or systems, the Navy will begin training During a FIREX, surface ships use influence (matching the acoustic, with new Organic Mine their main battery guns to fire from sea magnetic, or pressure signature of the Countermeasures (OMCM) systems in at land targets in support of military mine). The MCM systems currently used the Navy Cherry Point Study Area as forces ashore. The east coast has very in Navy Cherry Point Study Area are they are introduced into the fleet. The limited access to land ranges for shore deployed aboard the MH–53E OMCM systems will operate from MH– bombardment. To compensate, Atlantic helicopters. They include mine hunting 60S helicopters, including mine hunting Fleet cruisers and destroyers can create sonar (AQS–24A), influence mine sonar (AQS–20); influence mine virtual land masses on their fire control sweeping systems (MK–105) and sweeping towed arrays (Organic consoles. The ships fire at an array of mechanical mine sweeping systems Airborne and Surface Influence Sweep buoys (Integrated Maritime Portable (MK–103), none of which result in [OASIS]); mine hunting laser (Airborne underwater detonations. Laser Mine Detection System [ALMDS]) Acoustic Scoring and Simulation Mine Neutralization Exercises that uses a light imaging detecting and System [IMPASS]) that detect where the (MINEX) involve the localization, ranging (LIDAR) to detect, localize, and rounds landed, thereby allowing the identification, evaluation, rendering classify near-surface moored/floating ship to score the accuracy of its gunners. safe, and disposal of mines that mines; and anti-mine ordnance systems A FIREX (IMPASS) event in the Navy constitute a threat to ships or personnel. (Rapid Airborne Mine Clearance System Cherry Point Study Area typically This mission is currently done primarily [RAMICS] and Airborne Mine involves up to 70 rounds, 39 of which by Explosive Ordnance Disposal (EOD) Neutralization System [AMNS]). No have high explosive warheads and the divers. They typically deploy from a OMCM training events will involve rest are inert, and occur only during ship or small boat to relocate and underwater detonations. daylight hours in the locations neutralize mines initially located by described in Figure 1 of the LOA Amphibious Warfare another source, such as an MCM or application. coastal minehunter MHC class ship or Amphibious Warfare (AMW) involves an MH–53 or MH–60 helicopter. The projecting military power ashore with

TABLE 1—LEVELS OF TRAINING EVENTS INVOLVE EXPLOSIVES PLANNED IN THE CHERRY POINT RANGE COMPLEX PER YEAR

Event dura- Operation Platform System/ordnance Number of events Time of day tion

MISSILEX (Air to Sur- AH–1W Helicopter ...... AGM–114 (Hellfire; 8-lb 6 sorties (6 HE mis- Day or Night ...... 1 hour. face). NEW 1 HE 2 rounds 3). siles). TOW 4 Missile (all 8 sorties (8 missiles) .... 1 hour. 15.33 NEW HE rounds) 3. MINEX ...... EOD 5 ...... 20 lb NEW charges ...... 20 events ...... Day ...... 8 hours. FIREX with IMPASS.6 CG, DDG 7 ...... 5″ gun (IMPASS) ...... 2 events (78 HE Day ...... 12 hours. rounds). 1 NEW: Net explosive weight. 2 HE: High Explosive. 3 Uses stationary or towed surface targets; 1 missile/sortie. 4 TOW: Tube-launched, Optically tracked, Wire-guided. 5 EOD: Explosive ordnance disposal. 6 IMPASS: Integrated Maritime Portable Acoustic Scoring and Simulation System. 7 CG: guided missile cruiser; DDG: guided missile destroyer.

Cherry Point Range Complex a description of the areas in which occur and their frequency of occurrence. The Cherry Point Range Complex certain types of activities will occur. The description of the Cherry Point proposed rule contains a description of Table 2, included here, summarizes the Range Complex Study Area in the the Cherry Point Study Area along with areas in which explosive events will proposed rule has not changed.

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TABLE 2—NUMBER OF EVENTS UTILIZING EXPLOSIVE MUNITIONS WITHIN THE CHERRY POINT RANGE COMPLEX

Annual Sub-area* Ordnance Winter Spring Summer Fall totals

MISSILEX ...... 14 16 & 17 ...... Hellfire ...... 1.5 1.5 1.5 1.5 6 16 & 17 ...... TOW ...... 2 2 2 2 8 FIREX with IMPASS ...... 2 13 & 14 ...... 5″ rounds ...... 25 .25 .25 .25 1 4 & 5 ...... 5″ rounds ...... 25 .25 .25 .25 1 MINEX ...... 20 UNDET ...... 20 LB...... 5 5 5 5 20 * See Figure 1 of the LOA application for the location of sub-areas.

Description of Marine Mammals in the of those species are expected to occur the normal range of the species. Area of the Specified Activities regularly in the OPAREA, as indicated Extralimital species will not be analyzed There are 33 cetacean species, 4 in Table 3. The remaining species are further in this study. The Description of pinniped species, and 1 sirenian species considered extralimital in the Study Marine Mammals in the Area of the that have the potential or are confirmed Area, indicating there are one or more Specified Activities section has not to occur in the Cherry Point Range records of an animal’s presence in the changed from what was in the proposed Complex (DoN, 2008). However, only 34 Study Area, but it is considered beyond rule (74 FR 11052; pages 11054–11056).

TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE CHERRY POINT RANGE COMPLEX

Family and scientific name Common name Federal status

Order Cetacea

Suborder Mysticeti (baleen whales)

Eubalaena glacialis ...... North Atlantic right whale ...... Endangered. Megaptera novaeangliae ...... Humpback whale ...... Endangered. Balaenoptera acutorostrata ...... Minke whale. B. brydei ...... Bryde’s whale. B. borealis ...... Sei whale ...... Endangered. B. physalus ...... Fin whale ...... Endangered. B. musculus ...... Blue whale ...... Endangered.

Suborder Odontoceti (toothed whales)

Physeter macrocephalus ...... Sperm whale ...... Endangered. Kogia breviceps ...... Pygmy sperm whale. K. sima ...... Dwarf sperm whale. Ziphius cavirostris ...... Cuvier’s beaked whale. Mesoplodon minus ...... True’s beaked whale. M. europaeus ...... Gervais’ beaked whale. M. bidens ...... Sowerby’s beaked whale. M. densirostris ...... Blainville’s beaked whale. Steno bredanensis ...... Rough-toothed dolphin. Tursiops truncatus ...... Bottlenose dolphin. Stenella attenuata ...... Pantropical spotted dolphin. S. frontalis ...... Atlantic spotted dolphin. S. longirostris ...... Spinner dolphin. S. clymene ...... Clymene dolphin. S. coeruleoalba ...... Striped dolphin. Delphinus delphis ...... Common dolphin. Lagenodephis hosei ...... Fraser’s dolphin. Grampus griseus ...... Risso’s dolphin. Peponocephala electra ...... Melon-headed whale. Feresa attenuata ...... Pygmy killer whale. Pseudorca crassidens ...... False killer whale. Orcinus orca ...... Killer whale. Globicephala melas ...... Long-finned pilot whale. G. macrorhynchus ...... Short-finned pilot whale. Phocoena phocoena ...... Harbor porpoise.

Order Carnivora

Suborder Pinnipedia (seals, sea lions, walruses)

Phoca vitulina ...... Harbor seal

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TABLE 3—MARINE MAMMAL SPECIES FOUND IN THE CHERRY POINT RANGE COMPLEX—Continued

Family and scientific name Common name Federal status

Order Sirenia

Trichechus manatus ...... West Indian manatee ...... Endangered.

Potential Impacts to Marine Mammal vessel traffic and vessel noise, and a when a boat heads directly toward the Species lack of consensus among scientists with whale.’’ It is important to recognize that With respect to the MMPA, NMFS’ respect to what these responses mean or behavioral responses to stimuli are effects assessment serves four primary whether they result in short-term or complex and influenced to varying purposes: (1) To prescribe the long-term adverse effects. In those cases where there is a busy shipping lane or degrees by a number of factors such as permissible methods of taking (i.e., species, behavioral contexts, Level B Harassment (behavioral where there is large amount of vessel traffic, marine mammals may geographical regions, source harassment), Level A Harassment characteristics (moving or stationary, (injury), or mortality, including an experience acoustic masking (Hildebrand, 2005) if they are present in speed, direction, etc.), prior experience identification of the number and types of the animal, and physical status of the of take that could occur by Level A or the area (e.g., killer whales in Puget Sound; Foote et al., 2004; Holt et al., animal. For example, studies have B harassment or mortality) and to shown that beluga whales reacted prescribe other means of effecting the 2008). In cases where vessels actively approach marine mammals (e.g., whale differently when exposed to vessel noise least practicable adverse impact on such and traffic. In some cases, naı¨ve beluga species or stock and its habitat (i.e., watching or dolphin watching boats), scientists have documented that animals whales exhibited rapid swimming from mitigation); (2) to determine whether ice-breaking vessels up to 80 km away, the specified activity will have a exhibit altered behavior such as increased swimming speed, erratic and showed changes in surfacing, negligible impact on the affected species breathing, diving, and group or stocks of marine mammals (based on movement, and active avoidance behavior (Bursk, 1983; Acevedo, 1991; composition in the Canadian high the likelihood that the activity will Arctic where vessel traffic is rare (Finley adversely affect the species or stock Baker and MacGibbon, 1991; Trites and Bain, 2000; Williams et al., 2002; et al., 1990). In other cases, beluga through effects on annual rates of whales were more tolerant of vessels, recruitment or survival); (3) to Constantine et al., 2003), reduced blow interval (Ritcher et al., 2003), disruption but differentially responsive by determine whether the specified activity reducing their calling rates, to certain will have an unmitigable adverse impact of normal social behaviors (Lusseau, 2003; 2006), and the shift of behavioral vessels and operating characteristics on the availability of the species or (especially older animals) in the St. stock(s) for subsistence uses (however, activities which may increase energetic costs (Constantine et al., 2003; 2004)). A Lawrence River where vessel traffic is there are no subsistence communities in common (Blane and Jaakson, 1994). In the Cherry Point Range Complex); and detailed review of marine mammal reactions to ships and boats is available Bristol Bay, Alaska, beluga whales (4) to prescribe requirements pertaining continued to feed when surrounded by to monitoring and reporting. in Richardson et al. (1995). For each of the marine mammals taxonomy groups, fishing vessels and resisted dispersal In the Potential Impacts to Marine Richardson et al. (1995) provided the even when purposefully harassed (Fish Mammal Species section of the following assessment regarding cetacean and Vania, 1971). proposed rule, NMFS included a In reviewing more than 25 years of reactions to vessel traffic: qualitative discussion of the different whale observation data, Watkins (1986) ways that vessel strikes and underwater Toothed whales: ‘‘In summary, concluded that whale reactions to vessel explosive detonations from MISSILEX, toothed whales sometimes show no traffic were ‘‘modified by their previous MINEX, and FIREX may potentially avoidance reaction to vessels, or even experience and current activity: affect marine mammals (some of which approach them. However, avoidance can habituation often occurred rapidly, NMFS would not classify as occur, especially in response to vessels attention to other stimuli or harassment). See 74 FR 11052, pages of types used to chase or hunt the preoccupation with other activities 11056–11062. Marine mammals may animals. This may cause temporary sometimes overcame their interest or experience direct physiological effects displacement, but we know of no clear wariness of stimuli.’’ Watkins noticed (such as threshold shift), acoustic evidence that toothed whales have that over the years of exposure to ships masking, impaired communications, abandoned significant parts of their in the Cape Cod area, minke whales stress responses, and behavioral range because of vessel traffic.’’ (Balaenoptera acutorostrata) changed disturbance. The information contained Baleen whales: ‘‘When baleen whales from frequent positive (such as in Potential Impacts to Marine Mammal receive low-level sounds from distant or approaching vessels) interest to Species section from the proposed rule stationary vessels, the sounds often generally uninterested reactions; finback has not changed. seem to be ignored. Some whales whales (B. physalus) changed from Additional analyses on potential approach the sources of these sounds. mostly negative (such as avoidance) to impacts to marine mammals from vessel When vessels approach whales slowly uninterested reactions; right whales movement within the Cherry Point and nonaggressively, whales often (Eubalaena glacialis) apparently Range Complex Study Area are added exhibit slow and inconspicuous continued the same variety of responses below. avoidance maneuvers. In response to (negative, uninterested, and positive strong or rapidly changing vessel noise, responses) with little change; and Vessel Movement baleen whales often interrupt their humpbacks (Megaptera novaeangliae) There are limited data concerning normal behavior and swim rapidly dramatically changed from mixed marine mammal behavioral responses to away. Avoidance is especially strong responses that were often negative to

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often strongly positive reactions. expect the Navy’s vessel movements to biologically important time or location) Watkins (1986) summarized that result in Level B harassment. individuals would be exposed to ‘‘whales near shore, even in regions underwater detonations or other Acoustic Take Criteria with low vessel traffic, generally have activities expected to result in the take become less wary of boats and their In the Acoustic Take Criteria section of marine mammals (this goal may noises, and they have appeared to be of the proposed rule, NMFS described contribute to a, above, or to reducing less easily disturbed than previously. In the development and application of the harassment takes only). particular locations with intense acoustic criteria for explosive (4) A reduction in the intensity of shipping and repeated approaches by detonations (74 FR 11052; pages 11060– exposures (either total number or boats (such as the whale-watching areas 11062). No changes to the modeling number at biologically important time of Stellwagen Bank), more and more have been made except for those or location) to underwater detonations whales had P [positive] reactions to outlined in Potential Impacts to Marine or other activities expected to result in familiar vessels, and they also Mammal Species section of this the take of marine mammals (this goal occasionally approached other boats document. may contribute to a, above, or to reducing the severity of harassment and yachts in the same ways.’’ Mitigation In the case of the Cherry Point Range takes only). Complex, naval vessel traffic is expected In order to issue an incidental take (5) A reduction in adverse effects to to be much lower than in areas where authorization (ITA) under Section marine mammal habitat, paying special there are large shipping lanes and large 101(a)(5)(A) of the MMPA, NMFS must attention to the food base, activities that numbers of fishing vessels and/or prescribe regulations setting forth the block or limit passage to or from recreational vessels. Nevertheless, the ‘‘permissible methods of taking biologically important areas, permanent proposed action area is well traveled by pursuant to such activity, and other destruction of habitat, or temporary a variety of commercial and recreational means of effecting the least practicable destruction/disturbance of habitat vessels, so marine mammals in the area adverse impact on such species or stock during a biologically important time. are expected to be habituated to vessel and its habitat, paying particular (6) For monitoring directly related to noise. attention to rookeries, mating grounds, mitigation—an increase in the As described in the proposed rule, and areas of similar significance.’’ The probability of detecting marine operations involving vessel movements NDAA amended the MMPA as it relates mammals, thus allowing for more occur intermittently and are variable in to military readiness activities and the effective implementation of the duration, ranging from a few hours up incidental take authorization process mitigation (shut-down zone, etc.). to 2 weeks. These operations are widely such that ‘‘least practicable adverse NMFS reviewed the Navy’s proposed dispersed throughout the Cherry Point impact’’ shall include consideration of mitigation measures, which included a Range Complex OPAREA, which is a personnel safety, practicality of careful balancing of the likely benefit of vast area encompassing 18,617 square implementation, and impact on the any particular measure to the marine nautical miles (nm2) (an area effectiveness of the ‘‘military readiness mammals with the likely effect of that approximately the size of West activity.’’ The Cherry Point Range measure on personnel safety, Virginia). The Navy logs about 950 total Complex training activities described in practicality of implementation, and vessel days within the Study Area this rulemaking are considered military impact on the ‘‘military-readiness during a typical year. Consequently, the readiness activities. activity.’’ density of ships within the Study Area NMFS reviewed the Navy’s proposed The Navy’s proposed mitigation at any given time is extremely low (i.e., Cherry Point Range Complex training measures were described in detail in the less than 0.005 ships/nm2). activities and the proposed Cherry Point proposed rule (74 FR 11052, pages Moreover, naval vessels transiting the Range Complex mitigation measures 11066–11069). Slight wording changes study area or engaging in the training presented in the Navy’s application to have been made to the Personnel exercises will not actively or determine whether the activities and Training—Lookouts section as intentionally approach a marine mitigation measures were capable of presented in the Proposed Rule (page mammal or change speed drastically. achieving the least practicable adverse 76592). Bullet 6 of that section is added Except under certain mitigation effect on marine mammals. to clarify nighttime monitoring, which measures that protect right whales and Any mitigation measure prescribed by reads as: ‘‘At night, to increase other marine mammals from vessel NMFS should be known to accomplish, effectiveness, lookouts would not strike, all vessels transit to, from, and have a reasonable likelihood of continuously sweep the horizon with within the range complexes will be accomplishing (based on current their eyes. Instead, lookouts would scan traveling at speeds generally ranging science), or contribute to the the horizon in a series of movements from 10 to 14 knots. accomplishment of one or more of the that would allow their eyes to come to The final rule contains additional general goals listed below: periodic rests as they scan the sector. mitigation measures requiring Navy (1) Avoidance or minimization of When visually searching at night, they vessels to keep at least 500 yards (460 injury or death of marine mammals would look a little to one side and out m) away from any observed whale and wherever possible (goals b, c, and d may of the corners of their eyes, paying at least 200 yards (183 m) from marine contribute to this goal). attention to the things on the outer mammals other than whales, and avoid (2) A reduction in the numbers of edges of their field of vision. Lookouts approaching animals head-on. Although marine mammals (total number or will also have night vision devices the radiated sound from the vessels will number at biologically important time available for use.’’ be audible to marine mammals over a or location) exposed to underwater The Navy’s measures addressing large distance, it is unlikely that animals detonations or other activities expected operating procedures for training will respond behaviorally to low-level to result in the take of marine mammals activities using underwater detonations distant shipping noise as the animals in (this goal may contribute to a, above, or of explosives and firing exercises, and the area are likely to be habituated to to reducing harassment takes only). mitigation related to vessel traffic and such noises (Nowacek et al., 2004). In (3) A reduction in the number of the North Atlantic right whale were light of these facts, NMFS does not times (total number or number at described in the proposed rule. No

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changes have been made to the (specifically through effects on annual towed array) could be used to determine mitigation measures described in the rates of recruitment or survival). if marine mammals are in the area proposed rule except the following. (4) An increased knowledge of the before and/or after a detonation event. In response to a comment from the affected species. (D) When conducting a particular Marine Mammal Commission, NMFS (5) An increase in our understanding survey, the survey team shall collect: will require the Navy to suspend its of the effectiveness of certain mitigation • Location of sighting; activities immediately if a marine and monitoring measures. • Species (if not possible, indicate mammal is injured or killed as a result (6) A better understanding and record whale, dolphin or pinniped); of the proposed Navy training activities of the manner in which the authorized • Number of individuals; (e.g., instances in which it is clear that entity complies with the incidental take • Whether calves were observed; munitions explosions caused the injury authorization. • Initial detection sensor; or death), and report such incident to Monitoring Plan for the Cherry Point • Length of time observers NMFS. Range Complex Study Area maintained visual contact with marine NMFS has determined that these As NMFS indicated in the proposed mammal; mitigation measures (which include a • Wave height; suite of measures that specifically rule, the Navy has (with input from • NMFS) fleshed out the details of and Visibility; address vessel transit and the NARW) • Whether sighting was before, are adequate means of effecting the least made improvements to the Cherry Point Range Complex Monitoring Plan. during, or after detonations/exercise, practicable adverse impacts on marine and how many minutes before or after; mammal species or stocks and their Additionally, NMFS and the Navy have • incorporated a suggestion from the Distance of marine mammal from habitat while also considering personnel actual detonations (or target spot if not safety, practicality of implementation, public, which recommended the Navy hold a peer review workshop to discuss yet detonated); and impact on the effectiveness of the • Observed behavior—Watchstanders military readiness activity. the Navy’s Monitoring Plans for the multiple range complexes and training will report, in plain language and Monitoring exercises in which the Navy would without trying to categorize in any way, In order to issue an ITA for an receive ITAs (see Monitoring Workshop the observed behavior of the animal(s) activity, Section 101(a)(5)(A) of the section). The final Cherry Point Range (such as animal closing to bow ride, MMPA states that NMFS must set forth Complex Monitoring Plan, which is paralleling course/speed, floating on ‘‘requirements pertaining to the summarized below, may be viewed at surface and not swimming etc.), including speed and direction; monitoring and reporting of such http://www.nmfs.noaa.gov/pr/permits/ • taking.’’ The MMPA implementing incidental.htm#applications. The Navy Resulting mitigation regulations at 50 CFR 216.104 (a)(13) plans to implement all of the implementation—Indicate whether indicate that requests for LOAs must components of the Monitoring Plan; explosive detonations were delayed, include the suggested means of however, only the marine mammal ceased, modified, or not modified due to accomplishing the necessary monitoring components (not the sea turtle marine mammal presence and for how long; and and reporting that will result in components) will be required by the • increased knowledge of the species and MMPA regulations and associated If observation occurs while of the level of taking or impacts on LOAs. explosives are detonating in the water, populations of marine mammals that are A summary of the monitoring indicate munitions type in use at time expected to be present. methods required for use during of marine mammal detection (e.g., were Monitoring measures prescribed by training events in the Cherry Point the 5-inch guns actually firing when the NMFS should accomplish one or more Range Complex are described below. animals were sighted? Did animals enter of the following general goals: These methods include a combination an area 2 minutes after a huge explosion (1) An increase in the probability of of individual elements that are designed went off?). detecting marine mammals, both within to allow a comprehensive assessment. II. Passive Acoustic Monitoring the safety zone (thus allowing for more effective implementation of the I. Vessel or Aerial Surveys: The Navy is required to conduct mitigation) and in general to generate (A) The Holder of this Authorization passive acoustic monitoring when more data to contribute to the effects shall visually survey a minimum of 1 operationally feasible. analyses. explosive event per year. If possible, the (A) Any time a towed hydrophone (2) An increase in our understanding event surveyed will be one involving array is employed during shipboard of how many marine mammals are multiple detonations. One of the vessel surveys the towed array shall be likely to be exposed to levels of or aerial surveys should involve deployed during daylight hours for each underwater detonations or other stimuli professionally trained marine mammal of the days the ship is at sea. that we associate with specific adverse observers (MMOs). (B) The towed hydrophone array shall effects, such as behavioral harassment, (B) When operationally feasible, for be used to supplement the ship-based temporary threshold shift of hearing specified training events, aerial or vessel systematic line-transect surveys sensitivity (TTS), or permanent surveys shall be used 1–2 days prior to, (particularly for species such as beaked threshold shift of hearing sensitivity during (if reasonably safe), and 1–5 days whales that are rarely seen). (PTS). post detonation. (3) An increase in our understanding (C) Surveys shall include any III. Marine Mammal Observers on Navy of how marine mammals respond specified exclusion zone around a Platforms (behaviorally or physiologically) to particular detonation point plus 2,000 (A) MMOs selected for aerial or vessel underwater detonations or other stimuli yards beyond the border of the surveys shall be placed on a Navy expected to result in take and how exclusion zone (i.e., the circumference platform during one of the exercises anticipated adverse effects on of the area from the border of the being monitored per year. The individuals (in different ways and to exclusion zone extending 2,000 yards remaining designated exercise(s) shall varying degrees) may impact the outwards). For vessel-based surveys a be monitored by the Navy lookouts/ population, species, or stock passive acoustic system (hydrophone or watchstanders.

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(B) The MMO must possess expertise NMFS received a recommendation that individual areas (e.g. AFAST, HRC, in species identification of regional a workshop or panel be convened to SOCAL, VACAPES); instead it is marine mammal species and experience solicit input on the monitoring plan intended to provide the overarching collecting behavioral data. from researchers, experts, and other coordination that will support (C) MMOs shall not be placed aboard interested parties. The Cherry Point compilation of data from both range- Navy platforms for every Navy training Range Complex proposed rule included specific monitoring plans as well as event or major exercise, but during an adaptive management component Navy funded research and development specifically identified opportunities and both NMFS and the Navy believe (R&D) studies. The ICMP will deemed appropriate for data collection that a workshop would provide a means coordinate the monitoring programs’ efforts. The events selected for MMO for Navy and NMFS to consider input progress towards meeting its goals and participation shall take into account from participants in determining develop a data management plan. A safety, logistics, and operational whether (and if so, how) to modify program review board is also being concerns. monitoring techniques to more considered to provide additional (D) MMOs shall observe from the effectively accomplish the goals of guidance. The ICMP will be evaluated same height above water as the monitoring set forth earlier in the annually to provide a matrix for lookouts. document. NMFS and the Navy believe progress and goals for the following (E) The MMOs shall not be part of the that this workshop concept is valuable year, and will make recommendations Navy’s formal reporting chain of in relation to all of the Range Complexes on adaptive management for refinement command during their data collection and major training exercise rules and and analysis of the monitoring methods. efforts; Navy lookouts shall continue to LOAs that NMFS is working on with the The primary objectives of the ICMP serve as the primary reporting means Navy at this time. Consequently, NMFS are to: within the Navy chain of command for has determined that this single • Monitor and assess the effects of marine mammal sightings. The only Monitoring Workshop will be included Navy activities on protected species; exception is that if an animal is as a component of all of the rules and • Ensure that data collected at observed within the shutdown zone that LOAs that NMFS will be processing for multiple locations is collected in a has not been observed by the lookout, the Navy in the next year or so. manner that allows comparison between the MMO shall inform the lookout of the The Navy, with guidance and support and among different geographic sighting, and the lookout shall take the from NMFS, will convene a Monitoring locations; • appropriate action through the chain of Workshop, including marine mammal Assess the efficacy and practicality command. and acoustic experts as well as other of the monitoring and mitigation (F) The MMOs shall collect species interested parties, in 2011. The techniques; • identification, behavior, direction of Monitoring Workshop participants will Add to the overall knowledge-base travel relative to the Navy platform, and review the monitoring results from the of marine species and the effects of distance first observed. All MMO previous two years of monitoring Navy activities on marine species. sightings shall be conducted according pursuant to the Cherry Point Range The ICMP will be used both as: (1) A to a standard operating procedure. Complex rule as well as monitoring planning tool to focus Navy monitoring Information collected by MMOs should results from other Navy rules and LOAs priorities (pursuant to ESA/MMPA be the same as those collected by Navy (e.g., VACAPES, AFAST, SOCAL, HRC, requirements) across Navy Range lookout/watchstanders described above. and other rules). The Monitoring Complexes and Exercises; and (2) an The Monitoring Plan for the Cherry Workshop participants would provide adaptive management tool, through the Point Range Complex has been designed their individual recommendations to the consolidation and analysis of the Navy’s as a collection of focused ‘‘studies’’ Navy and NMFS on the monitoring monitoring and watchstander data, as (described fully in the Cherry Point plan(s) after also considering the current well as new information from other Monitoring Plan) to gather data that will science (including Navy research and Navy programs (e.g., R&D), and other allow the Navy to address the following development) and working within the appropriate newly published questions: framework of available resources and information. (A) What are the behavioral responses feasibility of implementation. NMFS In combination with the 2011 of marine mammals and sea turtles that and the Navy would then analyze the Monitoring Workshop and the adaptive are exposed to explosives? input from the Monitoring Workshop management component of the Cherry (B) Is the Navy’s suite of mitigation participants and determine the best way Point Range Complex rule and the other measures effective at avoiding injury forward from a national perspective. Navy rules (e.g. VACAPES Range and mortality of marine mammals and Subsequent to the Monitoring Complex, Jacksonville Range Complex, sea turtles? Workshop, modifications would be etc.), the ICMP could potentially Data gathered in these studies will be applied to monitoring plans as provide a framework for restructuring collected by qualified, professional appropriate. the monitoring plans and allocating marine mammal biologists or trained monitoring effort based on the value of Integrated Comprehensive Monitoring Navy lookouts/watchstanders that are particular specific monitoring proposals Program experts in their field. This monitoring (in terms of the degree to which results plan has been designed to gather data on In addition to the site-specific would likely contribute to stated all species of marine mammals that are Monitoring Plan for the Cherry Point monitoring goals, as well the likely observed in the Cherry Point Range Range Complex, the Navy will complete technical success of the monitoring Complex study area. the Integrated Comprehensive based on a review of past monitoring Monitoring Program (ICMP) Plan by the results) that have been developed Monitoring Workshop end of 2009. The ICMP is currently in through the ICMP framework, instead of During the public comment period on development by the Navy, with Chief of allocating based on maintaining an past proposed rules for Navy actions Naval Operations Environmental equal (or commensurate to effects) (such as the Hawaii Range Complex Readiness Division (CNO–N45) having distribution of monitoring effort across (HRC), and Southern California Range the lead. The program does not range complexes. For example, if careful Complex (SOCAL) proposed rules), duplicate the monitoring plans for prioritization and planning through the

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ICMP (which would include a review of • Findings of the Workshop that the be classified and not releasable to the both past monitoring results and current Navy will convene in 2011 to analyze public. scientific developments) were to show monitoring results to date, review NMFS will work with the Navy to that a large, intense monitoring effort in current science, and recommend develop tables that allow for efficient Hawaii would likely provide extensive, modifications, as appropriate to the submission of the information required robust and much-needed data that could monitoring protocols to increase below. be used to understand the effects of monitoring effectiveness. sonar throughout different geographical • Compiled results of Navy funded General Notification of Injured or Dead areas, it may be appropriate to have research and development (R&D) studies Marine Mammals other range complexes dedicate money, (presented pursuant to the ICMP, which Navy personnel will ensure that resources, or staff to the specific is discussed elsewhere in this NMFS (regional stranding coordinator) monitoring proposal identified as ‘‘high document). • is notified immediately (or as soon as priority’’ by the Navy and NMFS, in lieu Results from specific stranding operational security allows) if an of focusing on smaller, lower priority investigations (either from Cherry Point injured or dead marine mammal is projects divided throughout their home Range Complex or other locations). found during or shortly after, and in the • Results from general marine range complexes. vicinity of, any Navy training exercise mammal and sound research (funded by The ICMP will identify: utilizing underwater explosive • the Navy or otherwise). A means by which NMFS and the • Any information which reveals that detonations or other activities. The Navy would jointly consider prior years’ marine mammals may have been taken Navy will provide NMFS with species monitoring results and advancing in a manner, extent or number not or description of the animal(s), the science to determine if modifications authorized by these regulations or condition of the animal(s) (including are needed in mitigation or monitoring subsequent Letters of Authorization. carcass condition if the animal is dead), measures to better effect the goals laid Mitigation measures could be location, time of first discovery, out in the Mitigation and Monitoring modified or added (or deleted) if new observed behaviors (if alive), and photo sections of the Cherry Point Range data suggests that such modifications or video (if available). Complex rule. would have (or do not have) a Annual Cherry Point Range Complex • Guidelines for prioritizing reasonable likelihood of accomplishing Monitoring Plan Report monitoring projects the goals of mitigation laid out in this • If, as a result of the workshop and final rule and if the measures are The Navy shall submit a report similar to the example described in the practicable. NMFS would also annually on March 1 describing the paragraph above, the Navy and NMFS coordinate with the Navy to modify or implementation and results (through decide it is appropriate to restructure add to (or delete) the existing January 1 of the same year) of the Cherry the monitoring plans for multiple ranges monitoring requirements if the new data Point Range Complex Monitoring Plan, such that they are no longer evenly suggest that the addition of (or deletion described above. Data collection allocated (by rule), but rather focused on of) a particular measure would more methods will be standardized across priority monitoring projects that are not effectively accomplish the goals of range complexes to allow for necessarily tied to the geographic area monitoring laid out in this final rule. comparison in different geographic addressed in the rule, the ICMP will be The reporting requirements associated locations. Although additional modified to include a very clear and with this rule are designed to provide information will also be gathered, the unclassified record-keeping system that NMFS with monitoring data from the MMOs collecting marine mammal data will allow NMFS and the public to see previous year to allow NMFS to pursuant to the Cherry Point Range how each range complex/project is consider the data and issue annual Complex Monitoring Plan shall, at a contributing to all of the ongoing LOAs. NMFS and the Navy will meet minimum, provide the same marine monitoring programs (resources, effort, annually, prior to LOA issuance, to mammal observation data required in money, etc.). discuss the monitoring reports, Navy major range complex training exercises section of the Annual Cherry Point Adaptive Management R&D developments, and current science and whether mitigation or monitoring Range Complex Exercise Report The final regulations governing the modifications are appropriate. referenced below. take of marine mammals incidental to The Cherry Point Range Complex Navy’s Cherry Point Range Complex Reporting Monitoring Plan Report may be exercises contain an adaptive In order to issue an ITA for an provided to NMFS within a larger report management component. The use of activity, Section 101(a)(5)(A) of the that includes the required Monitoring adaptive management will give NMFS MMPA states that NMFS must set forth Plan Reports from multiple Range the ability to consider new data from ‘‘requirements pertaining to the Complexes. different sources to determine (in monitoring and reporting of such Annual Cherry Point Range Complex coordination with the Navy) on an taking’’. Effective reporting is critical to Exercise Report annual basis if mitigation or monitoring ensure compliance with the terms and measures should be modified or added conditions of a LOA, and to provide The Navy is in the process of (or deleted) if new data suggests that NMFS and the Navy with data of the improving the methods used to track such modifications are appropriate (or highest quality based on the required explosives used to provide increased are not appropriate) for subsequent monitoring. As NMFS noted in its granularity. The Navy will provide the annual LOAs. proposed rule, additional detail has information described below for all of The following are some of the been added to the reporting their explosive exercises. Until the Navy possible sources of applicable data: requirements since they were outlined is able to report in full the information • Results from the Navy’s monitoring in the proposed rule. The updated below, they will provide an annual from the previous year (either from reporting requirements are all included update on the Navy’s explosive tracking Cherry Point Range Complex or other below. A subset of the information methods, including improvements from locations). provided in the monitoring reports may the previous year.

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(i) Total annual number of each type (IHA) under section 101(a)(5)(D) of the proposed IHAs. However, this statutory of explosive exercise (of those identified MMPA. provision is inapplicable as NMFS as part of the ‘‘specified activity’’ in this Response: There is no prescribed invoked the rulemaking provision of the final rule) conducted in the Cherry minimum timeframe for public MMPA (Section 101(a)(5)(A)), a Point Range Complex. comment on proposed rules in the APA provision which contains no reference (ii) Total annual expended/detonated or section 101(a)(5)(A) of MMPA. NMFS to a minimum timeframe for public rounds (missiles, bombs, etc.) for each routinely strives to ensure that the comment. explosive type. public is afforded at least a 30-day Based on the foregoing, NMFS public comment period on all MMPA concluded that the 28-day public Cherry Point Range Complex 5-yr rules. However, circumstances may comment period was reasonable. Comprehensive Report make a shorter comment period Comment 2: The Commission The Navy shall submit to NMFS a necessary and reasonable. recommends that NMFS require the draft report that analyzes and As an initial matter, whenever NMFS Navy to conduct an external peer review summarizes all of the multi-year marine develops proposed regulations under of its marine mammal density estimates, mammal information gathered during the MMPA, the agency is required to including the data upon which those first publish a notice of receipt of a estimates are based and the manner in the Cherry Point Range Complex request for the implementation of which those data are collected and used. exercises for which annual reports are regulations and LOAs governing the Response: As discussed in detail in required (Annual Cherry Point Range incidental taking. This process typically the proposed rule (74 FR 11052; March Complex Exercise Reports and Cherry affords the public up to 30 days to 16, 2009), marine mammal density Point Range Complex Monitoring Plan comment on a requester’s application estimates were based on the most recent Reports). This report will be submitted and provide NMFS with information data and information on the occurrence, at the end of the fourth year of the rule and suggestions that will be considered distribution, and density of marine (May 2013), covering activities that have in developing MMPA regulations. See mammals. The updated density occurred through December 1, 2012. 50 CFR 216.104. On July 8, 2008, NMFS estimates presented in this assessment Comments and Responses published its ‘‘Notice; receipt of are derived from the Navy OPAREA application for a Letter of Authorization Density Estimates (NODE) for the On March 16, 2009, NMFS published (LOA); request for comments and Southeast OPAREAs report (DoN, 2007). a proposed rule (74 FR 11052) in information’’ for the Cherry Point Range Density estimates for cetaceans were response to the Navy’s request to take Complex and solicited input for 30 days derived in one of three ways, in order marine mammals incidental to military (See 73 FR 38991). of preference: (1) Through spatial readiness training in the Cherry Point The public was also afforded 28 days models using line-transect survey data Range Complex study area and to comment on the Cherry Point Range provided by the NMFS (as discussed requested comments, information and Complex proposed rule. NMFS below); (2) using abundance estimates suggestions concerning the request. originally provided the public with 21 from Mullin and Fulling (2003); or (3) During the 28-day public comment days because of: (1) The tight deadline based on the cetacean abundance period, NMFS received comments from of the training activities identified in the estimates found in the NMFS stock the Marine Mammal Commission Navy’s schedule; and (2) the fact that assessment reports (SAR; Waring et al., (Commission) and from the Natural NMFS anticipated even fewer effects to 2007), which can be viewed at http:// Resources Defense Council (on behalf of marine mammals as compared to similar www.nmfs.noaa.gov/pr/sars/ Cetacean Society International, League activities to be conducted in the Navy’s species.htm. for Coastal Protection, Ocean Futures Virginia Capes (VACAPES) and For the model-based approach, Society, Jean-Michel Cousteau). The Jacksonville Range Complexes (JAX) density estimates were calculated for comments are summarized and sorted (each of which contained a 30-day each species within areas containing into general topic areas and are comment period). NMFS, at the request survey effort. A relationship between addressed below. of the Commission, extended the public these density estimates and the MMPA Concerns comment period by 7 days to allow associated environmental parameters additional time for comment (74 FR such as depth, slope, distance from the Comment 1: Noting that NMFS 15419; April 6, 2009). During the public shelf break, sea surface temperature, and initially provided a shorter than usual comment period, the Commission was chlorophyll concentration was public comment period for the proposed the only entity that provided relevant formulated using generalized additive rule for the Cherry Point Range Complex comments on the Cherry Point Range models. This relationship was then used training activities, the Commission Complex proposed rule. to generate a two-dimensional density recommends that NMFS adopt a policy Next, the Commission’s reference to surface for the region by predicting to provide a 60-day comment period for section 553(b)(3)(B) of the APA is densities in areas where no survey data all proposed regulations issued under misplaced. The provision to which the exist. section 101(a)(5)(A), and in no case less Commission cites applies where an The analyses for cetaceans were based than a 45-day comment period. The agency, for good cause, dispenses with on sighting data collected through Commission argues that such a short prior opportunity for notice and shipboard surveys conducted by NMFS comment period is impractical, comment because it has found that to do Northeast Fisheries Science Center unnecessary, or contrary to the public so would be impracticable, unnecessary, (NEFSC) and Southeast Fisheries interest, as provided for under section or contrary to the public interest. As Science Center (SEFSC) between 1998 553(b)(3)(B) of the Administrative NMFS engaged in APA notice and and 2005. Species-specific density Procedure Act (APA). The Commission comment rulemaking, the Commission estimates derived through spatial also argues that it was unreasonable for cannot rely on this provision to support modeling were compared with NMFS to afford any less than 30 days, its position. abundance estimates found in the most particularly since Congress requires a Finally, NMFS recognizes that section current NMFS SAR to ensure 30-day public comment period for 101(a)(5)(D) of the MMPA prescribes a consistency. All spatial models and incidental harassment authorizations 30-day public comment period on density estimates were reviewed by and

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coordinated with NMFS Science Center other interested parties once it is not limited to: (1) The use of trained technical staff and scientists with the finalized. However, NMFS does not shipboard lookouts who will conduct University of St. Andrews, Scotland, believe it would be feasible to complete marine mammal monitoring to avoid Centre for Environmental and Ecological the ICMP Plan prior to the end of 2009 collisions with marine mammals; (2) the Modeling (CREEM). Draft models and if a public comment period were use of exclusion zones that avoid preliminary results were reviewed afforded. Nevertheless, components of exposing marine mammals to levels of during a joint workshop attended by the ICMP Plan have already been sound likely to result in injury or death Navy, NMFS Science Center, and factored into a number of MMPA final of marine mammals; (3) several CREEM representatives. Subsequent rules for Navy actions, including the cautionary measures to minimize the revisions and draft reports were Cherry Point Range Complex, and the likelihood of ship strikes of North reviewed by these same parties. Navy is continuing to develop the ICMP Atlantic right whales in certain areas Therefore, NMFS considers that the in cooperation with NMFS. The and times of the year; (4) the use of density estimates, including the data components of the ICMP Plan that were MMOs/lookouts to conduct aerial and upon which those estimates are based considered and incorporated into the vessel-based surveys; and (5) annual and the manner in which those are final rules include: monitoring reports and comprehensive collected and used, has already gone • A requirement to monitor Navy reports to provide insights of impacts to through an independent review process. training exercises, particularly those marine mammals. Comment 3: The Commission involving underwater detonations, for NMFS has evaluated the effectiveness recommends that NMFS require the compliance with the terms and of the measures and has concluded they Navy to revise its explosive ordnance conditions of ESA Section 7 will achieve the least practicable analysis to provide a more realistic consultations or MMPA authorizations; adverse impact on the affected marine assessment of potential occurrences and • A requirement to minimize mammal species or stocks and their outcomes of explosions. The exposure of protected species from habitat. For example, operations will be Commission states that the Navy sound pressure levels from underwater suspended if trained lookouts and/or analyzes the effects of infrequent detonations that result in harassment; MMOs detect marine mammals within explosive events by assuming that those • A requirement to collect data to the vicinity of the exercise, thereby events will be distributed evenly over support estimating the number of preventing marine mammal injury or four seasons, resulting in fractional individuals exposed to sound levels mortality (use of specified exclusion quarterly totals. The Commission points above current regulatory thresholds; zones). In addition, prior to conducting out that these discrete events either • A requirement to assess the efficacy training activities involving underwater occur or they do not; they cannot occur of the Navy’s current marine species explosive detonation, the Navy will be in fractions. For that reason, the mitigation; required to carry out monitoring to Commission states that it does not • A requirement to document trends make sure that the safety zones are clear believe that assessing the effect of a 0.25 in species distribution and abundance of marine mammals, and then during or 0.5 event per season provides a in Navy training areas through the exercise when feasible. These realistic range of likely outcomes monitoring efforts; monitoring and mitigation measures because neither the events, nor the • A requirement to compile data that will decrease the number of marine densities of marine mammals may be would improve the Navy and NMFS’ mammals exposed to underwater evenly distributed over those seasons. knowledge of the potential behavioral explosions and exposure to intense Response: NMFS agrees with the and physiological effects to marine sounds from the detonations. Commission that the Navy’s training species from underwater detonations. Over the course of the 5-year rule, activities, though infrequent, do not The ICMP Plan will be used both as: NMFS will evaluate the Navy’s training occur in fractions. However, since (1) A planning tool to focus Navy activities annually to validate the scheduling of these training events is monitoring priorities (pursuant to ESA/ effectiveness of the measures. NMFS determined by a number of factors, not MMPA requirements) across Navy will, through the established adaptive the least of which includes weather Range Complexes and Exercises; and (2) management process, work with the conditions, current surge levels and an adaptive management tool, through Navy to determine whether additional international events, and requirements the consolidation and analysis of the mitigation and monitoring measures are of the Fleet Response Training Plan, it Navy’s monitoring and watchstander necessary. In addition, with the is impossible to plan these discrete (lookout) data, as well as new implementation of the ICMP Plan by the events for the future 5 years in advance. information from other Navy programs end of 2009, and the planned Therefore, NMFS believes that by (e.g., research and development), and Monitoring Workshop in 2011, NMFS assuming that these training activities newly published non-Navy information. will work with the Navy to further are evenly distributed over four seasons The ICMP Plan is described in the improve its monitoring and mitigation brings a more realistic view in analyzing Navy’s EIS and LOA application. plans for its future activities. the impacts over the years. Comment 5: The Commission Comment 6: The Commission requests recommends that NMFS require the that NMFS reconcile the discrepancy Monitoring Navy to develop and implement a plan between proposed §§ 218.24(e)(3)(i) and Comment 4: The Commission to evaluate the effectiveness of 218.24(e)(3)(iii) on the use of marine recommends that NMFS require the monitoring and mitigation measures mammal observers which require the Navy to complete its Integrated before beginning or in conjunction with Navy to specify the circumstances under Comprehensive Monitoring Program operations covered by the proposed which marine mammal observers would plan and make the ICMP Plan available incidental take authorization. not be required aboard Navy platforms. to the Commission and other interested Response: NMFS has been working Response: In the proposed rule parties for review prior to its with the Navy throughout the § 218.24(e)(3)(i) states ‘‘Marine mammal implementation. rulemaking process to develop a series observers (MMOs) shall be placed on a Response: The Navy continues to of mitigation, monitoring, and reporting Navy platform during the exercises’’ and develop the ICMP Plan and will protocols. These mitigation, monitoring the proposed rule § 218.24(e)(3)(iii) distribute it to the Commission and and reporting measures include, but are states ‘‘MMOs shall not be placed

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aboard Navy platforms for every Navy Mitigation marine mammal would be taken. As training event or major exercise, but Comment 8: The Commission explained in this rulemaking, NMFS during specifically identified recommends that NMFS require the does not believe species other than opportunities for data collection efforts. Navy to suspend an activity if a marine those authorized to be taken will occur The events selected for MMO mammal is seriously injured or killed in the proposed training area because participation shall take into account and the injury or death could be they are extralimital and rare; thus, it is safety, logistics, and operational associated with the activity. very unlikely the Navy will need to concerns.’’ Subsequently, the injury or death suspend activities for species not The language has been revised in should be investigated to determine the covered by these regulations and future § 218.24(c)(3)(i) to read as follows: LOAs. cause, assess the full impact of the ‘‘Marine mammal observers (MMOs) activity, and determine how the activity who are selected for aerial or vessel Miscellaneous Issues should be modified to avoid future surveys shall be placed on a Navy Comment 10: The Commission platform during one of the explosives injuries or deaths. recommends that NMFS work with the Response: Though NMFS largely exercises’’ to make the statement clear. Navy to develop a database for storing Regarding the Commission’s request agrees with the Commission, it should original records of Navy interactions to specify the circumstances under be noted that without detailed with marine mammals. which marine mammal observers would examination by an expert, it is usually Response: The Navy is required to not be required aboard Navy platforms, not feasible to determine the cause of document all marine mammal sightings the Navy states that MMO deployment injury or mortality when an injured or through aerial or vessel based survey by will be based on a number of factors, the dead marine mammal is sighted in the MMOs or Navy lookouts/watchstanders. first of which will be to support the data field. Therefore, NMFS has required in Those records will be used to determine needs of the Cherry Point Monitoring its final rule that if there is clear potential Navy interactions with marine Plan and ICMP. MMO efforts should be evidence that a marine mammal is mammals and to assess the impacts on focused on monitoring the types of injured or killed as a result of the marine mammals that may have resulted events, in the time and place, needed to proposed Navy training activities (e.g., from the Navy’s training activities. support the overall goals of the Cherry instances in which it is clear that Currently there is no plan to develop a point Monitoring Plan and ICMP. Next, munitions explosions caused the injury database for storing original records of MMOs will be deployed when safe to do or death) the Naval activities shall be Navy interactions with marine so and if practicable. Many factors will immediately suspended and the mammals due to limited resources. contribute to a decision to place MMOs situation immediately reported by the Nevertheless, NMFS will consider the on Navy platforms, including logistics participating unit to the Officer in Commission’s recommendation when and MMO safety. MMOs will not be Charge of the Exercise (OCE), who will adequate resources are available to deployed on an exercise if it could follow Navy procedures for reporting undertake such efforts. result in a hazard to the MMO or the incident to NMFS through the Comment 11: The NRDC commented exercise participants or an exercise Navy’s chain-of-command. on the proposed rule with its earlier where placing MMOs onboard Navy For any other sighting of injured or comments on the NMFS’ proposed rule platforms would not be practicable. An dead marine mammals in the vicinity of for the Navy’s Atlantic Fleet Active example of an exercise which may not any Navy training exercises utilizing Sonar Training (AFAST) and the Navy’s be practicable for MMO deployment underwater explosive detonations for AFAST DEIS. Specifically, the NRDC would be Air to Surface MISSILEX which the cause of injury or mortality states that neither NMFS in its proposed where the Navy platform is a helicopter cannot be immediately determined, the rule nor the Navy in its EIS offers with no available space for an MMO. Navy personnel will ensure that NMFS sufficient measures to mitigate the Comment 7: The Commission requests (regional stranding coordinator) is harmful impacts of high intensity sonar. that NMFS describe, or require the Navy notified immediately (or as soon as The NRDC further states that NMFS and to describe, the alternative measures operational security allows). The Navy the Navy’s analysis substantially that the Navy would implement to will provide NMFS with species or understates the potential effects of sonar monitor for the presence of marine description of the animal(s), the on marine wildlife. mammals when marine mammal condition of the animal(s) (including Response: NRDC’s comments are observers are not being used. carcass condition if the animal is dead), inapplicable to the proposed Navy Response: Regardless of whether location, time of first discovery, training activities at the Cherry Point MMOs are present, the shipboard observed behaviors (if alive), and photo Range Complex. The Navy does not lookouts would implement the or video (if available). intend, as part of its proposed action, to mitigation measures identified in this Comment 9: The Commission conduct training with MFAS, HFAS, rule. Shipboard lookouts are trained to recommends that NMFS require the and Improved Extended Echo Ranging detect objects in the water, which Navy to halt an activity if a marine (IEER)/Advanced Extended Echo includes items ranging from ships, to mammal species other than those Ranging (AEER). The Navy’s request for periscopes, to marine life. Lookout covered by the authorization is observed a LOA for sonar related training was training includes those measures listed within the operating area. addressed in the Final Rule and LOA for in the Personal Training section of the Response: The final rule for the AFAST which was issued by NMFS on mitigation measures. The specific proposed Cherry Point Range Complex January 22, 2009, and published in the measures used by lookouts to monitor training activities prohibits the take of Federal Register on February 19, 2009 for the presence of marine mammals are marine mammals other than those (74 FR 4844). identified in the Navy’s Operating covered by the authorization. Procedures and Collision Avoidance Nevertheless, if a marine mammal is Estimated Take of Marine Mammals measures, as well as those measures sighted in the operating area outside the As mentioned previously, with identified for specific at-sea training zone of influence where it could be respect to the MMPA, NMFS’ effects events in the Monitoring section of this harassed, NMFS will not require the assessments serve three primary document. Navy to suspend an activity since no purposes: (1) To prescribe the

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permissible methods of taking (i.e., requirements pertaining to monitoring modeling methods in the section of the Level B Harassment (behavioral and reporting. proposed rule. harassment), Level A Harassment In the Estimated Take of Marine Exposure of marine mammals based (injury), or mortality, including an Mammals section of the proposed rule, on the Navy’s modeling shows that only identification of the number and types NMFS related the potential effects to two individuals of Atlantic spotted of take that could occur by Level A or marine mammals from underwater dolphins would be taken by Level B B harassment or mortality)) and to detonation of explosives to the MMPA harassment due to the low levels of the prescribe other means of effecting the regulatory definitions of Level A and proposed training activities. However, least practicable adverse impact on such Level B Harassment and assessed the after further evaluation, NMFS species or stock and its habitat (i.e., effects to marine mammals that could concluded that because of the relatively mitigation); (2) to determine whether result from the specific activities that high abundance of several species in the the specified activity will have a the Navy intends to conduct. These action area (Clymene dolphins, pilot negligible impact on the affected species analyses are discussed in the proposed whales, minke whales, pantropical or stocks of marine mammals (based on rule (74 FR 11052; pages 11070–11071) spotted dolphins, Kogia sp., and several the likelihood that the activity will and have not changed. species of beaked whales (Waring et al., adversely affect the species or stock 2008) and because some of these species Take Calculations through effects on annual rates of tend to aggregate in relatively large recruitment or survival); (3) to An overview of the Navy’s modeling groups, there is a reasonable probability determine whether the specified activity methods to determine the number of that these species could be taken by will have an unmitigable adverse impact exposures of MMPA-protected species Level B behavioral harassment. on the availability of the species or to sound likely to result in mortality, Therefore, NMFS has included these stock(s) for subsistence uses (however, Level A harassment (injury), or Level B species in our take estimates for the 5- there are no subsistence communities in harassment is provided in the Federal year regulations. Revised estimates of the Cherry Point Range Complex; thus, Register notice for the proposed rule (74 potential takes from the proposed there would be no effect on any FR 11052; pages 11070–11071). No Cherry Point Range Complex training subsistence user); and (4) to prescribe changes have been made to the activities are listed in Table 4.

TABLE 4—SUMMARY OF POTENTIAL TAKES FROM EXPLOSIVE ORDNANCE (PER YEAR) FOR MARINE MAMMALS IN THE CHERRY POINT RANGE COMPLEX

Level B Level A Species harassment harassment Mortality

Minke whale ...... 3 0 0 Beaked whales ...... 20 0 0 Kogia sp ...... 3 0 0 Pilot whale ...... 20 0 0 Atlantic spotted dolphin ...... 20 0 0 Bottlenose dolphin ...... 30 0 0 Clymene dolphin ...... 30 0 0 Common dolphin ...... 20 0 0 Striped dolphin ...... 20 0 0 Pantropical spotted dolphin ...... 20 0 0 Risso’s dolphin ...... 30 0 0 Atlantic white-sided dolphin ...... 20 0 0 Spinner dolphin ...... 3 0 0 Fraser’s dolphin ...... 3 0 0 Melon-headed whale ...... 3 0 0 Pygmy killer whale ...... 3 0 0 Killer whale ...... 3 0 0

Effects on Marine Mammal Habitat continuous over a long duration in one source of detonation could be injured, NMFS’ Cherry Point Complex area, the effects of underwater killed, or disturbed by the impulsive proposed rule included a section that detonation and its associated sound are sound and could leave the area addressed the effects of the Navy’s generally considered to have a less temporarily. Continental Shelf Inc. activities on marine mammal habitat (74 severe impact on marine mammal (2004) summarized a few studies FR 11052, page 11071). Marine mammal habitat than the physical alteration of conducted to determine effects habitat and prey species could be the habitat. Marine mammals may be associated with removal of offshore affected by the explosive ordnance temporarily displaced from areas where structures (e.g., oil rigs) in the Gulf of testing and the sound generated by such Navy training is occurring, but the area Mexico. Their findings revealed that at activities. Based on the analysis will be utilized again after the activities very close range, underwater explosions contained in the Navy’s FEIS and the have ceased. are lethal to most fish species regardless information below, NMFS has Effects on Food Resources of size, shape, or internal anatomy. In determined that the Cherry Point Range most situations, cause of death in fish Complex training activities will not There are currently no well- has been massive organ and tissue have adverse or long-term impacts on established thresholds for estimating damage and internal bleeding. At longer marine mammal habitat or prey species. effects to fish from explosives other than range, species with gas-filled Unless the sound source or explosive mortality models. Fish that are located swimbladders (e.g., snapper, cod, and detonation is stationary and/or in the water column, in proximity to the striped bass) are more susceptible than

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those without swimbladders (e.g., level effects). An estimate of the number Range Complex Study Area and the flounders, eels). of Level B harassment takes alone, is not implementation of monitoring and Studies also suggest that larger fish enough information on which to base an mitigation measures. Moreover, NMFS are generally less susceptible to death or impact determination. does not expect animals to experience injury than small fish. Moreover, In addition to considering estimates of repeated exposures to the same sound elongated forms that are round in cross the number of marine mammals that source as animals will likely move away section are less at risk than deep-bodied might be ‘‘taken’’ through behavioral from the source after being exposed. In forms. Orientation of fish relative to the harassment, NMFS must consider other addition, these isolated exposures, shock wave may also affect the extent of factors, such as the likely nature of any when received at distances of Level B injury. Open water pelagic fish (e.g., responses (their intensity, duration, behavioral harassment (i.e., 177 dB re 1 mackerel) seem to be less affected than etc.), the context of any responses microPa2-sec), are expected to cause reef fishes. The results of most studies (critical reproductive time or location, brief startle reactions or short-term are dependent upon specific biological, migration, etc.), as well as the number behavioral modification by the animals. environmental, explosive, and data and nature of estimated Level A takes, These brief reactions and behavioral recording factors. the number of estimated mortalities, and changes are expected to disappear when The huge variation in fish effects on habitat. the exposures cease. Therefore, these populations, including numbers, The Navy’s specified activities have levels of received impulse noise from species, sizes, and orientation and range been described based on best estimates detonation are not expected to affect from the detonation point, makes it very of the planned detonation events the annual rates or recruitment or survival. difficult to accurately predict mortalities Navy would conduct for the proposed at any specific site of detonation. A total Cherry Point Range Complex training TTS of 200 hours explosive detonation activities. The events are generally short NMFS and the Navy have estimated events, with each event lasting for 1–12 in duration, including a total of 14, 1- that individuals of some species of hours, are widely dispersed in the large hour events and 14, 8–12-hour events. marine mammals may sustain some Cherry Point study area over the seasons Taking the above into account, along level of temporarily threshold shift TTS for each year. Most fish species with the fact that NMFS anticipates no from underwater detonations. TTS can experience a large number of natural mortalities and injuries to result from last from a few minutes to days, be of mortalities, especially during early life- the action, the fact that there are no varying degree, and occur across various stages, and any small level of mortality specific areas of reproductive frequency bandwidths. The TTS caused by the Cherry Point Range importance for marine mammals sustained by an animal is primarily Complex training exercises involving recognized within the Cherry Point classified by three characteristics: explosives will likely be insignificant to Range Complex study area, the sections • Frequency—Available data (of mid- the population as a whole. discussed below, and dependent upon frequency hearing specialists exposed to Therefore, potential impacts to marine the implementation of the proposed mid to high frequency sounds—Southall mammal food resources within the mitigation measures, NMFS has et al., 2007) suggest that most TTS Cherry Point Range Complex are determined that Navy training exercises occurs in the frequency range of the expected to be minimal given both the utilizing underwater detonations will source up to one octave higher than the very geographic and spatially limited have a negligible impact on the affected source (with the maximum TTS at 1⁄2 scope of most Navy at-sea activities marine mammal species and stocks octave above). including underwater detonations, and present in the Cherry Point Range • Degree of the shift (i.e., how many the high biological productivity of these Complex Study Area. dB is the sensitivity of the hearing resources. No short or long term effects NMFS’ analysis of potential reduced by)—generally, both the degree to marine mammal food resources from behavioral harassment, temporary of TTS and the duration of TTS will be Navy activities are anticipated within threshold shifts, permanent threshold greater if the marine mammal is exposed the Cherry Point Range Complex. shifts, injury, and mortality to marine to a higher level of energy (which would mammals as a result of the Cherry Point occur when the peak dB level is higher Analysis and Negligible Impact Range Complex training activities was or the duration is longer). Since the Determination provided in the proposed rule (74 FR impulse from detonation is extremely Pursuant to NMFS’ regulations 11052, pages 11056–11066) and is brief, an animal would have to approach implementing the MMPA, an applicant described in more detail below. very close to the detonation site to is required to estimate the number of increase the received SEL. The Behavioral Harassment animals that will be ‘‘taken’’ by the threshold for the onset of TTS for specified activities (i.e., takes by The Navy plans a total of 14 detonations is a dual criteria: 182 dB re harassment only, or takes by MISSILEX training events (each lasting 1 microPa2-sec or 23 psi, which might harassment, injury, and/or death). This for 1 hour), 20 MINEX training events be received at distances from 314–1,091 estimate informs the analysis that NMFS (each lasting for 8 hours), and 2 FIREX m from the centers of detonation based must perform to determine whether the training events (each lasting for 12 on the types of NEW involved to receive activity will have a ‘‘negligible impact’’ hours) annually. The total training the SEL that causes TTS compared to on the species or stock. Level B exercises proposed by the Navy in the similar source level with longer (behavioral) harassment occurs at the Cherry Point Range Complex amount to durations (such as sonar signals). level of the individual(s) and does not under 200 hours per year. These • Duration of TTS (Recovery time)— assume any resulting population-level detonation events are widely dispersed Of all TTS laboratory studies, some consequences, though there are known throughout several of the designated using exposures of almost an hour in avenues through which behavioral sites within the Cherry Point Range duration or up to 217 SEL, almost all disturbance of individuals can result in Complex Study Area. The probability recovered within 1 day (or less, often in population-level effects. A negligible that detonation events will overlap in minutes), though in one study (Finneran impact finding is based on the lack of time and space with marine mammals is et al., 2007), recovery took 4 days. likely adverse effects on annual rates of low, particularly given the densities of • Although the degree of TTS recruitment or survival (i.e., population- marine mammals in the Cherry Point depends on the received noise levels

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and exposure time, all studies show that Atlantic white-sided dolphins, 3 stocks for subsistence use, since there TTS is reversible and animals’ spinner dolphins, 3 Fraser’s dolphins, 3 are no such uses in the specified area. sensitivity is expected to recover fully melon-headed whales, 3 pygmy killer ESA in minutes to hours. Therefore, NMFS whales, and 3 killer whales could be expects that TTS would not affect affected by Level B harassment (TTS There are six marine mammal species, annual rates of recruitment or survival. and sub-TTS) per year as a result of the three sea turtle species, and a fish Acoustic Masking or Communication proposed Cherry Point Range Complex species that are listed as endangered Impairment training activities. These numbers under the ESA with confirmed or represent approximately 0.09%, 0.76%, possible occurrence in the study area As discussed above, it is also possible 0.06%, 0.04%, 0.04%, 0.02%, 0.02%, and could be impacted by the proposed that anthropogenic sound could result 0.45%, 0.15%, 0.03%, and 0.57% of action: Humpback whale, North Atlantic in masking of marine mammal minke whales, dwarf or pygmy sperm right whale, blue whale, fin whale, sei communication and navigation signals. whales, pilot whales, Atlantic spotted whale, sperm whale, loggerhead sea However, masking only occurs during dolphins, bottlenose dolphins, common turtle, leatherback sea turtle, the Kemp’s the time of the signal (and potential dolphins, striped dolphins, pantropical ridley sea turtle, and the shortnose secondary arrivals of indirect rays), spotted dolphins, Risso’s dolphins, sturgeon. versus TTS, which occurs continuously Atlantic white-sided dolphins, and Pursuant to Section 7 of the ESA, the for its duration. Impulse sounds from beaked whales, respectively in the Navy has consulted with NMFS on this underwater detonation are extremely vicinity of the proposed Cherry Point action. NMFS has also consulted brief and the majority of most animals’ Range Complex Study Area (calculation internally on the issuance of regulations vocalizations would not be masked. based on NMFS 2007 U.S. Atlantic and under section 101(a)(5)(A) of the MMPA Therefore, masking effects from Gulf of Mexico Marine Mammal Stock for this activity. The Biological Opinion underwater detonation are expected to Assessment). Although the population concludes that the proposed training be minimal and unlikely. If masking or estimates of Clymene dolphins, spinner activities are likely to adversely affect communication impairment were to dolphins, Fraser’s dolphins, melon- occur briefly, it would be in the but are not likely to jeopardize the headed whales, pygmy killer whales, continued existence of these threatened frequency ranges below 100 Hz, which and killer whales are unknown in the overlaps with some mysticete and endangered species under NMFS proposed action area, NMFS considers jurisdiction. vocalizations; however, it would likely the take of 30 individuals of Clymene not mask the entirety of any particular dolphins and 3 individuals each of NEPA vocalization or communication series other 5 species by Level B harassment because of the short impulse. NMFS participated as a cooperating would have a negligible impact to these agency on the Navy’s Final PTS, Injury, or Mortality species because most of their population Environmental Impact Statement (FEIS) The Navy’s model estimated that no exists beyond the project area and for the Cherry Point Range Complex. marine mammal would experience 50 because they are widely distributed NMFS subsequently adopted the Navy’s percent tympanic membrane rupture or species in the North Atlantic (Jefferson EIS for the purpose of complying with slight lung injury (Level A harassment) et al., 1993; Reeves et al., 2002). the MMPA. No Level A take or mortality is as a result of the training activities Determination utilizing underwater detonation in the expected as a result of the proposed Cherry Point Range Complex Study Cherry Point Range Complex training Based on the analysis contained Area. For underwater detonations, the activities. herein and in the proposed rule (and animals have to be within pre-defined Additionally, these aforementioned other related documents) of the likely zones of influence (ZOI) to experience take estimates do not consider the effects of the specified activity on Level A harassment. The injury zones implementation of mitigation measures. marine mammals and their habitat and vary from 0.04 km2 to 0.185 km2 (or at With the implementation of mitigation dependent upon the implementation of distances between 113 m to 243 m from and monitoring measures, NMFS the mitigation measures, NMFS finds the center of detonation) depending on expects that the takes would be further that the total taking from Navy Cherry the types of munitions used and the reduced. Coupled with the fact that Point Range Complex training exercises season of the action. NMFS believes it these impacts will likely not occur in utilizing underwater explosives over the is unlikely that any marine mammal areas and times critical to reproduction, 5 year period will have a negligible could be undetected by lookouts/ NMFS has determined that the total impact on the affected species or stocks watchstanders or MMOs within such a taking over the 5-year period of the and will not result in an unmitigable small area during pre-testing surveys. regulations and subsequent LOAs from adverse impact on the availability of As discussed previously, the Navy plans the Navy’s Cherry Point Range Complex marine mammal species or stocks for to utilize aerial or vessel surveys to training activities will have a negligible taking for subsistence uses because no detect marine mammals for mitigation impact on the marine mammal species subsistence uses exist in the Cherry implementation and indicated that they and stocks present in the Cherry Point Point Range Complex study area. NMFS are capable of effectively monitoring Range Complex Study Area. has issued regulations for these exercises that prescribe the means of safety zones. Subsistence Harvest of Marine Based on these assessments, NMFS effecting the least practicable adverse Mammals determined that approximately 3 minke impact on marine mammals and their whales, 3 dwarf or pygmy sperm NMFS has determined that the habitat and set forth requirements whales, 20 beaked whales, 20 pilot issuance of 5-year regulations and pertaining to the monitoring and whales, 20 Atlantic spotted dolphins, 30 subsequent LOAs (as warranted) for reporting of that taking. bottlenose dolphins, 30 Clymene Navy training exercises in the Cherry Classification dolphins, 20 common dolphins, 20 Point Range Complex would not have striped dolphins, 20 pantropical spotted an unmitigable adverse impact on the This action does not contain a dolphins, 30 Risso’s dolphins, 20 availability of the affected species or collection of information requirement

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for purposes of the Paperwork (ARG) currently operate in, or need to the 30-day delay of the effective date of Reduction Act. quickly deploy to high risk geographic the Final Rule will allow Navy to The Regulatory Flexibility Act (RFA) areas. In addition, a Strike Group/ARG finalize operational procedures to requires Federal agencies to prepare an is built around an aircraft carrier with ensure compliance with required analysis of a rule’s impact on small typically 5,300 personnel on board and mitigation, monitoring, and reporting entities whenever the agency is required an amphibious assault ship that carries requirements, and have MMPA to publish a notice of proposed a Marine Corps Expeditionary Unit, so authorization in place prior to Navy’s rulemaking. However, a Federal agency failure to adequately train risks vital June 2009 exercise. may certify, pursuant to 5 U.S.C. 605(b), thousands of lives. that the action will not have a The training necessary to protect List of Subjects in 50 CFR Part 218 significant economic impact on a American interests and the lives of Exports, Fish, Imports, Incidental substantial number of small entities. sailors and marines is complex. It take, Indians, Labeling, Marine The Chief Counsel for Regulation of the involves ensuring the warfighter can mammals, Navy, Penalties, Reporting Department of Commerce certified at the accurately identify potential threats in a and recordkeeping requirements, Proposed Rule stage. The Navy is the variety of marine environments and Seafood, Transportation. entity that will be affected by this conditions, and it involves the Dated: June 5, 2009. rulemaking, not a small governmental coordination of different vessels and Samuel D. Rauch III, jurisdiction, small organization or small aircraft so that the group’s capabilities business, as defined by the RFA. This are employed in the most tactically Deputy Assistant Administrator for Regulatory Programs, National Marine rulemaking authorizes the take of effective manner. As with any Fisheries Service. marine mammals incidental to a complicated coordinated effort, this ■ specified activity. The specified activity challenge requires routine practice, as For the reasons set forth in the defined in the final rule includes the these skills are perishable. preamble, 50 CFR part 218 is amended use of underwater detonations, which In 10 U.S.C. 5062, Congress mandated to read as follows: are only used by the U.S. military, that the Chief of Naval Operations PART 218—REGULATIONS during training activities that are only (CNO) organize, train, and equip all GOVERNING THE TAKING AND conducted by the U.S. Navy. Naval forces for combat. In response, the IMPORTING OF MARINE MAMMALS Additionally, any requirements imposed Fleet Response Training Plan (FRTP) is by a Letter of Authorization issued a major initiative designed to ensure ■ 1. The authority citation for part 218 pursuant to these regulations, and any Naval units receive required training continues to read as follows: monitoring or reporting requirements before they deploy. The FRTP is an Authority: 16 U.S.C. 1361 et seq. arduous sequential training cycle in imposed by these regulations, will be ■ 2. Subpart C is added to part 218 to which unit level training (ULT) and applicable only to the Navy. Because read as follows: this action, if adopted, would directly combat certification is followed by affect the Navy and not a small entity, major exercises that bring together NMFS concludes the action would not various warfare components so they Subpart C—Taking Marine Mammals result in a significant economic impact have the opportunity to practice as an Incidental to U.S. Navy Training in the on a substantial number of small integrated whole and attain Cherry Point Range Complex entities. certification. Accordingly, any delay in Sec. The Assistant Administrator for coordinated training creates a 218.20 Specified activity and specified Fisheries has determined that there is significant and unreasonable risk which geographical area and effective dates. good cause under the Administrative could result in a unit’s and/or Strike 218.21 Permissible methods of taking. 218.22 Prohibitions. Procedure Act (5 U.S.C. 553(d)(3)) to Group’s inability to train, certify and 218.23 Mitigation. waive the 30-day delay in effective date report as directed to an overseas theater 218.24 Requirements for monitoring and of the measures contained in the final of operations. reporting. rule. The U.S. Navy has a compelling A deployment certification exercise is 218.25 Applications for Letters of national policy reason to continue currently scheduled for June 2009 that Authorization. military readiness activities without will encompass areas of the Cherry 218.26 Letters of Authorization. interruption in its East Coast Operating Point Range Complex. Lack of the 218.27 Renewal of Letters of Authorization Areas, i.e., the Cherry Point Range appropriate environmental regulatory and adaptive management. Complex. As discussed below, coverage for even a single day imperils 218.28 Modifications to Letters of Authorization. suspension/interruption of the Navy’s completion of this exercise, and risks ability to train, for even a small number deployment certification. Essential ULT Subpart C—Taking Marine Mammals of days, disrupts vital sequential also occurs in these OPAREAs. There is Incidental to U.S. Navy Training in the training and certification processes limited unit level underway (at-sea) Cherry Point Range Complex essential to our national security. time available in the FRTP to adjust the In order to meet its national security training dates. These ULT training § 218.20 Specified activity and specified objectives, the Navy must continually periods are driven by sequential geographical area and effective dates. maintain its ability to operate in a certification processes for both inport (a) Regulations in this subpart apply challenging at-sea environment, conduct and at-sea training. Scheduling only to the U.S. Navy for the taking of military operations, control strategic constraints are further complicated by marine mammals that occurs in the area maritime transit routes and the availability of Afloat Training outlined in paragraph (b) of this section international straits, and protect sea Groups (ATGs) that are responsible for and that occur incidental to the lines of communications that support training all individual units. ATGs have activities described in paragraph (c) of international commerce. To meet these a limited number of trainers available at this section. objectives, the Navy must continually any given time, and their schedules (b) The taking of marine mammals by train. Timely training is critical because must also be de-conflicted, the Navy is only authorized if it occurs individual Navy units and Strike compounding the problem if training within the Cherry Point Range Complex Groups/Amphibious Readiness Groups schedules are not adhered to. Waiver of Operation Area (OPAREA), which is

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located along the southern east coast of (1) Level B Harassment: this Subpart or a Letter of Authorization the U.S., as stated in the Navy’s letter of (i) Bottlenose dolphin (Tursiops issued under §§ 216.106 of this chapter authorization application. The truncatus)—150 (an average of 30 and 218.26. coordinates of the Cherry Point Range annually); Complex OPAREA are: 35°30′ N, 75°25′ (ii) Pantropical spotted dolphin § 218.23 Mitigation. W; 34°14′ N, 73°57′ W; 32°12′ N, 76°49′ (Stenella attenuata)—100 (an average of (a) When conducting training W; 32°20′ N, 77°20′ W; 33°10′ N, 77°31′ 20 annually); activities identified in § 218.20(c), the W; and 34°23′30″ N, 77°30′ W; then (iii) Clymene dolphin (S. clymene)— mitigation measures contained in the along the 3 nm from and parallel to the 150 (an average of 30 annually); Letters of Authorization issued under shoreline. (iv) Atlantic spotted dolphin (S. §§ 216.106 of this chapter and 218.26 (c) The taking of marine mammals by frontalis)—100 (an average of 20 must be implemented. These mitigation the Navy is only authorized if it occurs annually); measures include, but are not limited to: incidental to the following activities (v) Striped dolphin (S. (1) General Maritime Measures: within the designated amounts of use: coeruleoalba)—100 (an average of 20 (i) Personnel Training—Lookouts: (1) The detonation of the underwater annually); (A) All bridge personnel, explosives indicated in paragraph (vi) Spinner dolphin (S. Commanding Officers, Executive (c)(1)(i) of this section conducted as part longirostris)—15 (an average of 3 Officers, officers standing watch on the of the training events indicated in annually): bridge, maritime patrol aircraft aircrews, paragraph (c)(1)(ii) of this section: (vii) Risso’s dolphin (Grampus and Mine Warfare (MIW) helicopter (i) Underwater Explosives: griseus)—150 (an average of 30 crews shall complete Marine Species (A) AGM–114 (Hellfire missile); annually); Awareness Training (MSAT). (B) Tube-launched Optically tracked (viii) Common dolphin (Delphinus (B) Navy lookouts shall undertake Wire-guided (TOW) missile; delphis)—100 (an average of 20 extensive training to qualify as a (C) Mine Neutralization (20 lb NEW annually); watchstander in accordance with the charges); and (ix) Atlantic white-sided dolphin Lookout Training Handbook (D) 5″ Naval Gunfire. (Lagenorhynchus acutus)—100 (an (NAVEDTRA 12968–D). (ii) Training Exercises: average of 20 annually); (C) Lookout training shall include on- (A) Mine Neutralization (20 lb NEW (x) Pilot whales (Globicephala sp.)— the-job instruction under the charges)—up to 100 exercises over the 100 (an average of 20 annually); supervision of a qualified, experienced course of 5 years (an average of 20 per (xi) Dwarf or pygmy sperm whales watchstander. Following successful year); (Kogia sp.)—15 (an average of 3 completion of this supervised training (B) Missile Exercise (MISSILEX) (Air- annually); period, lookouts shall complete the (xii) Beaked whales—100 (an average to-Surface; Hellfire missile)—up to 40 Personal Qualification Standard of 20 annually); exercises over the course of 5 years (an Program, certifying that they have (xiii) Fraser’s dolphin (Lagenodelphis average of 8 per year); demonstrated the necessary skills (such hosei)—15 (an average of 3 annually); as detection and reporting of partially (C) Missile Exercise (MISSILEX) (Air- (xiv) Melon-headed whale to-Surface; TOW)—up to 40 exercises submerged objects). (Peponocephala electra)—15 (an (D) Lookouts shall be trained in the over the course of 5 years (an average of average of 3 annually); 8 per year); and most effective means to ensure quick (xv) Pygmy killer whale (Feresa and effective communication within the (D) FIREX with IMPASS—up to 10 attenuate)—15 (an average of 3 exercises over the course of 5 years (an command structure to facilitate annually); implementation of protective measures average of 2 per year). (xvi) Killer whale (Orcinus orca)—15 (2) [Reserved] if marine species are spotted. (an average of 3 annually); (E) Surface lookouts shall scan the (d) Regulations are effective [June 8, (xvii) Minke whales (Balaenoptera water from the ship to the horizon and 2009] and are applicable to the Navy on acutorostrata)—15 (an average of 3 be responsible for all contacts in their June 5, 2009 through June 4, 2014. annually). sector. In searching the assigned sector, (2) [Reserved] § 218.21 Permissible methods of taking. the lookout shall always start at the (a) Under Letters of Authorization § 218.22 Prohibitions. forward part of the sector and search aft issued pursuant to §§ 216.106 of this Notwithstanding takings (toward the back). To search and scan, chapter and 218.26, the Holder of the contemplated in § 218.21 and the lookout shall hold the binoculars Letter of Authorization may authorized by a Letter of Authorization steady so the horizon is in the top third incidentally, but not intentionally, take issued under §§ 216.106 of this chapter of the field of vision and direct the eyes marine mammals within the area and 218.26, no person in connection just below the horizon. The lookout described in § 218.20(b), provided the with the activities described in § 218.20 shall scan for approximately five activity is in compliance with all terms, may: seconds in as many small steps as conditions, and requirements of this (a) Take any marine mammal not possible across the field seen through Subpart and the appropriate Letter of specified in § 218.21(c); the binoculars. They shall search the Authorization. (b) Take any marine mammal entire sector in approximately five- (b) The activities identified in specified in § 218.21(c) other than by degree steps, pausing between steps for § 218.20(c) must be conducted in a incidental take as specified in approximately five seconds to scan the manner that minimizes, to the greatest § 218.21(b)(1) and (2); field of view. At the end of the sector extent practicable, any adverse impacts (c) Take a marine mammal specified search, the glasses shall be lowered to on marine mammals and their habitat. in § 218.21(c) if such taking results in allow the eyes to rest for a few seconds, (c) The incidental take of marine more than a negligible impact on the and then the lookout shall search back mammals under the activities identified species or stocks of such marine across the sector with the naked eye. in § 218.20(c) is limited to the following mammal; or (F) At night, lookouts shall scan the species, by the indicated method of take (d) Violate, or fail to comply with, the horizon in a series of movements that and the indicated number of times: terms, conditions, and requirements of would allow their eyes to come to

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periodic rests as they scan the sector. approaching whales head-on. This noted) of the specified associated When visually searching at night, they requirement does not apply if a vessel’s reference points: shall look a little to one side and out of safety is threatened, such as when (1) South and East of Block Island (37 the corners of their eyes, paying change of course will create an km (20 NM) seaward of line between attention to the things on the outer imminent and serious threat to a person, 41–4.49° N. lat. 071–51.15° W. long. and edges of their field of vision. Lookouts vessel, or aircraft, and to the extent 41–18.58° N. lat. 070–50.23° W. long): shall also have night vision devices vessels are restricted in their ability to Sept-Oct and Mar-Apr. available for use. maneuver. Vessels shall take reasonable (2) New York/New Jersey (40–30.64° (ii) Operating Procedures and steps to alert other vessels in the N. lat. 073–57.76° W. long.): Sep–Oct Collision Avoidance: vicinity of the whale. and Feb-Apr. (A) Prior to major exercises, a Letter (I) Where feasible and consistent with (3) Delaware Bay (Philadelphia) (38– of Instruction, Mitigation Measures mission and safety, vessels shall avoid 52.13° N. lat. 075–1.93° W. long.): Oct– Message or Environmental Annex to the closing to within 200-yd (183 m) of Dec and Feb–Mar. Operational Order shall be issued to marine mammals other than whales (4) Chesapeake Bay (Hampton Roads further disseminate the personnel (whales addressed above). and Baltimore) (37–1.11° N. lat. 075– training requirement and general marine (J) Navy aircraft participating in 57.56° W. long.): Nov-Dec and Feb–Apr. species mitigation measures. exercises at sea shall conduct and (5) North Carolina (34–41.54° N. lat. (B) Commanding Officers shall make maintain, when operationally feasible 076–40.20° W. long.): Dec-Apr. use of marine species detection cues and safe, surveillance for marine species (6) South Carolina (33–11.84° N. lat. and information to limit interaction of concern as long as it does not violate 079–8.99° W. long. and 32–43.39° N. lat. with marine species to the maximum safety constraints or interfere with the 079–48.72° W. long.): Oct-Apr. extent possible consistent with safety of accomplishment of primary operational (B) During the months indicated in the ship. duties. Marine mammal detections shall paragraph (a)(3)(i)(A) of this section, (C) While underway, surface vessels be immediately reported to assigned Navy vessels shall practice increased shall have at least two lookouts with Aircraft Control Unit for further vigilance with respect to avoidance of binoculars; surfaced submarines shall dissemination to ships in the vicinity of vessel-whale interactions along the mid- have at least one lookout with the marine species as appropriate where Atlantic coast, including transits to and binoculars. Lookouts already posted for it is reasonable to conclude that the from any mid-Atlantic ports not safety of navigation and man-overboard course of the ship will likely result in specifically identified in paragraph precautions may be used to fill this a closing of the distance to the detected (a)(3)(i)(A) of this section. requirement. As part of their regular marine mammal. (C) All surface units transiting within duties, lookouts shall watch for and (K) All vessels shall maintain logs and 56 km (30 NM) of the coast in the mid- report to the OOD the presence of records documenting training Atlantic shall ensure at least two marine mammals. operations should they be required for watchstanders are posted, including at (D) Personnel on lookout shall employ event reconstruction purposes. Logs and least one lookout who has completed visual search procedures employing a records shall be kept for a period of 30 required MSAT training. scanning method in accordance with the days following completion of a major (D) Navy vessels shall not knowingly Lookout Training Handbook training exercise. approach any whale head on and shall (NAVEDTRA 12968–D). (2) Coordination and Reporting maneuver to keep at least 457 m (1,500 (E) After sunset and prior to sunrise, Requirements. (i) The Navy shall ft) away from any observed whale, lookouts shall employ Night Lookouts coordinate with the local NMFS consistent with vessel safety. Techniques in accordance with the Stranding Coordinator for any unusual (ii) Southeast Atlantic, Offshore of the Lookout Training Handbook marine mammal behavior and any Eastern United States—for the purposes (NAVEDTRA 12968–D). stranding, beached live/dead, or floating of the measures below (paragraphs (F) While in transit, naval vessels marine mammals that may occur at any (a)(3)(ii)(A) & (B) of this section), the shall be alert at all times, use extreme time during training activities or within ‘‘southeast’’ encompasses sea space caution, and proceed at a ‘‘safe speed’’ 24 hours after completion of training from Charleston, South Carolina, (the minimum speed at which mission activities. southward to Sebastian Inlet, Florida, goals or safety will not be compromised) (ii) The Navy shall follow internal and from the coast seaward to 148 km so that the vessel can take proper and chain of command reporting procedures (80 NM) from shore. North Atlantic right effective action to avoid a collision with as promulgated through Navy whale critical habitat is the area from any marine animal and can be stopped instructions and orders. 31–15° N. lat. to 30–15° N. lat. within a distance appropriate to the (3) Mitigation Measures Applicable to extending from the coast out to 28 km prevailing circumstances and Vessel Transit in the Mid-Atlantic (15 NM), and the area from 28–00° N. conditions. during North Atlantic Right Whale lat. to 30–15° N. lat. from the coast out (G) When marine mammals have been Migration: The mitigation measures to 9 km (5 NM). All mitigation measures sighted in the area, Navy vessels shall apply to all Navy vessel transits, described here that apply to the critical increase vigilance and implement including those vessels that would habitat apply from November 15—April measures to avoid collisions with transit to and from East Coast ports and 15 and also apply to an associated area marine mammals and avoid activities the Cherry Point OPAREA. of concern which extends 9 km (5 NM) that might result in close interaction of (i) Mid-Atlantic, Offshore of the seaward of the designated critical naval assets and marine mammals. Such Eastern United States: habitat boundaries. measures shall include changing speed (A) All Navy vessels are required to (A) Prior to transiting or training in and/or course direction and would be use extreme caution and operate at a the critical habitat or associated area of dictated by environmental and other slow, safe speed (at a speed that does concern (AAOC), ships shall contact conditions (e.g., safety or weather). not compromise safety of navigation) Fleet Area Control and Surveillance (H) Naval vessels shall maneuver to consistent with mission and safety Facility, Jacksonville, to obtain latest keep at least 500 yds (460 m) away from during the months indicated below and whale sighting and other information any observed whale and avoid within a 37 km (20 NM) arc (except as needed to make informed decisions

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regarding safe speed (the minimum (iii) Northeast Atlantic, Offshore of speed at which mission goals or safety speed at which mission goals or safety the Eastern United States: will not be compromised) so as to be will not be compromised) and path of (A) Prior to transiting the Great South able to avoid collisions with North intended movement. Subs shall contact Channel or Cape Cod Bay critical habitat Atlantic right whales and other marine Commander, Submarine Group Ten for areas, ships shall obtain the latest North mammals, and stop within a distance similar information. Atlantic right whale sightings and other appropriate to the circumstances and (B) The following specific mitigation information needed to make informed conditions. measures apply to activities occurring decisions regarding safe speed (the (3) Speed reductions (adjustments) are within the North Atlantic right whale minimum speed at which mission goals required when a whale is sighted by a critical habitat and an associated area of or safety will not be compromised). The vessel or when the vessel is within 9 km concern which extends 9 km (5 NM) Great South Channel critical habitat is (5 NM) of a reported new sighting less seaward of the designated critical defined by the following coordinates: than one week old. ° ° ° habitat boundaries: 41–00 N. lat., 69–05 W. long.; 41–45 (4) Ships transiting in the Cape Cod ° ° (1) When transiting within the critical N. lat, 69–45 W. long; 42–10 N. lat., Bay and Great South Channel critical ° ° ° habitat or associated area of concern, 68–31 W. long.; 41–38 N. lat., 68–13 habitats shall obtain information on vessels shall exercise extreme caution W. long. The Cape Cod Bay critical recent whale sightings in the vicinity of and proceed at a slow safe speed. The habitat is defined by the following the critical habitat. Any vessel operating ° ° speed shall be the slowest safe speed coordinates: 42–04.8 N. lat., 70–10 W. in the vicinity of a North Atlantic right ° ° that is consistent with mission, training long.; 42–12 N. lat., 70–15 W. long.; whale shall consider additional speed ° ° ° and operations. 42–12 N. lat., 70–30 W. long.; 41–46.8 reductions as per Rule 6 of International (2) Speed reductions (adjustments) are ° N. lat., 70–30 W. long. Navigational Rules. required when a whale is sighted by a (B) Ships, surfaced subs, and aircraft (4) Mitigation Measures for Specific vessel or when the vessel is within 9 km shall report any North Atlantic right At-sea Training Events—If a marine (5 NM) of a reported new sighting less whale sightings (if the whale is mammal is killed as a result of the than 12 hours old. Circumstances could identifiable as a right whale) off the proposed Navy training activities (e.g., arise where, in order to avoid North northeastern U.S. to Patrol and instances in which it is clear that Atlantic right whale(s), speed Reconnaissance Wing munitions explosions caused the death), reductions could mean vessels must (COMPATRECONWING). The report the Navy shall suspend its activities reduce speed to a minimum at which it shall include the time of sighting, lat/ immediately and report the incident to can safely keep on course or vessels long, direction of movement (if NMFS. could come to an all stop. apparent) and number and description (i) Firing Exercise (FIREX) Using the (3) Vessels shall avoid head-on of the whale(s). approaches to North Atlantic right (C) Vessels or aircraft that observe Integrated Maritime Portable Acoustic whale(s) and shall maneuver to whale carcasses shall record the Scoring System (IMPASS) (5-in maintain at least 457 m (500 yd) of location and time of the sighting and Explosive Rounds) separation from any observed whale if report this information as soon as (A) This activity shall only occur in deemed safe to do so. These possible to the cognizant regional Areas 4/5 and 13/14, as specified in the requirements do not apply if a vessel’s environmental coordinator. All whale Navy’s LOA application, in the Cherry safety is threatened, such as when a strikes must be reported. This report Point Range Complex. change of course would create an shall include the date, time, and (B) Pre-exercise monitoring of the imminent and serious threat to a person, location of the strike; vessel course and target area shall be conducted with ‘‘Big vessel, or aircraft, and to the extent speed; operations being conducted by Eyes’’ prior to the event, during vessels are restricted in the ability to the vessel; weather conditions, deployment of the IMPASS sonobuoy maneuver. visibility, and sea state; description of array, and during return to the firing (4) During the North Atlantic right the whale; narrative of incident; and position. Ships shall maintain lookouts whale calving season, north-south indication of whether photos/videos of dedicated to visually searching for ° transits through the critical habitat are the whale were taken. Navy personnel marine mammals 180 along the ship ° prohibited. are encouraged to take photos of the track line and 360 at each buoy drop- (5) Ships, surfaced subs, and aircraft whale whenever possible. off location. shall report any whale sightings to Fleet (D) Specific mitigation measures (C) ‘‘Big Eyes’’ on the ship shall be Area Control and Surveillance Facility, related to activities occurring within the used to monitor a 600-yd (548-m) buffer Jacksonville, by the quickest and most critical habitat include the following: zone for marine mammals during naval- practicable means. The sighting report (1) Vessels shall avoid head-on gunfire events. shall include the time, latitude/ approaches to North Atlantic right (D) Ships shall not fire on the target longitude, direction of movement and whale(s) and shall maneuver to if any marine mammals are detected number and description of whale (i.e., maintain at least 457 m (500 yd) of within or approaching the 600-yd (548- adult/calf). separation from any observed whale if m) buffer zone. If marine mammals are (6) Naval vessel operations in the deemed safe to do so. These present, operations must be suspended. North Atlantic right whale critical requirements do not apply if a vessel’s Visual observation shall occur for habitat and AAOC during the calving safety is threatened, such as when approximately 45 min, or until the season shall be undertaken during change of course would create an animal has been observed to have daylight and periods of good visibility, imminent and serious threat to person, cleared the area and is heading away to the extent practicable and consistent vessel, or aircraft, and to the extent from the buffer zone. At such time as with mission, training, and operation. vessels are restricted in the ability to animals have cleared the area and are When operating in the critical habitat maneuver. heading away from the buffer zone, the and AAOC at night or during periods of (2) When transiting within the critical Navy may begin or resume operations. poor visibility, vessels shall operate as habitat or associated area of concern, (E) Post-exercise monitoring of the if in the vicinity of a recently reported vessels shall use extreme caution and entire target area shall take place with NARW sighting. operate at a safe speed (the minimum ‘‘Big Eyes’’ and the naked eye during the

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retrieval of the IMPASS sonobuoy array (G) No detonations shall take place (A) Location of sighting; following each firing exercise. within 1.6 nm (3 km) of shoreline. (B) Species (if not possible, indicate (F) The naval gunfire shall take place (H) Personnel shall record any whale, dolphin or pinniped); during daylight hours only. protected species observations during (C) Number of individuals; (G) FIREX with IMPASS shall only be the exercise as well as measures taken (D) Whether calves were observed; used in Beaufort Sea State three (3) or if species are detected within the ZOI. (E) Initial detection sensor; less. (F) Length of time observers (H) The visibility must be such that § 218.24 Requirements for monitoring and maintained visual contact with marine the fall of shot is visible from the firing reporting. mammal; ship during the exercise. (a) The Holder of the Letter of (G) Wave height; (I) No firing shall occur if marine Authorization issued pursuant to (H) Visibility; (I) Whether sighting was before, mammals are detected within 70 yd (64 § 216.106 of this chapter and § 218.26 during, or after detonations/exercise, m) of the vessel. for activities described in § 218.20(c) is (ii) Air-to-Surface Missile Exercises required to cooperate with the NMFS and how many minutes before or after; (J) Distance of marine mammal from (Explosive): when monitoring the impacts of the actual detonations (or target spot if not (A) Aircraft shall initially survey the activity on marine mammals. yet detonated); intended ordnance impact area for (b) The Holder of the Authorization must notify NMFS immediately (or as (K) Observed behavior— marine mammals. Watchstanders shall report, in plain (B) During the actual firing of the soon as clearance procedures allow) if language and without trying to weapon, the aircraft involved must be the specified activity identified in § 218.20(c) is thought to have resulted in categorize in any way, the observed able to observe the intended ordnance behavior of the animal(s) (such as impact area to ensure the area is free of the mortality or serious injury of any marine mammals, or in any take of animal closing to bow ride, paralleling marine mammals transiting the range. course/speed, floating on surface and (C) Visual inspection of the target area marine mammals not identified in not swimming etc.), including speed shall be made by flying at 1,500 ft (457 § 218.21(c). (c) The Navy must conduct all and direction; m) altitude or lower, if safe to do so, and (L) Resulting mitigation monitoring and required reporting at slowest safe speed. implementation—Indicate whether under the Letter of Authorization, (D) Explosive ordnance shall not be explosive detonations were delayed, including abiding by the Cherry Point targeted to impact within 1,800 yd ceased, modified, or not modified due to Range Complex Monitoring Plan, which (1,646 m) of sighted marine mammals. marine mammal presence and for how is incorporated herein by reference, and (iii) Mine Neutralization Training long; and Involving Underwater Detonations (up which requires the Navy to implement, (M) If observation occurs while to and including 20-lb charges): at a minimum, the monitoring activities explosives are detonating in the water, (A) This activity shall only occur in summarized below. indicate munitions type in use at time W–15 of the Cherry Point Range (1) Vessel or aerial surveys. of marine mammal detection. Complex. (i) The Holder of this Authorization (2) Passive acoustic monitoring—the (B) Observers shall survey the Zone of shall visually survey a minimum of 1 Navy shall conduct passive acoustic Influence (ZOI), a 700 yd (640 m) radius explosive event per year. If possible, the monitoring when operationally feasible. from detonation location for marine event surveyed shall be one involving (i) Any time a towed hydrophone mammals from all participating vessels multiple detonations. One of the vessel array is employed during shipboard during the entire operation. A survey of or aerial surveys should involve surveys, the towed array shall be the ZOI (minimum of 3 parallel professionally trained marine mammal deployed during daylight hours for each tracklines 219 yd [200 m] apart) using observers (MMOs). If it is impossible to of the days the ship is at sea. support craft shall be conducted at the conduct the required surveys due to (ii) The towed hydrophone array shall detonation location 30 minutes prior lack of training exercises, the missed be used to supplement the ship-based through 30 minutes post detonation. annual survey requirement shall roll systematic line-transect surveys Aerial survey support shall be utilized into the subsequent year to ensure that (particularly for species such as beaked whenever operationally feasible. the appropriate number of surveys (i.e., whales that are rarely seen). (C) Detonation operations shall be total of five) occurs over the 5-year (iii) The array should have the conducted during daylight hours only. period of effectiveness of this subject. capability of detecting low frequency (D) If a marine mammal is sighted (ii) When operationally feasible, for vocalizations (<1,000 Hz) for baleen within the ZOI, the animal shall be specified training events, aerial or vessel whales and relatively high frequency allowed to leave of its own volition. The surveys shall be used 1–2 days prior to, (up to 30 kHz) for odontocetes. The use Navy shall suspend detonation exercises during (if reasonably safe), and 1–5 days of two simultaneously deployed arrays and ensure the area is clear of marine post detonation. can also allow more accurate mammals for a full 30 minutes prior to (iii) Surveys shall include any localization and determination of diving detonation. specified exclusion zone around a patterns. (E) Divers placing the charges on particular detonation point plus 2,000 (3) Marine mammal observers on mines and dive support vessel yards beyond the border of the Navy platforms: personnel shall survey the area for exclusion zone (i.e., the circumference (i) As required in § 218.24(c)(1), marine mammals and shall report any of the area from the border of the MMOs who are selected for aerial or sightings to the surface observers. These exclusion zone extending 2,000 yards vessel surveys shall be placed on a Navy animals shall be allowed to leave of outwards). For vessel based surveys, a platform during one of the explosive their own volition and the ZOI shall be passive acoustic system (hydrophone or exercises being monitored per year, the clear of marine mammals for 30 minutes towed array) could be used to determine other designated exercise shall be prior to detonation. if marine mammals are in the area monitored by the Navy lookouts/ (F) No detonations shall take place before and/or after a detonation event. watchstanders. within 3.2 nm (6 km) of an estuarine (iv) When conducting a particular (ii) The MMO must possess expertise inlet. survey, the survey team shall collect: in species identification of regional

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marine mammal species and experience vicinity of, any Navy training exercise information or clarification on the collecting behavioral data. utilizing underwater explosive Cherry Point Range Complex (iii) MMOs shall not be placed aboard detonations. The Navy shall provide Comprehensive Report, the Annual Navy platforms for every Navy training NMFS with species or description of the Cherry Point Range Complex Exercise event or major exercise, but during animal(s), the condition of the animal(s) Report, or the Annual Cherry Point specifically identified opportunities (including carcass condition if the Range Complex Monitoring Plan Report deemed appropriate for data collection animal is dead), location, time of first (or the multi-Range Complex Annual efforts. The events selected for MMO discovery, observed behaviors (if alive), Monitoring Plan Report, if that is how participation shall take into account and photo or video (if available). the Navy chooses to submit the safety, logistics, and operational (f) Annual Cherry Point Range information) if submitted within 3 concerns. Complex Monitoring Plan Report—The months of receipt. These reports will be (iv) MMOs shall observe from the Navy shall submit a report annually on considered final after the Navy has same height above water as the March 1 describing the implementation addressed NMFS’ comments or lookouts. and results (through January 1 of the provided the requested information, or (v) The MMOs shall not be part of the same year) of the Cherry Point Range three months after the submittal of the Navy’s formal reporting chain of Complex Monitoring Plan. Data draft if NMFS does not comment by command during their data collection collection methods shall be then. efforts; Navy lookouts shall continue to standardized across range complexes to (j) In 2011, the Navy shall convene a serve as the primary reporting means allow for comparison in different Monitoring Workshop in which the within the Navy chain of command for geographic locations. Although Monitoring Workshop participants will marine mammal sightings. The only additional information will also be be asked to review the Navy’s exception is that if an animal is gathered, the MMOs collecting marine Monitoring Plans and monitoring results observed within the shutdown zone that mammal data pursuant to the Cherry and make individual recommendations has not been observed by the lookout, Point Range Complex Monitoring Plan (to the Navy and NMFS) of ways of the MMO shall inform the lookout of the shall, at a minimum, provide the same improving the Monitoring Plans. The sighting and the lookout shall take the marine mammal observation data recommendations shall be reviewed by appropriate action through the chain of required in the data required in the Navy, in consultation with NMFS, command. § 218.24(g). The Cherry Point Range and modifications to the Monitoring (vi) The MMOs shall collect species Complex Monitoring Plan Report may Plan shall be made, as appropriate. identification, behavior, direction of be provided to NMFS within a larger travel relative to the Navy platform, and report that includes the required § 218.25 Applications for Letters of distance first observed. Information Monitoring Plan Reports from Cherry Authorization. collected by MMOs should be the same Point Range Complex and multiple To incidentally take marine mammals as those collected by Navy lookout/ range complexes. pursuant to these regulations, the U.S. watchstanders described in (g) Annual Cherry Point Range citizen (as defined by § 216.103 of this § 218.24(c)(1)(iv). Complex Exercise Report—The Navy chapter) conducting the activity (d) The Navy shall complete an shall provide the information described identified in § 218.20(a) (the U.S. Navy) Integrated Comprehensive Monitoring below for all of their explosive must apply for and obtain either an Program (ICMP) Plan in 2009. This exercises. Until the Navy is able to initial Letter of Authorization in planning and adaptive management tool report in full the information below, accordance with § 218.26 or a renewal shall include: they shall provide an annual update on (1) A method for prioritizing the Navy’s explosive tracking methods, under § 218.27. monitoring projects that clearly including improvements from the § 218.26 Letters of Authorization. describes the characteristics of a previous year. proposal that factor into its priority. (1) Total annual number of each type (a) A Letter of Authorization, unless (2) A method for annually reviewing, of explosive exercise (of those identified suspended or revoked, will be valid for with NMFS, monitoring results, Navy as part of the ‘‘specified activity’’ in this a period of time not to exceed the period R&D, and current science to use for final rule) conducted in the Cherry of validity of this subpart, but must be potential modification of mitigation or Point Range Complex. renewed annually subject to annual monitoring methods. (2) Total annual expended/detonated renewal conditions in § 218.27. (3) A detailed description of the rounds (missiles, bombs, etc.) for each (b) Each Letter of Authorization will Monitoring Workshop to be convened in explosive type. set forth: 2011 and how and when Navy/NMFS (h) Cherry Point Range Complex 5-yr (1) Permissible methods of incidental will subsequently utilize the findings of Comprehensive Report—The Navy shall taking; submit to NMFS a draft report that the Monitoring Workshop to potentially (2) Means of effecting the least analyzes and summarizes all of the modify subsequent monitoring and practicable adverse impact on the multi-year marine mammal information mitigation. species, its habitat, and on the gathered during the Cherry Point Range (4) An adaptive management plan, availability of the species for (5) A method for standardizing data Complex exercises for which annual subsistence uses (i.e., mitigation); and collection for Cherry Point Range reports are required (Annual Cherry Complex and across range complexes, Point Range Complex Exercise Reports (3) Requirements for mitigation, (e) General Notification of Injured or and Cherry Point Range Complex monitoring and reporting. Dead Marine Mammals—Navy Monitoring Plan Reports). This report (c) Issuance and renewal of the Letter personnel shall ensure that NMFS shall be submitted at the end of the of Authorization will be based on a (regional stranding coordinator) is fourth year of the rule (May 2013), determination that the total number of notified immediately (or as soon as covering activities that have occurred marine mammals taken by the activity clearance procedures allow) if an through December 1, 2012. as a whole will have no more than a injured or dead marine mammal is (i) The Navy shall respond to NMFS negligible impact on the affected species found during or shortly after, and in the comments and requests for additional or stock of marine mammal(s).

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§ 218.27 Renewal of Letters of in this document are in need of the Navy (described below) or Authorization and Adaptive Management. reconsideration, and otherwise). (a) A Letter of Authorization issued (2) Proposed changes to the mitigation (6) Any information which reveals under § 216.106 and § 218.26 of this and monitoring requirements contained that marine mammals may have been chapter for the activity identified in in these regulations or in the current taken in a manner, extent or number not § 218.20(c) will be renewed annually Letter of Authorization. authorized by these regulations or upon: (c) A notice of issuance or denial of subsequent Letters of Authorization. (1) Notification to NMFS that the a renewal of a Letter of Authorization activity described in the application will be published in the Federal § 218.28 Modifications to Letters of submitted under § 218.25 shall be Register. Authorization. undertaken and that there will not be a (d) NMFS, in response to new (a) Except as provided in paragraph substantial modification to the information and in consultation with (b) of this section, no substantive described work, mitigation or the Navy, may modify the mitigation or modification (including withdrawal or monitoring undertaken during the monitoring measures in subsequent suspension) to the Letter of upcoming 12 months; LOAs if doing so creates a reasonable Authorization by NMFS, issued (2) Timely receipt of the monitoring likelihood of more effectively pursuant to §§ 216.106 and 218.26 and reports required under § 218.24; and accomplishing the goals of mitigation subject to the provisions of this subpart (3) A determination by the NMFS that and monitoring set forth in the preamble shall be made until after notification the mitigation, monitoring and reporting of these regulations. Below are some of and an opportunity for public comment measures required under § 218.23 and the possible sources of new data that has been provided. For purposes of this the Letter of Authorization issued under could contribute to the decision to paragraph, a renewal of a Letter of §§ 216.106 and 218.26 of this chapter, modify the mitigation or monitoring Authorization under § 218.27, without were undertaken and will be undertaken measures: modification (except for the period of during the upcoming annual period of (1) Results from the Navy’s validity), is not considered a substantive validity of a renewed Letter of monitoring from the previous year modification. Authorization. (either from Cherry Point Study Area or (b) If the Assistant Administrator (b) If a request for a renewal of a other locations). determines that an emergency exists Letter of Authorization issued under (2) Findings of the Monitoring that poses a significant risk to the well- §§ 216.106 and 218.27 of this chapter Workshop that the Navy will convene in being of the species or stocks of marine indicates that a substantial modification 2011 (§ 218.24(j)). mammals specified in § 218.20(b), a to the described work, mitigation or (3) Compiled results of Navy funded Letter of Authorization issued pursuant monitoring undertaken during the research and development (R&D) studies to §§ 216.106 and 218.26 may be upcoming season will occur, the NMFS (presented pursuant to the ICMP substantively modified without prior will provide the public a period of 30 (§ 218.24(d)). notification and an opportunity for days for review and comment on the (4) Results from specific stranding public comment. Notification will be request. Review and comment on investigations (either from the Cherry published in the Federal Register renewals of Letters of Authorization are Point Range Complex Study Area or within 30 days subsequent to the action. restricted to: other locations). (1) New cited information and data (5) Results from general marine [FR Doc. E9–13696 Filed 6–8–09; 4:15 pm] indicating that the determinations made mammal and sound research (funded by BILLING CODE 3510–22–P

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Part III

Department of the Treasury 31 CFR Part 30 TARP Standards for Compensation and Corporate Governance; Interim Final Rule

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DEPARTMENT OF THE TREASURY business days between the hours of 10 on SEO compensation to shareholders; a.m. and 5 p.m. Eastern Time. You can and (12) establishment of the Office of 31 CFR Part 30 make an appointment to inspect the Special Master for TARP Executive comments by telephoning (202) 622– Compensation (Special Master) to RIN 1505–AC09 0990. All comments, including address the application of these rules to TARP Standards for Compensation attachments and other supporting TARP recipients and their employees. and Corporate Governance materials, received are part of the public Among the duties and responsibilities of record and subject to public disclosure. the Special Master with respect to TARP AGENCY: Domestic Finance, Treasury. You should submit only information recipients of exceptional assistance is to ACTION: Interim final rule. that you wish to make available review and approve compensation publicly. payments and compensation structures SUMMARY: This interim final rule, FOR FURTHER INFORMATION CONTACT: For applicable to the SEOs and certain promulgated pursuant to sections further information regarding this highly compensated employees, and to 101(a)(1), 101(c)(5), and 111 of the interim final rule contact the Office of review and approve compensation Emergency Economic Stabilization Act Domestic Finance, Treasury, at (202) structures applicable to certain of 2008 (EESA), as amended by the 927–6618. additional highly compensated American Recovery and Reinvestment employees. TARP recipients that are not SUPPLEMENTARY INFORMATION: Act of 2009 (ARRA), provides guidance receiving exceptional assistance may on the executive compensation and Executive Summary apply to the Special Master for an corporate governance provisions of This Interim Final Rule sets forth the advisory opinion with respect to EESA that apply to entities that receive following standards, which generally compensation payments and structures. financial assistance under the Troubled apply to all TARP recipients in the For further discussion of the Special Asset Relief Program (TARP). Section programs under the TARP, subject to Master’s responsibilities, see section 111 of EESA requires entities receiving certain exceptions for TARP recipients III.B of this preamble. Finally, this financial assistance (TARP recipients) that do not hold outstanding interim final rule also establishes compliance reporting and recordkeeping from the Department of the Treasury obligations: (1) Limits on compensation requirements regarding the rule’s (Treasury) to meet appropriate that exclude incentives for senior executive compensation and corporate standards for executive compensation executive officers (SEOs) to take governance standards. This interim final and corporate governance. This interim unnecessary and excessive risks that rule generally affects TARP recipients, final rule includes standards for TARP threaten the value of the TARP their SEOs, and certain of their highly recipients that implement the recipient; (2) provision for the recovery compensated employees. provisions of section 111 of EESA, as of any bonus, retention award, or well as certain additional standards incentive compensation paid to a SEO I. Background adopted pursuant to the authority or the next twenty most highly granted the Treasury under section In October, 2008, the Department of compensated employees based on the Treasury (Treasury) established the 111(b)(2) to promulgate such additional materially inaccurate statements of standards. Troubled Asset Relief Program (TARP) earnings, revenues, gains, or other under the Emergency Economic DATES: Effective Date: These regulations criteria; (3) prohibition on making any Stabilization Act of 2008, as amended are effective on June 15, 2009. Comment golden parachute payment to a SEO or (12 U.S.C. 5021 et seq.) (EESA). EESA due date: August 14, 2009. any of the next five most highly provided immediate authority and ADDRESSES: Treasury invites comments compensated employees; (4) prohibition facilities that the Secretary of the on the topics addressed in this interim on the payment or accrual of bonus, Treasury (Secretary) could use to restore final rule. Comments may be submitted retention award, or incentive liquidity and stability to the financial to Treasury by any of the following compensation to SEOs or certain highly system. Section 101(a) of EESA methods: Submit electronic comments compensated employees, subject to authorizes the Secretary to establish the through the Federal government e- certain exceptions for payments made in TARP to ‘‘purchase, and to make and rulemaking portal, http:// the form of restricted stock; (5) fund commitments to purchase, www.regulations.gov or by e-mail to prohibition on employee compensation troubled assets from any financial executivecompensation plans that would encourage institution, on such terms and [email protected] or send paper manipulation of earnings reported by conditions as are determined by the comments in triplicate to Executive the TARP recipient to enhance an Secretary, and in accordance with this Compensation Comments, Office of employee’s compensation; (6) Act and policies and procedures Financial Institutions Policy, Room establishment of a compensation developed and published by the 1418, Department of the Treasury, 1500 committee of independent directors to Secretary.’’ Pennsylvania Avenue, NW., meet semi-annually to review employee On February 13, 2009, Congress Washington, DC 20220. compensation plans and the risks posed enacted the American Recovery and In general, Treasury will post all by these plans to the TARP recipient; (7) Reinvestment Act of 2009 (ARRA), comments to http://www.regulations.gov adoption of an excessive or luxury which the President signed into law on without change, including any business expenditures policy; (8) disclosure of February 17, 2009. Title VII of Division or personal information provided, such perquisites offered to SEOs and certain B of the ARRA amended in its entirety as names, addresses, e-mail addresses, highly compensated employees; (9) section 111 of EESA. Section 111 of or telephone numbers. Treasury will disclosure related to compensation EESA provides that certain entities that also make such comments available for consultant engagement; (10) prohibition receive financial assistance from public inspection and copying in on tax gross-ups to SEOs and certain Treasury under the TARP (TARP Treasury’s Library, Room 1428, highly compensated employees; (11) recipients) will be subject to specified Department of the Treasury, 1500 compliance with Federal securities rules executive compensation and corporate Pennsylvania Avenue, NW., and regulations regarding the governance standards to be established Washington, DC 20220, on official submission of a non-binding resolution by the Secretary.

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II. Previous Rulemaking subject to a provision for recovery or EESA, Notice 2008–TAAP prohibited ‘‘clawback’’ by the financial institution any financial institution selling more A. October 2008 Interim Final Rule if the payments were based on than $300,000,000 in troubled assets On October 20, 2008, Treasury materially inaccurate financial through an auction program from published in the Federal Register an statements or any other materially entering into a new SEO employment interim final rule (73 FR 62205) adding inaccurate performance metric criteria. agreement with a golden parachute 31 CFR Part 30 under section 111 of Section 111(b)(2)(C) of EESA required provision through the length of the EESA (prior to its later amendment by ‘‘a prohibition on the financial program. Second, I.R.S. Notice 2008–94, ARRA) (October 2008 Interim Final institution making any golden parachute addressing certain tax provisions in Rule). The October 2008 Interim Final payment to its senior executive officer section 302 of EESA applicable to SEO Rule established the original executive during the period that the Secretary compensation, required financial compensation standards for financial holds an equity or debt position in the institutions selling more than institutions participating in the Capital financial institution.’’ In accordance $300,000,000 in troubled assets through Purchase Program (CPP), a financial with this section, the October 2008 an auction program to forgo any stability program implemented under Interim Final Rule prohibited a financial deduction for compensation for Federal the TARP in October 2008. These institution from making any golden income tax purposes in excess of standards generally applied to the parachute payment to a SEO during the $500,000 for each SEO under newly senior executive officers (SEOs) of the period Treasury holds an equity or debt added section 162(m)(5) of the Internal CPP participant, that is, the principal position acquired under the CPP. The Revenue Code (26 U.S.C. 162(m)(5)) and executive officer (PEO), the principal October 2008 Interim Final Rule defined any deduction for certain SEO golden financial officer (PFO), and the three a golden parachute payment as any parachute payments under newly added most highly compensated executive payment in the nature of compensation section 280G(e) of the Internal Revenue officers in addition to the PEO and the to (or for the benefit of) a SEO made on Code (26 U.S.C. 280G(e)). In addition, PFO. account of an applicable severance from I.R.S. Notice 2008–94 subjected SEOs to Section 111(b)(2)(A) of EESA, prior to employment to the extent the aggregate a 20-percent excise tax on these golden the amendment by ARRA, required present value of such payments equals parachute payments. ‘‘limits on compensation that exclude or exceeds an amount equal to three On January 16, 2009, Treasury incentives for senior executive officers times the SEO’s base amount of announced amendments to the October of a financial institution to take compensation. 2008 Interim Final Rule to include unnecessary and excessive risks that The October 2008 Interim Final Rule reporting and recordkeeping threaten the value of the financial also set forth an additional standard for requirements under the executive institution during the period that the executive compensation and corporate compensation standards for the CPP. Secretary holds an equity or debt governance under the authority of However, these amendments were position in the financial institution.’’ section 111(b)(1) of EESA. This standard returned from the Federal Register and With respect to section 111(b)(2)(A), the required the financial institution to never published and, thus, will never be October 2008 Interim Final Rule forgo any deduction for compensation effective. required the financial institution’s for Federal income tax purposes in The provisions of the ARRA and this compensation committee to identify the excess of $500,000 for each SEO that interim final rule (Interim Final Rule) features in the financial institution’s would not be deductible if section supersede the October 2008 Interim SEO incentive compensation 162(m)(5) of the Internal Revenue Code Final Rule, Notice 2008–PSSFI, and arrangements that could lead SEOs to (26 U.S.C. 162(m)(5)) applied to the Notice 2008–TAAP, for periods for take unnecessary and excessive risks financial institution. which the ARRA provisions described that could threaten the value of the in this rule are effective. For a more B. Other Guidance financial institution. The October 2008 detailed discussion of the effective Interim Final Rule required that the At the same time of the release of the dates, including the effective date of this compensation committee review (no October 2008 Interim Final Rule, Interim Final Rule, see § 30.17 (Q–17) of more than ninety days after the Treasury also published guidance the Interim Final Rule, and the purchase under the CPP and annually relating to other financial stability discussion of § 30.17 (Q–17) in section thereafter) the SEO incentive programs under TARP. Treasury Notice III.B of this preamble. compensation arrangements with the 2008–PSSFI addressed the provisions In addition, on February 4, 2009, financial institution’s senior risk officers under section 111(b) of EESA as Treasury issued new guidance on the to ensure that SEOs were not applicable to financial institutions executive compensation restrictions encouraged to take such risks. The participating in programs for under EESA (February 2009 Treasury compensation committee was then systemically significant failing Guidance). The February 2009 Treasury required to certify that it had completed institutions. Treasury Notice 2008– Guidance provided financial those reviews. PSSFI included the same standards as institutions participating in the TARP Section 111(b)(2)(B) of EESA required the October 2008 Interim Final Rule with reporting and recordkeeping ‘‘a provision for the recovery by the with one exception: It prohibited the guidance, including guidance for financial institution of any bonus or financial institution from making any compensation committees in preparing incentive compensation paid to a senior golden parachute payment (defined an explanation of how SEO executive officer based on statements of more strictly under Treasury Notice compensation arrangements do not earnings, gains, or other criteria that are 2008–PSSFI as any payment made on encourage excessive and unnecessary later proven to be materially account of an applicable severance from risk-taking. inaccurate.’’ With respect to this employment) to a SEO. For entities participating in an section, the October 2008 Interim Final In addition, Treasury issued two exceptional assistance program under Rule required the SEO bonus and notices on executive compensation the TARP, the February 2009 Treasury incentive compensation paid while requirements applicable to auction Guidance proposed to (1) limit the Treasury holds an equity or debt programs for purchasing troubled assets. annual compensation of senior position acquired under the CPP to be First, pursuant to section 111(c) of executives to $500,000 other than

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restricted stock or other similar long- directors in adopting a luxury not be deductible if section 162(m)(5) of term incentive arrangements; (2) require expenditures policy. the Internal Revenue Code (26 U.S.C. the vesting schedule of this restricted The February 2009 Treasury Guidance 162(m)(5)) were to apply to the TARP stock to be based on the financial provided that the guidelines would not recipient. Thus, TARP recipients institution’s satisfying repayment apply retroactively to existing generally agreed in their applicable obligations, protecting taxpayer investments or to previously announced contracts with Treasury under TARP not interests, and meeting lending and programs. The February 2009 Treasury to claim a deduction for compensation stability standards; (3) require full Guidance also anticipated a public during a taxable year in excess of disclosure of executive compensation comment period before implementation $500,000 for a SEO. This Interim Final structure and strategy and a non-binding of the guidelines for generally available Rule does not impose additional tax shareholder resolution approving or capital access programs. Before the full related restrictions beyond those that disapproving the structure and strategy; implementation of the February 2009 already apply under section 162(m)(5). (4) require provisions for clawback of Treasury Guidance, Congress enacted However, because these contractual bonuses and incentive compensation the ARRA. The ARRA prescribes new terms are not inconsistent with any awarded to SEOs if based on materially executive compensation standards provisions of this Interim Final Rule, inaccurate financial statements or different from the Treasury Guidance the contractual provisions remain in performance metrics; (5) require (except for the similar provisions with effect, in accordance with their terms, provisions for the clawback of bonuses respect to required clawback provisions and accordingly, TARP recipients and incentive compensation awarded to and excessive or luxury expenditures continue to be required to forgo the the next twenty executive officers if policies), and requires Treasury to applicable deduction. See § 30.17 (Q– based on materially inaccurate financial establish these standards by 17), and the discussion of § 30.17 (Q–17) statements or performance metrics and promulgating regulations to implement in section III.B of this preamble. In the executive officers had knowingly section 111. This Interim Final Rule addition, Treasury anticipates requiring engaged in providing inaccurate complies with this statutory this condition in any future agreements information relating to those financial requirement to promulgate standards to provide TARP assistance. statements or performance metrics; (6) that implement the ARRA provisions, Section 111(b)(3)(A) requires that limit the payment of any golden consolidates all of the executive- Treasury promulgate standards limiting parachute payments to the SEOs and the compensation-related provisions that SEO compensation to exclude next five executive officers; (7) prohibit are specifically directed at TARP incentives for SEOs to take unnecessary the payment of any golden parachute recipients into a single rule and excessive risks threatening to the payments greater than one year’s (superseding all prior rules and TARP recipient’s value. Section 111(b)(3)(B) requires Treasury compensation to the next twenty-five guidance), and utilizes the discretion to establish standards mandating that executive officers; and (8) provide granted to the Secretary under the TARP recipients institute a provision to guidance for boards of directors in ARRA to adopt additional standards, recover any bonus, retention award, or adopting a luxury expenditures policy. some of which are adapted from principles set forth in the February 2009 incentive compensation paid to a SEO For entities participating in a Treasury Guidance. and any of the next twenty most highly generally available capital access compensated employees of the TARP program under the TARP, the February III. The Interim Final Rule recipient if the compensation was based 2009 Treasury Guidance proposed to (1) This Interim Final Rule revises in its on materially inaccurate statements of limit SEO annual compensation to entirety 31 CFR Part 30, which earnings, revenues, gains, or other $500,000 with any additional pay in the comprises Treasury’s regulations criteria (a provision sometimes referred form of restricted stock or other similar implementing section 111 of EESA. to as a ‘‘clawback’’). long-term incentive arrangements Section 111(b)(3)(C) requires Treasury carrying the same restrictions as for A. Overview of Statutory Provisions to establish standards prohibiting TARP entities participating in an exceptional Generally, section 111 of EESA, as recipients from making golden assistance program; (2) allow entities to amended by ARRA, imposes corporate parachute payments (defined in Section waive this limitation only by disclosure governance and executive compensation 111(a)(2) as any payment for ‘‘departure of SEO compensation and, if requested, requirements on TARP recipients and from a company for any reason, except a non-binding shareholder resolution on requires Treasury to establish certain for payments for services performed or that SEO compensation; (3) require corporate governance and executive benefits accrued’’) to a SEO or any of the provisions for clawback of bonuses and compensation standards with which next five most highly compensated incentive compensation awarded to TARP recipients must comply. Section employees. SEOs if based on materially inaccurate 111 outlines several specific standards, Section 111(b)(3)(D) requires Treasury financial statements or performance and requires Treasury to establish these to establish standards prohibiting TARP metrics; (4) require provisions for standards by promulgating regulations. recipients from paying or accruing any clawback of bonuses and incentive Section 111 also authorizes Treasury to bonus, retention award, or incentive compensation awarded to the next establish additional standards by compensation to certain highly twenty executive officers if based on regulation. compensated employees or SEOs. This materially inaccurate financial Section 111(b)(1) of EESA provides prohibition has two exceptions: (1) statements or performance metrics and that a TARP recipient shall be subject to TARP recipients can pay or accrue such if the executive officers knowingly the standards established by the amounts if the amounts are payable as engaged in providing inaccurate Secretary under that section and the long-term restricted stock, provided that information relating to those financial provisions of section 162(m)(5) of the the stock does not fully vest until the statements or performance metrics; (5) Internal Revenue Code, as applicable. repayment of TARP assistance, has a prohibit the payment of any golden The October 2008 Interim Final Rule value that is no greater than one-third of parachute payments greater than one required that all TARP recipients forgo the total annual compensation, and is year’s compensation to the SEOs; and any deduction for Federal income tax subject to such other terms and (6) provide guidance for boards of purposes for compensation that would conditions as the Secretary may

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determine to be in the public interest; Section 111(b)(4) requires the chief Federal government only holds warrants and (2) TARP recipients can make executive officer and the chief financial to purchase common stock of the TARP bonus payments required to be paid officer of the TARP recipient (or recipient. For TARP recipients that under written employment contracts equivalents thereof) to provide a written never hold an obligation, however, the executed on or before February 11, 2009 certification of compliance with the more limited requirements generally and determined to be valid by the requirements of section 111 to the SEC, apply through the last date of the TARP Secretary. The number of employees to if the TARP recipient has publicly purchase authority. which this prohibition applies depends traded securities, or to the Secretary, if The Interim Final Rule defines upon the amount of financial assistance the TARP recipient does not have financial assistance to include direct provided to the TARP recipient. publicly traded securities. financial transactions between Treasury Section 111(b)(3)(E) requires Treasury Section 111(f) requires the Secretary and private sector participants in to establish standards prohibiting any to review bonuses, retention awards, programs under the TARP. Although employee compensation plan that and other compensation paid to SEOs some determinations may be fact would encourage manipulation of the and the next 20 most highly specific, entities that do not engage in reported earnings of the TARP recipient compensated employees of each TARP financial transactions with Treasury as to enhance the compensation of any of recipient before the date of enactment of a counterparty generally will not be its employees. the ARRA to determine whether any deemed to be receiving ‘‘financial Section 111(b)(3)(F) and Section such payments were inconsistent with assistance.’’ As illustration, for purposes 111(c) require Treasury to mandate that the purposes of section 111 of EESA or of the Interim Final Rule, financial the TARP recipient establish a TARP or were otherwise contrary to the institutions that sell preferred stock to compensation committee of its board of public interest, and if such a Treasury through the Capital Purchase directors comprised entirely of determination is made, to seek to Program are receiving financial independent members of the board of negotiate with the TARP recipient and assistance and therefore are TARP directors to meet at least semi-annually the subject employee for appropriate recipients subject to the provisions of to review, discuss, and evaluate reimbursement. the Interim Final Rule. By contrast, Section 111(h) requires the Secretary employee compensation plans in light entities that post collateral to and to promulgate regulations to implement of any assessment of any risks these receive loans from the Federal Reserve section 111. plans pose to the TARP recipients. Term Asset-Backed Securities Loan Facility (TALF) are not receiving Section 111(c)(3) provides that the B. Description of the Interim Final Rule ‘‘financial assistance provided under the board of directors of a TARP recipient The major provisions of the Interim TARP’’ and, therefore, are not TARP that has no common or preferred stock Final Rule, to be codified at 31 CFR Part recipients under the Interim Final Rule. registered pursuant to the Securities 30, are as follows: In the TALF program, Treasury has Exchange Act of 1934 (15 U.S.C. 78a et Section 111 specifies executive posted a subordinated loan to the seq.) (Exchange Act) and has received compensation and corporate governance Federal Reserve Bank of New York $25,000,000 or less in financial standards applicable to TARP special purpose vehicle (SPV), which assistance is required to carry out the recipients. The standards are written in accepts forfeited collateral from TALF duties of the compensation committee question and answer format. lending. Although the SPV has engaged as described above. Definitions used in the Interim Final in a financial transaction with Treasury, Section 111(d) requires a TARP Rule are set forth in § 30.1 (Q–1) of the Treasury has not interpreted ARRA to recipient’s board of directors to put in Interim Final Rule. The executive require that the Federal Reserve Bank of place a company-wide policy regarding compensation and corporate governance New York, as a non-profit government excessive or luxury expenditures, as requirements under the Interim Final instrumentality, be deemed to be identified by the Secretary, and that Rule apply to all TARP recipients, receiving financial assistance. may include excessive expenditures on defined in section 111(a)(3) as ‘‘any Importantly, Federal Reserve banks entertainment or events, office and entity that has received or will receive fulfill their governmental function by facility renovations, aviation or other financial assistance under the financial returning their annual profits to transportation services, or other assistance provided under the TARP.’’ Treasury, which limits the extent to activities or events that are not These restrictions will also generally which a transaction with Treasury could reasonable expenditures for staff apply to any entity of which the TARP be deemed to be financial assistance. development, reasonable performance recipient owns at least 50%, or which These requirements apply to SEOs incentives, or other similar measures owns at least 50% of the TARP and certain most highly compensated conducted in the normal course of the recipient, determined using certain employees, as defined in § 30.1. Section TARP recipient’s business operations. provisions of sections 414(b) and (c) of 30.1 (Q–1) of the Interim Final Rule Section 111(e) requires that any proxy the Internal Revenue Code, 26 U.S.C. bases the determination of the SEOs on or consent or authorization for an 414(b) and (c), if those provisions were the executive compensation disclosure annual or other meeting of the TARP applied using a 50% ownership requirements in Item 402 of Regulation recipient shareholders, as long as any threshold instead of an 80% ownership S–K under the Federal securities laws obligation arising from TARP assistance threshold. In addition, these restrictions (17 CFR 229.402), which generally remains outstanding, permit a separate may apply to a related entity if the applies to the PEO, the PFO, and the nonbinding shareholder vote to approve primary purpose for the creation or three most highly compensated the compensation of executives, as utilization of such entity is to avoid or executive officers (other than the PEO disclosed pursuant to the compensation evade some or all of the restrictions and the PFO). Section 30.1 (Q–1) of the disclosure rules of the Securities and under section 111. These requirements Interim Final Rule bases the Exchange Commission (SEC). Section generally apply for the period during identification of the three most highly 111(e)(3) directs the SEC to issue any which any obligation arising from compensated executive officers on final rules and regulations necessary to financial assistance under the TARP annual compensation for the last implement this requirement not later remains outstanding (TARP period), completed fiscal year and defines than February 17, 2010. except any period during which the annual compensation as it is determined

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pursuant to Item 402(a) of Regulation are actually paid in a future year). compensated employees, § 30.3 (Q–3) of S–K under the Federal securities laws Finally, public companies and investors the Interim Final Rule requires that the (17 CFR 229.402(a)). To be consistent are familiar with this SEC total annual TARP recipient ensure that a potential with the determination of the three most compensation measurement, which was SEO or most highly compensated highly compensated executive officers, developed through an extensive notice employee comply with the relevant § 30.1 (Q–1) of the Interim Final Rule and comment process and has been in executive compensation and corporate also defines the most highly effect since 2006 as part of the SEC’s governance standards. compensated employees according to final revised executive compensation Several requirements under the their annual compensation for the last disclosure rule. Interim Final Rule relate to the completed fiscal year, as it is Because the most highly compensated compensation committee of the TARP determined pursuant to Item 402(a) of employees are determined based on recipient’s board of directors, and its Regulation S–K under the Federal annual compensation earned in the duties. Pursuant to section 111(b)(3)(A), securities laws (17 CFR 229.402(a)). prior year, the issue has been raised that section 111(b)(3)(E), and section However, a most highly compensated a TARP recipient might be able to 111(b)(3)(F), § 30.4 (Q–4) of the Interim employee may be an employee who is intentionally cycle employees in and Final Rule requires the TARP recipient not an executive officer. The Interim out of most highly compensated to establish a compensation committee Final Rule does not limit application of employee status in alternate years to composed of independent members of the requirements to executive officers guarantee periods of complete exclusion the board of directors before the later of because the ARRA statutory language for certain employees from the ninety days after the closing date of the refers to most highly compensated executive compensation limitations agreement between Treasury and the employees, rather than most highly applicable to most highly compensated TARP recipient or ninety days after June compensated executive officers, and employees. Some methods that might 15, 2009 to fulfill a number of duties. therefore does not limit the coverage in mitigate, though not eliminate, this Many public company TARP recipients this manner. A most highly possibility include identifying the most already maintain compensation compensated employee does not highly compensated employees based committees of independent directors include a former employee of the TARP on an averaging of the preceding two or pursuant to stock exchange listing recipient who is not employed by the three years’ annual compensation, or standards, and § 30.4 (Q–4) of the TARP recipient on the first day of the requiring that some or all of the most Interim Final Rule allows for the fiscal year for which the determination highly compensated employees continued maintenance of already- is being made (as opposed to the identified for one year remain subject to established compensation committees. preceding fiscal year), unless such the limitations for a prescribed number Section 30.4 (Q–4) of the Interim Final employee is reasonably anticipated to of additional years, regardless of their Rule also, in accordance with section return to employment with the TARP subsequent level of compensation. The 111(c)(3), provides an exception for recipient during the fiscal year. Treasury invites comment on this issue, certain private company TARP including on the extent to which recipients. Thus, § 30.4 (Q–4) of the The Interim Final Rule defines annual intentional cycling of most highly Interim Final Rule allows TARP compensation in this manner for several compensated employee status is likely recipients that have no securities reasons. Both the ARRA and the original to occur given that there is no overall registered pursuant to the Exchange Act EESA executive compensation compensation limitation on most highly and have received $25,000,000 or less in provisions require that the senior compensated employees under the financial assistance to either establish a executive officers be determined Interim Final Rule, potential methods of compensation committee of according to the compensation addressing the issue (including the independent directors or to delegate, as disclosure requirements under Federal methods previously mentioned), how appropriate, to the board of directors the securities regulations; it would be such methods would be effective in duties of the compensation committee anomalous to treat the determination of deterring, eliminating, or limiting as described below. most highly compensated employee intentional cycling, and the extent of Each TARP recipient faces different compensation in a different manner. In any additional administrative burdens material risks given the unique nature of addition, the compensation required to that the application of such methods its business and the markets in which it be disclosed under Federal securities might create. operates. Thus, § 30.5 (Q–5) of the regulations more closely reflects the Section 30.1 (Q–1) of the Interim Interim Final Rule requires the economic reality of the compensation Final Rule requires that TARP recipients compensation committee to discuss, that the employee actually earned that are smaller reporting companies, as evaluate, and review at least every six during the year by reporting that term is defined in Item 10 of months with senior risk officers SEO compensation regardless of whether it Regulation S–K under the Federal compensation plans and employee was includible in income for income tax securities laws (17 CFR 229.10), identify compensation plans and the risks these purposes during that year (for example, five SEOs, even if only three named plans pose to the TARP recipient; including the value of a stock option, executive officers are required to be identify and limit the features in the deferred salary and bonuses when identified pursuant to Item 402(m) of SEO compensation plans that could lead earned) in contrast to annual Regulation S–K under the Federal SEOs to take unnecessary and excessive compensation reported as Form W–2 securities laws (17 CFR 229.402(m)). risks that could threaten the value of the compensation, which reflects only Analogous rules apply to TARP TARP recipient; and identify and limit compensation that was includible in recipients that do not have securities any features in the employee income for income tax purposes during registered with the SEC pursuant to the compensation plans that pose risks to the calendar year regardless of when Federal securities laws. the TARP recipient to ensure that the that compensation was earned (for Prior to the annual identification of TARP recipient is not unnecessarily example, including income from stock the SEOs, who are typically identified exposed to risks, including any features options generally at the time of exercise in the TARP recipient’s annual report in these SEO compensation plans or the and including in income deferred salary on Form 10–K or annual meeting proxy employee compensation plans that and bonuses only when those amounts statement, and the most highly would encourage behavior focused on

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short-term results rather than long-term employees is subject to a provision for definition of golden parachute payment value creation. In addition, § 30.6 (Q–6) recovery or ‘‘clawback’’ by the TARP qualified retirement plans and similar of the Interim Final Rule requires that recipient if the payments or accruals foreign retirement plans, as well as the compensation committee discuss, were based on materially inaccurate payments due to an employee’s death or evaluate, and review at least every six financial statements or any other disability and severance payments months the terms of each employee materially inaccurate performance required by State statute or foreign law. compensation plan and identify and metric criteria. Section 30.8 (Q–8) of the Given the language of the ARRA, there eliminate the features in the plan that Interim Final Rule deems that bonuses, is no longer any exception for any could encourage the manipulation of retention awards, and incentive amount of a golden parachute payment, reported earnings of the TARP recipient compensation are paid or accrued to a such as was allowed under the October to enhance the compensation of an SEO or any one of the next twenty most 2008 Interim Final Rule. In addition, a employee. highly compensated employees during golden parachute payment is treated as Sections 30.4 (Q–4) and 30.7 (Q–7) of the TARP period when the SEO or one paid at the time of the employee’s the Interim Final Rule require the of the next twenty most highly departure, regardless of when the compensation committee to provide compensated employees obtains a amounts are actually paid. Therefore, annually a narrative description of how legally binding right to that payment TARP recipients and employees may it limited the features in (1) SEO during the TARP period. not avoid the restriction by deferring compensation plans that could This clawback provision differs from payment of the golden parachute encourage SEOs to take unnecessary and the clawback provision required under payment past the end of the TARP excessive risks that could threaten the section 304 of the Sarbanes-Oxley Act of period. value of the TARP recipient, including 2002 (Sarbanes-Oxley) (Pub. Law No. Pursuant to section 111(b)(3)(D), how these SEO compensation plans do 107–204). Section 304 of Sarbanes- § 30.10 (Q–10) of the Interim Final Rule not encourage behavior focused on Oxley requires the forfeiture by a public prohibits a TARP recipient from paying short-term results rather than long-term company’s chief executive officer or the or accruing any bonus, retention award, value creation, (2) employee chief financial officer of any bonus, or incentive compensation during the compensation plans to ensure that the incentive-based, or equity-based TARP period to certain employees. The TARP recipient is not unnecessarily compensation received during the TARP recipient’s amount of financial exposed to risks, including how these twelve-month period following a assistance determines the number of employee compensation plans do not materially non-compliant financial employees subject to this prohibition. encourage behavior focused on short- report and any profits from sales of the This prohibition applies to the most term results rather than long-term value company’s securities during that period. highly compensated employee of any creation, and (3) employee In contrast, the standard established TARP recipient that has received less compensation plans that could under section 111(b)(3)(B) of EESA than $25,000,000 in financial assistance; encourage the manipulation of reported applies to the three most highly to at least the five most highly earnings of the TARP recipient to compensated executive officers and the compensated employees of any TARP enhance the compensation of an next twenty most highly compensated recipient that has received at least employee. employees in addition to the PEO and $25,000,000 but less than $250,000,000; Sections 30.4 (Q–4) and 30.7 (Q–7) of the PFO; applies to both public and the SEOs and at least the ten next most the Interim Final Rule require that the private TARP recipients; applies to highly compensated employees of any compensation committee certify retention awards; is not exclusively TARP recipient that has received at least annually that it has completed the triggered by a requirement to prepare an $250,000,000 but less than reviews of the SEO compensation plans accounting restatement due to material $500,000,000; and the SEOs and at least and the employee compensation plans noncompliance of the issuer as a result the twenty next most highly as outlined above. Section 30.7 (Q–7) of of misconduct; does not limit the compensated employees of any TARP the Interim Final Rule also provides that recovery period; and covers not only recipient that has received $500,000,000 TARP recipients with securities material inaccuracies relating to or more. Section 30.10 (Q–10) of the registered with the SEC pursuant to the financial reporting but also material Interim Final Rule states that TARP Federal securities laws must provide inaccuracies relating to other recipients will be subject during the these disclosures and certifications in performance metrics used to calculate TARP period to the bonus limitation the Compensation Committee Report bonus payments. requirements based on the total amount required pursuant to Item 407 of Pursuant to section 111(b)(3)(C), of financial assistance outstanding Regulation S–K under the Federal § 30.9 (Q–9) of the Interim Final Rule under the TARP. If additional financial securities laws (17 CFR 229.407) and to prohibits a TARP recipient from making assistance would result in additional Treasury. Section 30.7 (Q–7) of the a golden parachute payment to a SEO or employees becoming subject to the Interim Final Rule requires that TARP the next five most highly compensated prohibition, the prohibition on the recipients that are smaller reporting employees during the TARP period. additional employees will not be companies or do not have securities Under the Interim Final Rule, a golden effective until the fiscal year following registered with the SEC pursuant to the parachute payment includes a payment the year during which the additional Federal securities laws provide the for departure from a TARP recipient for financial assistance is received. disclosures and certifications to their any reason, other than a payment for Section 30.1 (Q–1) of the Interim primary regulatory agency and to services performed or benefits accrued. Final Rule includes definitions of a Treasury. Pursuant to the authority granted the bonus, incentive compensation or Pursuant to section 111(b)(3)(B), Secretary under section 111(b)(2) and retention award. A bonus means any § 30.8 (Q–8) of the Interim Final Rule section 111(h), the Interim Final Rule payment in addition to any amount requires a TARP recipient to ensure that also treats as a golden parachute payable to an employee for services any bonus, retention award, or incentive payment and amount due upon a performed by the employee at a regular compensation paid or accrued during change in control event of the TARP hourly, daily, weekly, monthly or the TARP period to a SEO or one of the recipient. Section 30.1 (Q–1) of the similar periodic rate. Generally a bonus next twenty most highly compensated Interim Final Rule excludes from the would not include a contribution to a

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qualified plan, benefits under a broad- addition, the payment may be made in is also made for amounts accrued under based benefit plan, bona fide overtime stock that is subject to holding periods a nonqualified deferred compensation pay, and bona fide and routine expense or transferability restrictions, such as plan, to the extent the amounts are reimbursements. Section 30.10 (Q–10) not permitting the stock to be accrued in the normal course of the contains rules defining when bonuses transferred for a specified number of employee’s service at the TARP will be treated as accruing or paid. years, until a specified event occurs recipient and are not accrued by reason Notably, section 30.10 (Q–10) contains (such as the employee’s retirement, or a of a material enhancement of such an anti-abuse rule, intending to address specified number of years after an benefits. An exception is not provided, circumstances in which a bonus that employee’s retirement or other however, for awards to new hires, was not permitted to accrue during the termination of employment), or until including awards as part of a ‘‘make- year an employee was covered by the certain TARP fund repayment hurdles whole’’ agreement intended to provide a bonus limitation is paid to the employee are met. However, the payment must newly hired employee a continuation of in the subsequent year when the still be payment of salary or another benefits accruing at a prior employer. employee is not covered by the bonus permissible amount. Accordingly, the Such awards are not structurally limitation, but is designated as some amount of the future payment must be materially different from retention other form of payment such as a salary denominated in dollars, rather than in a awards granted to current employees, increase or a stock option grant. In such number of shares. For example, an which are intended to be subject to a case, the payment in the subsequent employee could be entitled to a salary these restrictions. year may be recharacterized as a of $5,000 per week, half payable in cash Pursuant to section 111(b)(3)(D)(i), payment of the bonus that was not and half payable in stock valued at § 30.10 (Q–10) of the Interim Final Rule permitted to accrue in the previous year. $2,500 on each salary payment date. In provides two exclusions from this Section 30.1 (Q–1) of the Interim addition, as salary, the stock or other prohibition on the payment or accrual of Final Rule excepts from the definition of property cannot be subject to a bonus, retention award, or incentive a bonus certain commission substantial risk of forfeiture or any compensation. The TARP recipient is compensation for sales to, and requirement of future services (and thus permitted to award long-term restricted investment management services for, the grant of such stock will not be stock to the employees subject to this unrelated parties. Many TARP treated as a retention award either), as prohibition. Because many TARP recipients have broker-dealer, distinguished from a restriction on recipients, especially smaller, family- investment advisory, and insurance transferability. The same analysis would owned community banks as well as divisions, where registered apply to a grant of a stock unit (such as private financial institutions, would be representatives, investment advisors, phantom stock or a restricted stock unit) unwilling or unable to award restricted and agents typically receive with similar characteristics to the salary stock, § 30.1 (Q–1) of the Interim Final commissions based on the amount of payment arrangement described above, Rule defines long-term restricted stock sales of financial products or the value in lieu of a grant of the same number of to include both restricted stock and of assets under management. In this shares. Accordingly, the stock unit restricted stock units, which can be context, commission payments could not be subject to a substantial risk settled in stock or cash, and which may characteristically are viewed as a of forfeiture or other requirement of be designed to track a specific unit or component of base salary rather than continued services, and would be division within a TARP recipient. Section 30.10 (Q–10) of the Interim bonus compensation. However, fees payable at a fixed date in the future (and earned from sales to entities within the Final Rule describes the restrictions the arrangement would otherwise need affiliated group, investment banking, or imposed upon this stock. Pursuant to to comply with the requirements of proprietary trading are not considered section 111(b)(3)(D)(i)(I), § 30.11 (Q–11) section 409A of the Internal Revenue commission compensation and the of the Interim Final Rule states that the Code (26 U.S.C. 409A)). However, such Interim Final Rule does not except these value of the long-term restricted stock a structure generally will not be feasible fees from the definition of a bonus or can be no greater than 1⁄3 of the during 2009 due to the restrictions incentive compensation. employee’s total annual compensation. Section 30.1 (Q–1) of the Interim under section 409A of the Internal For purposes of determining annual Final Rule generally defines an Revenue Code (26 U.S.C. 409A). compensation under the long-term incentive compensation plan by Section 30.1 (Q–1) generally defines a restricted stock exception, all equity- reference to the Federal securities retention award as any payment to an based compensation granted will be regulations. However, for purposes of employee that is not payable included in the calculation only in the this Interim Final Rule, an incentive periodically to an employee for service year in which it is granted, and will be compensation plan also includes a stock performed by the employee at a regular included at its total fair market value on option or stock plan, regardless of hourly, daily, weekly, monthly, or the grant date, so all equity-based whether those plans are subject to similar periodic rate, is contingent on compensation granted in fiscal years performance-based vesting. The the completion of a period of future ending prior to June 15, 2009 will not inclusion of these arrangements is service with the TARP recipient or the be included in the calculation of annual consistent with the statute’s classifying completion of a specific project or other compensation. In determining the value the grant of a limited amount of long- activity of the TARP recipient, and is of the long-term restricted stock grant, term restricted stock as an exception to not based on the performance of the the long-term restricted stock will be the bonus, incentive compensation, and employee (other than a requirement that included in the calculation only in the retention award restrictions. the employee not be separated from year in which the restricted stock is This inclusion of a stock plan in the employment for cause) or the business granted, and will be included at its total definition of an incentive compensation activities or value of the TARP fair market value on the grant date. This plan does not restrict the TARP recipient. Exceptions are provided for a calculation of total annual recipient’s ability to pay salary or other contribution to or payment made from compensation differs from the permissible payments in the form of a qualified plan, or a payment from a calculation used to determine the SEOs stock or other property, even if the stock benefit plan, overtime pay or reasonable and most highly compensated is issued pursuant to a stock plan. In expense reimbursement. An exception employees each year, which is

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determined pursuant to Item 402(a) of amendment to the contract to increase prohibition. In addition, as part of the Regulation S–K under the Federal the amount payable, accelerate any conditions to a TARP recipient’s securities laws (17 CFR 229.402(a)). vesting conditions, or otherwise receiving financial assistance under the This is necessary to avoid a failure to materially enhance the benefit available TARP set forth in the contract between comply with the Interim Final Rule, for to the employee under the contract will Treasury and the TARP recipient, the instance, if other aspects of the result in the payment being treated as Federal government may require that employee’s annual compensation not made under the employment certain other bonus, retention award, or decrease in a subsequent year, so that if contract executed on or before February incentive compensation not be paid the grant were included in 11, 2009. The waiver by the employee during a designated period, such as the compensation over multiple years, the of any benefits available to the period during which the TARP recipient one-third annual compensation limit employee under the terms of the retains any financial assistance could be exceeded merely due to such contract will not result in the payment provided under TARP, or until some decrease. of other benefits under the contract other condition related to the TARP Pursuant to section 111(b)(3)(D)(i)(II), being treated as made other than under recipient’s financial health is satisfied. § 30.10 (Q–10) of the Interim Final Rule the employment contract executed on or The issue has arisen as to whether the states that the excepted long-term before February 11, 2009. failure to pay such bonus, retention restricted stock must not fully vest until Whether an employee has accrued award, or incentive compensation the repayment of all financial assistance bonus, retention award, or incentive would be treated as a subsequent by the TARP recipient. Section 30.10 compensation is determined based on deferral election that fails to comply (Q–10) of the Interim Final Rule the facts and circumstances. However, with the requirements of section 409A requires that the employee provide to avoid circumvention of the Interim of the Internal Revenue Code (26 U.S.C. services to the TARP recipient for at Final Rule by merely delaying bonus 409A) or whether it would convert a least two years after the date of the grant payments until after the employee is no payment that would otherwise be a of the long-term restricted stock to vest longer subject to the prohibition, or short-term deferral, within the meaning in this stock, and prescribes a schedule granting retroactive service credits after of 26 CFR 1.409A–1(b)(4), into a under which such stock may become the employee is no longer subject to the payment of deferred compensation that transferable (or in the case of a restricted prohibition, if after the employee is no would be subject to the restrictions in stock unit, payable). Specifically, longer a SEO or most highly section 409A. Treasury and Internal Section 30.10 (Q–10) of the Interim compensated employee, the employee is Revenue Service officials have advised Final Rule establishes the following paid an amount, or provided a legally that the delay of the payment until such schedule, subject to the further binding right to the payment of an time as the recipient of the payment is requirements outlined below, for the amount, based upon services performed no longer subject to the prohibition will long-term restricted stock: For each 25% or compensation received during the not result in a failure to comply with the of total financial assistance repaid, 25% period the employee was a SEO or most requirements of section 409A and will of the total long-term restricted stock highly compensated employee, the not result in a payment that otherwise granted may become transferable, until employee will be treated as having would have been a short-term deferral the final repayment, at which time the accrued the amount during the period being treated as a payment of deferred remaining long-term restricted stock the employee was a SEO or most highly compensation, so long as the payment is may become transferable. Because, in compensated employee. made promptly following the first date the case of restricted stock (but not a Certain bonus, retention award, or upon which the payment could be made restricted stock unit), the fair market incentive compensation may relate to a without violating the terms of the value of the stock may be subject to multi-year service period, during some agreement between the TARP recipient inclusion in income for income tax portion of which the employee is and Treasury and in accordance with purposes before the stock becomes subject to the prohibition and during the Interim Final Rule. Accordingly, for transferable, an exception to the some portion of which the employee is purposes of the issuance of a restricted transferability restriction is provided to not subject to the prohibition. In such stock unit intended to qualify as long- the extent necessary to pay the circumstances, the employee will not be term restricted stock as an exception to applicable taxes. Nothing in the Interim treated as having accrued the bonus, the bonus payment limitation, the unit Final Rule, however, prohibits vesting retention award, or incentive based on longer service periods or compensation during the portion of the may be structured with a payment date additional performance-based service period the employee was subject no later than the later of the end of the requirements. to the limitation, if the bonus, retention short-term deferral period or the first Pursuant to section 111(b)(3)(D)(iii), award, or incentive compensation is date upon which the payment is § 30.10 (Q–10) of the Interim Final Rule reduced to reflect at least the portion of permissible under these rules and the also excludes from this prohibition any the service period that the employee applicable terms of the agreement bonus, retention award, or incentive was subject to the prohibition. However, between the TARP recipient and compensation payment required to be if the employee is subject to the Treasury, and the unit will not be paid under a valid written employment prohibition at the time the amount subject to section 409A provided the contract executed on or before February would otherwise be paid, the amount payment terms are satisfied. 11, 2009 if the employee has a legally still may not be paid until the payments Pursuant to section 111(d), § 30.12 binding right under the contract to this to the employee are permitted. (Q–12) of the Interim Final Rule payment. For purposes of determining A bonus, a retention award, or requires that the board of directors of whether an employee had a legally incentive compensation that an the TARP recipient adopt an excessive binding right to a payment, the Interim employee accrues while the employee is or luxury expenditures policy, file this Final Rule uses rules specified in 26 not subject to the prohibition on accrual policy with Treasury, and post the text CFR 1.409A–1(b)(1). In addition, the or payment and is payable at a time of this policy on its Internet Web site, payment must be made in accordance when the employee has become subject if the TARP recipient maintains a with the terms of the contract as of to the prohibition, may not be paid until company Web site, before the later of February 11, 2009, such that any the employee is no longer subject to the ninety days after the closing date of the

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agreement between Treasury and the subject to the bonus payment limitation, compensation committee directly TARP recipient or ninety days after June and the compensation structures of all engages the compensation consultant; 15, 2009. Section 30.1 (Q–1) of the other executive officers and 100 most the nature and scope of the Interim Final Rule defines an excessive highly compensated employees, for compensation consultant’s assignment; or luxury expenditures policy to require approval by the Office of the Special and the material elements of the the inclusion of standards to ensure Master for TARP Executive compensation consultant’s duties under appropriate review and approval of Compensation. However, if a TARP the engagement. potentially excessive and luxury recipient limits the annual Fourth, § 30.11(d) (Q–11) of the expenditures. Section 30.1 (Q–1) of the compensation for any executive who is Interim Final Rule prohibits TARP Interim Final Rule requires that the not a SEO or a most highly compensated recipients from providing tax gross-ups policy (1) Identify the types and employee subject to the bonus or other reimbursements for the categories of expenses prohibited or limitation provision to $500,000, with payment of taxes to any of the SEOs and requiring prior approval; (2) adopt any additional compensation in long- next twenty most highly compensated approval procedures for those expenses term restricted stock, the compensation employees relating to severance requiring prior approval; (3) mandate structure is not required to be submitted payments, perquisites, or any other form PEO and PFO certification of the prior for approval. For this purpose, annual of compensation. Existing Federal approval of any expenditures requiring compensation and the value of the long- securities regulations require only that the prior approval of any SEO, other term restricted stock are determined in public companies disclose ‘‘gross-ups’’ similar executive officers, or the board the same manner as provided in the or other reimbursements to the SEOs for of directors; (4) mandate prompt long-term stock exception in § 30.10 (Q– the payment of taxes. The Interim Final internal reporting of any violation of 10) of the Interim Final Rule. Rule excludes from this prohibition this policy; and (5) mandate Second, § 30.11(b) (Q–11) of the certain international tax equalization accountability for adherence to this Interim Final Rule requires a TARP arrangements intended to compensate policy. recipient to disclose to Treasury and its an employee for certain different taxes Section 30.12 (Q–12) of the Interim primary Federal regulator annually any on account of an overseas assignment. Final Rule requires that the board of perquisites whose total value exceeds Section 30.14 (Q–14) of the Interim directors of each TARP recipient $25,000 for any employee who is subject Final Rule includes a special rule for determine what are excessive and to the limitations on bonus payments. cases in which a TARP recipient (target) luxury expenditures and establish a set TARP recipients are required to identify is acquired by an entity (acquirer) that of requirements specific to the TARP the amount and nature of the perquisites is not a TARP recipient in an recipient under this policy. This is and disclose a justification for offering acquisition of any form. Under this rule, similar to the method by which public these perquisites. Existing Federal the acquirer does not become subject to companies adopted a code of ethics securities regulations require public section 111 of EESA as a result of the under section 406 of Sarbanes-Oxley. companies only to identify for any of acquisition. In addition, the employees Under the Federal securities regulations the top five executive officers or of the target who are SEOs or most promulgated under section 406 of members of the boards of directors the highly compensated employees subject Sarbanes-Oxley (17 CFR 229.406), the type of perquisite if the total value of all to section 111 immediately prior to the SEC presented a general framework for perquisites exceeds $10,000 for an acquisition who continue employment a code of ethics, but the public company individual officer or director; and the with the acquirer will no longer be itself was required to adopt standards value of any perquisite if the value subject to section 111 of EESA after the specific to the company using this exceeds the greater of $25,000 or 10% acquisition. However, if the primary general framework as a guide. of the total amount of perquisites for an purpose of the acquisition is to avoid or Pursuant to section 111(e), TARP individual officer or director. evade application of section 111 of recipients are required to permit a Third, § 30.11(c) (Q–11) of the Interim EESA, then the acquirer will be treated nonbinding shareholder resolution on Final Rule requires a TARP recipient to as a TARP recipient. For purposes of SEO compensation as provided disclose to Treasury and its primary determining the affected employees, the pursuant to the compensation Federal regulator annually whether the principal executive officer and the disclosure rules under the Federal TARP recipient, the board, or the principal financial officer of the post- securities laws. Section 111(e) compensation committee has engaged a acquisition acquirer are treated as SEOs. authorizes the SEC to promulgate any compensation consultant and all types For purposes of identifying the most necessary final rules or regulations of services the compensation consultant highly compensated employees, the relating to this requirement. The Interim or any of its affiliates has provided to acquirer employees and the pre- Final Rule requires TARP recipients to the TARP recipient, the board, or the acquisition target employees who are comply with any SEC guidance, rules, compensation committee during the employed at the acquirer (or anticipated or regulations promulgated with respect past three years, including any to be employed at the acquirer) are to section 111(e). ‘‘benchmarking’’ or comparisons aggregated and their most highly Pursuant to section 111(h), and employed to identify certain percentile compensated employee status section 111(b)(2), the Secretary is levels of compensation (for example, determined based upon the authorized to establish additional other peer group companies used for compensation earned during the most executive compensation and corporate benchmarking and a justification for recently completed fiscal year at either governance standards. The Secretary has using these companies, and the lowest the pre-acquisition acquirer or target, as determined to adopt four additional percentile level of other companies’ appropriate. standards. First, § 30.11(a) (Q–11) of the employee compensation considered for Pursuant to section 111(b)(4), § 30.15 Interim Final Rule requires that TARP compensation proposals). Existing (Q–15) of the Interim Final Rule recipients receiving exceptional Federal securities regulations require establishes a compliance reporting financial assistance submit for approval only that public companies identify regime relating to the executive the compensation payments and compensation consultants and their role compensation requirements set forth in compensation structures of the SEO and in setting executive and director the Interim Final Rule. The Interim most highly compensated employees compensation; whether the Final Rule requires that the PEO and the

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PFO of the TARP recipient provide the non-binding shareholder resolution on SEC pursuant to the Federal securities following certifications within ninety the SEO compensation disclosures laws provide these certifications on days of the completion of each fiscal provided under the Federal securities Exhibit 99.1 in their annual report on year any part of which is a TARP laws in accordance with any guidance, Form 10–K and to Treasury, and that a period: (1) The compensation committee rules, and regulations promulgated by TARP recipient that does not have has met at least every six months during the SEC; (10) the TARP recipient has securities registered with the SEC under the prior fiscal year with the senior risk adopted and maintains an excessive or the Federal securities laws provide officers of the TARP recipient to discuss luxury expenditures policy and has these certifications to its primary and evaluate SEO compensation plans provided this policy to Treasury in each regulatory agency and to Treasury. The and employee compensation plans and case in accordance with the TARP recipient must also preserve the risks these plans pose to the TARP requirements under the Interim Final appropriate documentation and records recipient; (2) the compensation Rule; (11) the TARP recipient will to substantiate each certification for no committee has identified and limited disclose the amount, nature, and less than six years after the date of the the features in the SEO compensation justification for the offering of any certification, the first two years in an plans that could lead SEOs to take perquisites whose total value exceeds easily accessible place, and must unnecessary or excessive risks that $25,000 for each of the employees furnish promptly to Treasury any could threaten the value of the TARP subject to the bonus payment documentation and records requested recipient, has identified any features in limitations; (12) the TARP recipient will by Treasury. the employee compensation plans that disclose whether the TARP recipient, Section 30.15 (Q–15) of the Interim Final Rule also affirms that any pose risks to the TARP recipient, and the board, or the compensation individual or entity making or providing has limited those features to ensure that committee has engaged a compensation false information or certifications to the TARP recipient is not unnecessarily consultant, and the services the Treasury pursuant to the Interim Final exposed to risks; (3) the compensation compensation consultant or any affiliate Rule or as required pursuant to this part committee has reviewed at least every provided; (13) the TARP recipient has may be subject to the criminal penalties six months the terms of each employee prohibited any tax gross-ups on under title 18 of the U.S. Code or other compensation plan and identified and compensation to the SEOs and the next twenty most highly compensated provision of Federal law. limited the features in the plan that To comply with EESA Section 111 could encourage the manipulation of employees; (14) the TARP recipient has substantially complied with any and this Interim Final Rule, TARP reported earnings of the TARP recipient recipients generally will need to modify to enhance the compensation of an compensation requirements set forth in the agreement between the TARP compensation structures. For a small employee; (4) the compensation number of TARP recipients—those recipient and the Treasury, as may have committee will certify to these reviews; receiving exceptional assistance—the been amended; (15) certain employees (5) the compensation committee will new compensation structures and named in the certification are the SEOs provide a narrative description of how compensation payments for SEOs and and most highly compensated it limited the features in (i) SEO the most highly paid employees are employees for the current fiscal year compensation plans that could lead subject to review and approval by the based on their compensation during the SEOs to take unnecessary and excessive Office of the Special Master for TARP prior fiscal year; and (16) the officer risks that could threaten the value of the Executive Compensation (described certifying understands that a knowing TARP recipient, (ii) employee below). In other instances, TARP and willful false or fraudulent statement compensation plans to ensure that the recipients may find it helpful to have TARP recipient is not unnecessarily made in connection with the guidance as to how the rules apply to exposed to risks, and (iii) employee certification may be punished by fine, their particular circumstances, or compensation plans that could imprisonment, or both (See, for example confirmation that their modified encourage the manipulation of reported 18 U.S.C. 1001). In addition, the PEO compensation arrangements are earnings of the TARP recipient to and the PFO of a TARP recipient compliant. In addition, under section enhance the compensation of an receiving exceptional financial 111(f), the Secretary is charged with employee; (6) the TARP recipient has assistance must certify that the TARP reviewing bonuses, retention awards, required that all bonuses, retention recipient has either limited annual and other compensation paid before awards, and incentive compensation of compensation to $500,000 (excluding February 17, 2009 to SEOs and the next the SEOs and next twenty most highly grants of long-term restricted stock but twenty most highly compensated compensated employees be subject to a including certain pension benefits and employees, and is required to determine provision for recovery or ‘‘clawback’’ by deferred compensation accruals whether any such payments were the TARP recipient if the payments otherwise excluded from annual inconsistent with the purposes of EESA were based on materially inaccurate compensation) for any executive officer section 111 or the TARP, or were financial statements or any other or one of the 100 most highly otherwise contrary to the public materially inaccurate performance compensated employees who is not interest. metric criteria; (7) the TARP recipient subject to the bonus payment To conduct these reviews most has prohibited any golden parachute limitations and has or will pay any efficiently, and to ensure that the rules payment to the SEOs and the next five additional compensation in the form of are applied consistently and equitably, most highly compensated employees; long-term restricted stock, or to the this Interim Final Rule establishes an (8) the TARP recipient has limited extent not so limited the TARP recipient Office of the Special Master for TARP bonuses, retention awards, and has had the compensation structure of Executive Compensation (Special incentive compensation paid to or those employees approved by the Office Master). As described in Section 30.16 accrued by employees to whom the of the Special Master for TARP (Q–16) of the Interim Final Rule, the bonus payment limitation applies; (9) Executive Compensation. Special Master will be appointed by, for a TARP recipient that has securities Section 30.15 (Q–15) of the Interim and serve at the pleasure of, the registered with the SEC under the Final Rule requires that TARP recipients Secretary. The Secretary may remove Federal securities laws, it will permit a that have securities registered with the the Special Master without notice,

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without cause, and before the naming of is inconsistent with the purposes of agreed prior to the enactment of ARRA any successor Special Master. The scope EESA section 111 or the TARP, or or the publication of this Interim Final of the Special Master’s authority and otherwise contrary to the public Rule also continue in effect. responsibility is limited to interest, or for compensation that was IV. Procedural Requirements compensation and corporate governance paid contrary to the requirements of matters under section 111 with respect EESA section 111 and this Interim Final Justification for Interim Rulemaking to TARP recipients, and the Special Rule. The Interim Final Rule is promulgated Master has no authority to provide Section 30.17 (Q–17) of the Interim pursuant to EESA, as amended, which guidance or review any submissions Final Rule states that the standards immediately provides for authority and with respect to matters other than under the Interim Final Rule are facilities that the Secretary can use to compensation and corporate governance effective upon June 15, 2009, except restore liquidity and stability to the matters under section 111, or to provide with respect to certain sections of the financial system of the United States. guidance or review any submissions ARRA amendments that were effective Specifically, the Interim Final Rule with respect to compensation or immediately upon enactment of the implements certain provisions of corporate governance matters of statute (for example, amended section section 111 of EESA, which directs employers that are not TARP recipients. 111(d) requiring a nonbinding Treasury to establish executive The Secretary has delegated to the shareholder vote on executive compensation and corporate governance Special Master the authority to (1) compensation). Accordingly, the bonus standards for entities receiving financial interpret the application of the payment limitations under the Interim assistance under the TARP. restrictions on executive compensation Final Rule will not apply to bonuses, To encourage entities to choose or and corporate governance requirements retention awards, and incentive continue to participate in the TARP, for TARP recipient employees under compensation paid or accrued by TARP those entities must have timely and EESA, these regulations, and any other recipients or their employees prior to reliable information with respect to the applicable guidance, to specific facts June 15, 2009, and the enhanced golden applicable executive compensation and and circumstances; (2) administer parachute prohibition will not apply to corporate governance rules that apply section 111(f) of EESA, which requires amounts paid prior to June 15, 2009. In under the TARP. Accordingly, because the Secretary to review bonuses, addition, as discussed above, the bonus of exigencies in the financial markets, retention awards, and other payment limitations under the Interim Treasury finds that it would be contrary compensation paid before February 17, Final Rule will not apply to bonuses, to the public interest, pursuant to 5 2009 to employees of each entity retention awards, and incentive U.S.C. 553(b)(B), to delay the issuance receiving TARP assistance, to determine compensation required to be paid of the Interim Final Rule pending an whether any such payments were pursuant to a written employment opportunity for public comment and inconsistent with the purposes of EESA contract executed on or before February good cause exists to dispense with this section 111 or the TARP, or otherwise 11, 2009 (a grandfathered arrangement), requirement. For the same reasons, contrary to the public interest, and that is paid on or after June 15, 2009. pursuant to 5 U.S.C. 553(d)(3), Treasury which further requires that, if the However, the Special Master may has determined that there is good cause Secretary makes such a determination, provide an advisory opinion on either or for the Interim Final Rule to become the Secretary seek to negotiate with the both of these categories of payments, effective immediately upon publication. stating whether such payments are TARP recipient and the employee for While the Interim Final Rule is effective consistent with ARRA or EESA, or appropriate reimbursements to the immediately upon publication, Treasury otherwise contrary to the public Federal Government with respect to is inviting public comment on the interest, under the same standards compensation or bonuses; (3) approve Interim Final Rule during a sixty-day applied to the Special Master’s review compensation payments to, and period and will consider all comments of compensation paid to certain compensation structures for, certain in developing a final rule. employees prior to the enactment date employees of TARP recipients receiving of ARRA, and may seek reimbursement Regulatory Planning and Review exceptional financial assistance; (4) of such payments where appropriate. provide opinions, as requested or The Interim Final Rule is designated Finally, the Special Master will take otherwise as appropriate, regarding as a ‘‘significant regulatory action’’ as into account any payment made prior to defined in Executive Order 12866. The payments to, or compensation structures June 15, 2009, or any payment made or for, other employees of TARP recipients; agency has not prepared a regulatory that may be made pursuant to a impact analysis consistent with the and (5) perform such other duties as the grandfathered arrangement, as part of Secretary may delegate from time to OMB Circular A–4 that examines the the Special Master’s review of the likely benefits and costs associated with time to the Special Master relating to compensation payments and structures executive compensation issues under this interim rule. The agency plans to required to be approved by the Special prepare such analysis when it the TARP, including the specific Master for certain employees of TARP application of any terms or conditions promulgates a final rule that will recipients receiving exceptional supersede this rulemaking. in a contract between the Treasury and assistance, and for any advisory opinion a TARP recipient. Section 30.16 (Q–16) the Special Master may issue with Regulatory Flexibility Act also outlines a set of principles that the respect to a compensation structure for, Because no notice of proposed Special Master is required to follow in or compensation payment to, a TARP rulemaking is required, the Interim conducting these reviews. recipient employee. Final Rule is not subject to the Treasury requests comments on In addition, for the period before June provisions of the Regulatory Flexibility potential procedures and terms under 15, 2009, the provisions of the October Act (5 U.S.C chapter 6). which employees may return 2008 Interim Final Rule, Notice 2008– compensation to the TARP recipient or PSSFI, and Notice 2008–TAAP, Paperwork Reduction Act the TARP recipient may reimburse remained in effect. Subject to ARRA and The information collection contained Treasury either for compensation paid this Interim Final Rule, all contractual in the Interim Final Rule has been that the Special Master has determined provisions to which a TARP recipient submitted to the Office of Management

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and Budget (OMB) under the Paperwork plans do not encourage the manipulation means, except as otherwise explicitly Reduction Act (44 U.S.C. 35) and OMB of reported earnings of the TARP provided in this part, the dollar value approval is pending. Under the recipient to enhance the compensation of for total compensation for the applicable Paperwork Reduction Act, an agency any of the TARP recipient’s employees? fiscal year as determined pursuant to 30.7 Q–7: How does a TARP recipient may not conduct or sponsor, and an comply with the certification and Item 402(a) of Regulation S–K under the individual is not required to respond to, disclosure requirements under § 30.4 (Q– Federal securities laws (17 CFR a collection of information unless it 4) of this part? 229.402(a)). Accordingly, for this displays a valid OMB control number. 30.8 Q–8: What actions are necessary for a purpose the amounts required to be Comments on the collection of TARP recipient to comply with the disclosed pursuant to paragraph information should be sent to the Desk standards established under section (c)(2)(viii) of Item 402(a) of Regulation Officer for the Department of Treasury, 111(b)(3)(B) of EESA (the ‘‘clawback’’ S–K (actuarial increases in pension Office of Information and Regulatory provision requirement)? plans and above market earnings on 30.9 Q–9: What actions are necessary for a deferred compensation) are not required Affairs, Office of Management and TARP recipient to comply with the Budget, Washington, DC 20503 (or by e- standards established under section to be included in annual compensation. mail to [email protected]) 111(b)(3)(C) of EESA (the prohibition on (2) Application to private TARP with a copy to Executive Compensation golden parachute payments)? recipients. For purposes of determining Comments, Office of Financial 30.10 Q–10: What actions are necessary for annual compensation, a TARP recipient Institutions Policy, Room 1418, a TARP recipient to comply with section that does not have securities registered Department of the Treasury, 1500 111(b)(3)(D) of EESA (the limitation on with the SEC pursuant to the Federal Pennsylvania Avenue, NW., bonus payments)? securities laws must follow the Washington, DC 20220. 30.11 Q–11: Are TARP recipients required requirements set forth in paragraph (1) to meet any other standards under the of this definition. List of Subjects in 31 CFR Part 30 executive compensation and corporate ARRA. The term ‘‘ARRA’’ means the governance standards in section 111 of American Recovery and Reinvestment Executive compensation, Troubled EESA? assets. 30.12 Q–12: What actions are necessary for Act of 2009 (Pub. L. 111–5). ■ Accordingly, under the authority of 12 a TARP recipient to comply with section Benefit plan. The term ‘‘benefit plan’’ U.S.C. 5221, for the reasons set out in 111(d) of EESA (the excessive or luxury means any plan, contract, agreement or the preamble, Treasury amends 31 CFR expenditures policy requirement)? other arrangement that is an ‘‘employee Subtitle A by revising part 30 to read as 30.13 Q–13: What actions are necessary for welfare benefit plan’’ as that term is follows: a TARP recipient to comply with section defined in section 3(1) of the Employee 111(e) of EESA (the shareholder Retirement Income Security Act of 1974, PART 30—TARP STANDARDS FOR resolution on executive compensation as amended (29 U.S.C. 1002(1)), or other COMPENSATION AND CORPORATE requirement)? usual and customary plans such as 30.14 Q–14: How does section 111 of EESA GOVERNANCE dependent care, tuition reimbursement, operate in connection with an group legal services or cafeteria plans; acquisition, merger, or reorganization? Sec. provided, however, that this term does 30.0 Executive compensation and corporate 30.15 Q–15: What actions are necessary for a TARP recipient to comply with the not include: governance. (1) Any plan that is a deferred 30.1 Q–1: What definitions apply in this certification requirements of section 111(b)(4) of EESA? compensation plan; or part? (2) Any severance pay plan, whether 30.2 Q–2: To what entities does this part 30.16 Q–16: What is the Office of the apply? Special Master for TARP Executive or not nondiscriminatory, or any other 30.3 Q–3: How are the SEOs and the most Compensation, and what are its powers, arrangement that provides for payment highly compensated employees duties and responsibilities? of severance benefits to eligible identified for purposes of compliance 30.17 Q–17: How do the effective date employees upon voluntary termination with this part? provisions apply with respect to the for good reason, involuntary 30.4 Q–4: What actions are necessary for a requirements under section 111 of termination, or termination under a EESA? TARP recipient to comply with the window program as defined in 26 CFR standards established under sections Authority: 12 U.S.C. 5221; 31 U.S.C. 321. 1.409A–1(b)(9)(vi). 111(b)(3)(A), 111(b)(3)(E), 111(b)(3)(F) and 111(c) of EESA (evaluation of § 30.0 Executive compensation and Bonus. The term ‘‘bonus’’ means any employee plans and potential to corporate governance. payment in addition to any amount payable to an employee for services encourage excessive risk or manipulation The following questions and answers performed by the employee at a regular of earnings)? reflect the executive compensation and 30.5 Q–5: How does a TARP recipient hourly, daily, weekly, monthly, or corporate governance requirements of comply with the requirements under similar periodic rate. Such term section 111 of the Emergency Economic § 30.4 (Q–4) of this part that the generally does not include payments to Stabilization Act of 2008, as amended compensation committee discuss, or on behalf of an employee as (12 U.S.C. 5221) (EESA), with respect to evaluate, and review the SEO contributions to any qualified compensation plans and other employee participation in the Troubled Assets retirement plan (as defined in section compensation plans to ensure that the Relief Program (TARP) established by 4974(c) of the Internal Revenue Code SEO compensation plans do not the Department of the Treasury (26 U.S.C. 4974(c)), benefits under a encourage the SEOs to take unnecessary (Treasury) thereunder. and excessive risks that threaten the broad-based benefit plan, bona fide value of the TARP recipient, or that the § 30.1 Q–1: What definitions apply in this overtime pay, or bona fide and routine employee compensation plans pose part? expense reimbursements. In addition, unnecessary risks to the TARP recipient? Affiliate. The term ‘‘affiliate’’ means provided that the rate of commission is 30.6 Q–6: How does a TARP recipient pre-established and reasonable, and is comply with the requirement under an ‘‘affiliate’’ as that term is defined in § 30.4 (Q–4) of this part that the Rule 405 of the Securities Act of 1933 applied consistently to the sale of compensation committee discuss, (17 CFR 230.405). substantially similar goods or services, evaluate, and review the employee Annual compensation. (1) General commission compensation will not be compensation plans to ensure that these rule. The term ‘‘annual compensation’’ treated as a bonus. For this purpose, a

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bonus may include a contribution to, or substantial services from which primary duties consist of selling life other increase in benefits under, a commission compensation arises are insurance policies to customers unrelated to nonqualified deferred compensation provided, to unrelated customers by the the TARP recipient. Under a commission plan, regardless of when the actual service recipient, the sales and service program existing for all TARP Recipient payment will be made under the plan. arrangement and the commission employees selling life insurance policies as of February 17, 2009, Employee A is entitled A bonus may also qualify as a retention arrangement with respect to the related to receive an amount equal to 75% of the award or as incentive compensation. customer are bona fide, arise from the total first year’s premium paid by an Bonus payment. For purposes of this service recipient’s ordinary course of unrelated customer to whom Employee A has part, except where otherwise noted, the business, and are substantially the same, sold a life insurance policy. The payments to term ‘‘bonus payment’’ includes a both in term and in practice, as the Employee A under the program constitute payment that is, or is in the nature of, terms and practices applicable to commission compensation. a bonus, incentive compensation, or unrelated customers to which Example 2. The same facts as Example 1, retention award. Whether a payment is individually or in the aggregate except that under the program, the rate of a bonus payment, or whether the right substantial sales are made or substantial commission increases to 80% of the total first to a payment is a right to a bonus year’s premium paid by a customer once services provided by the service Employee A has sold $10 million in policies payment, is determined based upon all recipient; or in a year. Provided that 80% is a reasonable the facts and circumstances, and a (iii) Compensation or portions of commission, the payments to Employee A payment may be a bonus payment compensation earned by an employee under the program constitute commission regardless of the characterization of consistent with a program in existence compensation. such payment by the TARP recipient or for that type of employee as of February Example 3. Employee B is an employee of the employee. For purposes of this part, 17, 2009, if a substantial portion of the TARP recipient. Among TARP recipient’s a bonus payment may include the services provided by this employee to businesses is the investment management of forgiveness of a loan or other amount the TARP recipient consists of sales of unrelated customer asset accounts, and TARP that otherwise may be required to be financial products or other direct recipient provides such services routinely and in the ordinary course of business. paid by the employee to the employer. customer services with respect to Commission compensation. (1) Employee B’s primary duties as an employee unrelated customer assets or unrelated consist of managing the investments of the Definition. The term ‘‘commission customer asset accounts that are asset accounts of specified unrelated compensation’’ means: generally intended to be held customers who have deposited amounts with (i) Compensation or portions of indefinitely (and not customer assets the TARP recipient. Under a program in compensation earned by an employee intended to be used for a specific existence on February 17, 2009, Employee B consistent with a program in existence transaction, such as an initial public is entitled to receive an amount equal to 1% for that type of employee as of February offering, or sale or acquisition of a of the aggregate account balances of the 17, 2009, if a substantial portion of the specified entity or entities), the assets under management, as determined each December 31. The payments to services provided by this employee unrelated customer retains the right to consists of the direct sale of a product Employee B constitute commission terminate the customer relationship and compensation. or service to an unrelated customer, may move or liquidate the assets or these sales occur frequently and in the Example 4. TARP recipient employs asset accounts without undue delay Employee C. As part of Employee C’s duties, ordinary course of business of the TARP (which may be subject to a reasonable Employee C is responsible for specified recipient (but not a specified notice period), the compensation aspects of any acquisition of an unrelated transaction, such as an initial public consists of a portion of the value of the entity by TARP Recipient. As part of an offering or sale or acquisition of a unrelated customer’s overall assets or acquisition in 2009, Employee C is entitled specified entity or entities), the asset account balance, an amount to 1% of the purchase price if and when the transaction closes. Regardless of whether compensation paid by the TARP substantially all of which is calculated recipient to the employee consists of such an arrangement was customary or by reference to the increase in the value established under a specific program as of either a portion of the purchase price for of the overall assets or account balance the product or service sold to the February 17, 2009, the amount is not during a specified period, or both, or is unrelated customer or an amount commission compensation because the calculated by reference to a contractual compensation relates to a specified substantially all of which is calculated benchmark (such as a securities index or transaction, in this case the purchase of the by reference to the volume of sales to peer results), and the value of the entity. Accordingly, the compensation is the unrelated customers, and payment overall assets or account balance and incentive compensation. of the compensation is either contingent commission compensation is Example 5. TARP recipient employs upon the TARP recipient receiving Employee D. As part of Employee D’s duties, determined at least annually. For payment from the unrelated customer Employee D is responsible for managing the purposes of this definition, a customer for the product or service or, if applied initial public offerings of securities of is treated as an unrelated customer if the consistently to all similarly situated unrelated customers of TARP recipient. As person would not be treated as related employees, is contingent upon the part of an initial public offering in 2009, to the TARP recipient under 26 CFR Employee D is entitled to 1% of the purchase closing of the sales transaction and such 1.409A–1(f)(2)(ii) and the person would price if and when the initial public offering other requirements as may be specified not be treated as providing management closes. Regardless of whether such an by the TARP recipient before the closing services to the TARP recipient under 26 arrangement was customary or established of the sales transaction with the CFR 1.409A–1(f)(2)(iv). under a specific program as of February 17, unrelated customer; (2) Examples. The following examples 2009, the amount is not commission (ii) Compensation or portions of compensation because the compensation illustrate the provisions of paragraph (1) compensation earned by an employee relates to a specified transaction, in this case of this definition: that meet the requirements of paragraph the initial public offering. Accordingly, the (1)(i) of this definition except that the Example 1. Employee A is an employee of compensation is incentive compensation. TARP recipient. Among TARP recipient’s transaction occurs with a related businesses is the sale of life insurance Compensation means all customer, provided that substantial policies, and TARP recipient buys and sells remuneration for employment, sales from which commission such policies frequently as part of its including but not limited to salary, compensation arises are made, or ordinary course of business. Employee A’s commissions, tips, welfare benefits,

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retirement benefits, fringe benefits and that the assets of this trust may be Exceptional financial assistance. The perquisites. available to satisfy claims of the TARP term ‘‘exceptional financial assistance’’ Compensation committee. (1) General recipient’s creditors in the case of means any financial assistance provided rule. The term ‘‘compensation insolvency; or under the Programs for Systemically committee’’ means a committee of (2) A nonqualified deferred Significant Failing Institutions, the independent directors, whose compensation or supplemental Targeted Investment Program, the independence is determined pursuant to retirement plan, other than an elective Automotive Industry Financing Item 407(a) of Regulation S–K under the deferral plan established by a TARP Program, and any new program Federal securities laws (17 CFR recipient: designated by the Secretary as providing 229.407(a)). (i) Primarily for the purpose of exceptional financial assistance. (2) Application to private TARP providing benefits for a select group of Excessive or luxury expenditures. The recipients. For purposes of determining directors, management, or highly term ‘‘excessive or luxury expenditures’’ director independence, a TARP compensated employees in excess of the means excessive expenditures on any of recipient that does not have securities limitations on contributions and the following to the extent such registered with the SEC pursuant to the benefits imposed by sections 415, expenditures are not reasonable Federal securities laws must follow the 401(a)(17), 402(g) or any other expenditures for staff development, requirements set forth in Item applicable provision of the Internal reasonable performance incentives, or 407(a)(1)(ii) of Regulation S–K under the Revenue Code (26 U.S.C. 415, other similar reasonable measures Federal securities laws (17 CFR 401(a)(17), 402(g)); or conducted in the normal course of the 229.407(a)(1)(ii)). (ii) Primarily for the purpose for TARP recipient’s business operations: Compensation structure. The term providing supplemental retirement (1) Entertainment or events; ‘‘compensation structure’’ means the benefits or other deferred compensation (2) Office and facility renovations; characteristics of the various forms of for a select group of directors, (3) Aviation or other transportation total compensation that an employee management or highly compensated services; and receives or may receive, including the (4) Other similar items, activities, or employees (excluding severance amounts of such compensation or events for which the TARP recipient payments). potential compensation relative to the may reasonably anticipate incurring EESA. The term ‘‘EESA’’ means the amounts of other types of compensation expenses, or reimbursing an employee Emergency Economic Stabilization Act or potential compensation, the amounts for incurring expenses. of such compensation or potential of 2008, as amended. Excessive or luxury expenditures compensation relative to the total Employee. The term ‘‘employee’’ policy. The term ‘‘excessive or luxury compensation over the relevant period, means an individual serving as a servant expenditures policy’’ means written and how such various forms of in the conventional master-servant standards applicable to the TARP compensation interrelate to provide the relationship as understood by the recipient and its employees that address employee his or her ultimate total common-law agency doctrine. In the four categories of expenses set forth compensation. These characteristics general, a partner of a partnership, a in the definition of ‘‘excessive or luxury include, but are not limited to, whether member of a limited liability company, expenditures’’ (entertainment or events, the compensation is provided as salary, or other similar owner in a similar type office and facility renovations, aviation short-term incentive compensation, or of entity, will not be treated as an or other transportation services, and long-term incentive compensation, employee for this purpose. However, to other similar items, activities or events), whether the compensation is provided the extent that the primary purpose for and that are reasonably designed to as cash compensation, equity-based the creation or utilization of such eliminate excessive and luxury compensation, or other types of partnership, limited liability company, expenditures. Such written standards compensation (such as executive or other similar type of entity is to avoid must: pensions, other benefits or perquisites), or evade any or all of the requirements (1) Identify the types or categories of and whether the compensation is of section 111 of EESA or these expenditures which are prohibited provided as current compensation or regulations with respect to a partner, (which may include a threshold deferred compensation. member or other similar owner, the expenditure amount per item, activity, Deferred compensation plan. The partner, member or other similar owner or event or a threshold expenditure term ‘‘deferred compensation plan’’ will be treated as an employee. In amount per employee receiving the item means addition, a personal service corporation or participating in the activity or event); (1) Any plan, contract, agreement, or or similar intermediary between the (2) Identify the types or categories of other arrangement under which an TARP recipient and an individual expenditures for which prior approval is employee voluntarily elects to defer all providing services to the TARP required (which may include a or a portion of the reasonable recipient will be disregarded for threshold expenditure amount per item, compensation, wages, or fees paid for purposes of determining whether such activity, or event or a threshold services rendered which otherwise individual is an employee of the TARP expenditure amount per employee would have been paid to the employee recipient. receiving the item or participating in the at the time the services were rendered Employee compensation plan. The activity or event); (including a plan that provides for the term ‘‘employee compensation plan’’ (3) Provide reasonable approval crediting of a reasonable investment means ‘‘plan’’ as that term is defined in procedures under which an expenditure return on such elective deferrals), Item 402(a)(6)(ii) of Regulation S–K requiring prior approval may be provided that the TARP recipient either: under the Federal securities laws (17 approved; (i) Recognizes a compensation CFR 229.402(a)(6)(ii)), but only any (4) Require PEO and PFO certification expense and accrues a liability for the employee compensation plan in which that the approval of any expenditure benefit payments according to GAAP; or two or more employees participate and requiring the prior approval of any SEO, (ii) Segregates or otherwise sets aside without regard to whether an executive any executive officer of a substantially assets in a trust which may only be used officer participates in the employee similar level of responsibility, or the to pay plan and other benefits, except compensation plan. TARP recipient’s board of directors (or

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a committee of such board of directors), set forth in paragraph (1)(ii) of the definition reasonable period of time to be was properly obtained with respect to of ‘‘TARP recipient’’. GP is not an employee qualified) under section 401 of the each such expenditure; of LP C pursuant to the definition of Internal Revenue Code (26 U.S.C. 401) (5) Require the prompt internal ‘‘employee’’ in this rule, and is not treated as or pursuant to a pension or other reporting of violations to an appropriate the same employer as LP C according to the standards set forth in paragraph (1)(ii) of the retirement plan which is governed by person or persons identified in this definition of ‘‘TARP recipient’’. The the laws of any foreign country; policy; and investment advisor-contractor to LP C has not (ii) Any payment made by reason of (6) Mandate accountability for received financial assistance. Entities that the departure of the employee due to the adherence to this policy. sell securities to or buy securities from LP C employee’s death or disability; or Executive officer. The term ‘‘executive have neither sold troubled assets to Treasury (iii) Any severance or similar payment officer’’ means an ‘‘executive officer’’ as nor insured troubled assets through Treasury, which is required to be made pursuant that term is defined in Rule 3b-7 of the and therefore have not received financial to a State statute or foreign law Securities Exchange Act of 1934 assistance. (independent of any terms of a contract Example 4. Company D, a servicer of (Exchange Act) (17 CFR 240.3b-7). or other agreement) which is applicable Financial assistance. (1) Definition. mortgage loans or mortgaged-backed securities, issues a financial instrument to to all employers within the appropriate The term ‘‘financial assistance’’ means Treasury’s financial agent in which Company jurisdiction (with the exception of any funds or fund commitment D commits to modify mortgages it is servicing employers that may be exempt due to provided through the purchase of consistent with guidelines established by their small number of employees or troubled assets under the authority Treasury under the Home Affordable other similar criteria). granted to Treasury under section 101 of Modification Program. Treasury, through its (3) Payments for services performed or EESA or the insurance of troubled assets financial agent, commits to pay up to benefits accrued. (i) General rules. under the authority granted to Treasury $800,000,000 in incentive payments and Except as otherwise provided for credit enhancements for Company E’s under section 102 of EESA, provided payments made under a deferred that the term ‘‘financial assistance’’ does commitment to modify mortgages. Company E has not received financial assistance. compensation plan or a benefit plan in not include any loan modification under paragraph (4) of this definition, a sections 101 and 109 of EESA. A change GAAP. The term ‘‘GAAP’’ means U.S. payment made, or a right to a payment in the form of previously received generally accepted accounting arising under a plan, contract, financial assistance, such as a principles. agreement, or other arrangement Golden parachute payment. (1) conversion of convertible preferred (including the acceleration of any General rule. The term ‘‘golden stock to common stock, is not treated as vesting conditions) is for services parachute payment’’ means any new or additional financial assistance. performed or benefits accrued only if payment for the departure from a TARP (2) Examples. The following examples the payment was made, or the right to recipient for any reason, or any payment illustrate the provisions of paragraph (1) the payment arose, for current or prior due to a change in control of the TARP of this definition: services to the TARP recipient (except recipient or any entity that is included that an appropriate allowance may be Example 1. Company A sells $500,000,000 in a group of entities treated as one of preferred stock to Treasury through the made for services for a predecessor TARP recipient, except for payments for Capital Purchase Program. Company A has employer). Whether a payment is for services performed or benefits accrued. received financial assistance. services performed or benefits accrued For this purpose, a change in control Example 2. Company B posts collateral to is determined based on all the facts and includes any event that would qualify as and receives a loan from the Federal Reserve circumstances. However, a payment, or special purpose vehicle under the Term a change in control event as defined in a right to a payment, generally will be Asset-Backed Security Loan Facility program. 26 CFR 1.280G–1, Q&A–27 through treated as a payment for services Company B has neither sold troubled assets Q&A–29 or as a change in control event performed or benefits accrued only if to Treasury, nor insured troubled assets as defined in 26 CFR 1.409A–3(i)(5)(i). the payment would be made regardless through Treasury, and therefore has not For this purpose, a golden parachute received financial assistance. of whether the employee departs or the payment includes the acceleration of Example 3. LP C is a limited partnership change in control event occurs, or if the vesting due to the departure or the established for the purpose of participating in payment is due upon the departure of change in control event, as applicable. the Public Private Investment Program. LP C the employee, regardless of whether the A golden parachute payment is treated has a general partner (GP) that makes departure is voluntary or involuntary management decisions on behalf of LP C. A as paid at the time of departure or (other than reasonable restrictions, such limited liability company controlled by an change in control event, and is equal to as the forfeiture of the right to a affiliate of GP (LLC partner) raises the aggregate present value of all payment for an involuntary departure $55,000,000 from twenty investors, with each payments made for a departure or a for cause, but not restrictions relating to investing equal shares, joins LP C as a limited change in control event (including the partner, and invests those funds for a 55% whether the departure was a voluntary entire aggregate present value of the equity interest in LP C. LP C sells a departure for good reason or subsequent payment if the vesting period was not $45,000,000 equity interest to Treasury. LP C, to a change in control). at the direction of the GP, will buy and sell otherwise completed but was (ii) Examples. The following securities as investments and manage those accelerated due to departure, regardless examples illustrate the general rules in investments. LP C will contract for of whatever portion of the required paragraph (3)(i) of this definition: investment advice from an investment vesting period the employee had advisor that is an affiliate of GP. LP C has completed). Thus, a golden parachute Example 1. Employee A is a SEO of Entity received financial assistance. LLC partner has payment may include a right to amounts B at all relevant times. On September 1, 2007, received financial assistance because it is actually payable after the TARP period. Employee A received a stock appreciation treated as the same employer as LP C right granting him the right to appreciation according to the standards set forth in (2) Exclusions. For purposes of this on the underlying shares that would vest paragraph (1)(ii) of the definition of ‘‘TARP part, a golden parachute payment does 25% for every twelve months of continued recipient’’. The investors in the LLC partner not include any of the following: services. Under the terms of the grant, the have not received financial assistance (i) Any payment made pursuant to a stock appreciation right would be because they are not treated as the same pension or retirement plan which is immediately exercised and payable upon employer as LP C according to the standards qualified (or is intended within a termination of employment. Entity B

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becomes a TARP recipient in December 2008. trust may be available to satisfy claims offering or sale or acquisition of a On September 1, 2009, Entity B involuntarily of the TARP recipient’s creditors in the specified entity or entities, regardless of terminates Employee A, at which time case of insolvency and payments how such compensation is measured. Employee A receives a payment equal to the pursuant to the plan are not in excess For examples, see the definition of post-September 1, 2007 appreciation on 50% of the shares under the stock appreciation of the accrued liability computed in ‘‘commission compensation,’’ above. An right (the portion of the shares that had accordance with GAAP. incentive plan, or a grant under an vested before the termination of Gross-up. The term ‘‘gross-up’’ means incentive plan, may also qualify as a employment). The payment is treated as a any reimbursement of taxes owed with bonus or a retention award. payment for services performed and does not respect to any compensation, provided (2) Salary or other permissible constitute a golden parachute payment. that a gross-up does not include a payments paid in property. The term Example 2. The facts are the same as the payment under a tax equalization ‘‘incentive plan’’ does not include an facts in Example 1, except that under agreement, which is an agreement, arrangement under which an employee Employee A’s employment agreement, method, program, or other arrangement receives salary or another permissible Employee A is entitled to accelerate vesting that provides payments intended to payment in property, such as TARP if Employee A is terminated involuntarily other than for cause. If Entity B pays compensate an employee for some or all recipient stock, provided that such Employee A the post-September 1, 2007 of the excess of the taxes actually property is not subject to a substantial appreciation on 100% of the shares under the imposed by a foreign jurisdiction on the risk of forfeiture (as defined in 26 CFR stock appreciation right, the portion of the compensation paid by the TARP 1.83–3(c)) or other future period of payment representing the additional 50% recipient to the employee over the taxes required services, the amount of the accelerated vesting due to the termination of that would be imposed if the payment is determinable as a dollar employment would not be for services compensation were subject solely to amount through the date such performed and would be a golden parachute U.S. Federal, State, and local income compensation is earned (for example, an payment. tax, or some or all of the excess of the agreement that salary payments will be (4) Payments from benefit plans and U.S. Federal, State, and local income tax made in stock equal to the value of the deferred compensation plans. A actually imposed on the compensation cash payment that would otherwise be payment from a benefit plan or a paid by the TARP recipient to the due), and the amount of stock or other deferred compensation plan is treated as employee over the taxes that would be property accrues at the same time or a payment for services performed or imposed if the compensation were times as the salary or other permissible benefits accrued only if the following subject solely to taxes in the applicable payments would otherwise be paid in conditions are met: foreign jurisdiction, provided that the cash. The term ‘‘incentive plan’’ also (i) The plan was in effect at least one payment made under such agreement, does not include an arrangement under year prior to the employee’s departure; method, program, or other arrangement which an employee receives a restricted (ii) The payment is made pursuant to may not exceed such excess and the stock unit that is analogous to TARP the plan and is made in accordance with amount necessary to compensate for the recipient stock, that otherwise meets the the terms of the plan as in effect no later additional taxes on the amount paid requirements of the previous sentence. than one year before the departure and under the agreement, method, program, For this purpose, a unit is analogous to in accordance with any amendments to or other arrangement. stock if the unit is based upon stock of the plan during this one year period that Incentive compensation. The term the TARP recipient, or is applied as if do not increase the benefits payable ‘‘incentive compensation’’ means the applicable entity, division, or other hereunder; compensation provided under an unit were a corporation with one class (iii) The employee has a vested right, incentive plan. of stock and the number of units of as defined under the applicable plan Incentive plan. (1) Definition. The stock granted is determined based on a document, at the time of the departure term ‘‘incentive plan’’ means an fixed percentage of the overall value of or the change in control event (but not ‘‘incentive plan’’ as that term is defined this corporation, and the term ‘‘TARP due to the departure or the change in in Item 402(a)(6)(iii) of Regulation S–K recipient stock’’ with respect to a control event) to the payments under under the Federal securities laws (17 particular employee recipient means the the plan; CFR 229.402(a)(6)(iii)), and any plan stock of a corporation (or the entity, (iv) Benefits under the plan are providing stock or options as defined in division, or other unit the value of accrued each period only for current or Item 402(a)(6)(i) of Regulation S–K which forms the basis for the unit) that prior service rendered to the TARP under the Federal securities laws (17 is an ‘‘eligible issuer of service recipient recipient (except that an appropriate CFR 229.402(a)(6)(i)) or other equity- stock’’ under 26 CFR 1.409A– allowance may be made for service for based compensation such as restricted 1(b)(5)(iii)(E) (applied by analogy to a predecessor employer); stock units or stock appreciation rights, non-corporate entities). (v) Any payment made pursuant to except for the payment of salary or other (3) Examples. The following examples the plan is not based on any permissible payments in stock, stock illustrate the provisions of paragraph (2) discretionary acceleration of vesting or units, or other property as described in of this definition. accrual of benefits which occurs at any paragraph (2) of this definition. An Example 1. Employee is an employee of time later than one year before the incentive plan does not include the TARP recipient. For 2010, TARP recipient departure or the change in control payment of salary, but does include an agrees to pay a salary of $15,000, payable event; and arrangement under which an employee monthly. At each salary payment date (vi) With respect to payments under a would earn compensation in the nature Employee will receive a $10,000 payment in deferred compensation plan, the TARP of a commission, unless such cash, and be transferred a number of shares recipient has previously recognized compensation qualifies as commission of common stock of TARP recipient equal to compensation expense and accrued a compensation (as defined above). $5,000 divided by the fair market value of a liability for the benefit payments Accordingly, an incentive plan includes share of common stock on the salary payment date. The arrangement is for the payment of according to GAAP or segregated or an arrangement under which an salary, and is not an incentive plan. otherwise set aside assets in a trust employee receives compensation only Example 2. Same facts as Example 1, which may only be used to pay plan upon the completion of a specified except that pursuant to a valid elective benefits, except that the assets of this transaction, such as an initial public deferral election, Employee elects to defer

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20% of each salary payment into a includes a unit that is payable, or may count toward the percentages in the nonqualified deferred compensation plan. At be payable, in cash or stock, provided schedule above. each salary payment date Employee will that the value of the payment is equal (4) The employee must be required to receive an $8,000 payment in cash, be forfeit the restricted stock or restricted transferred a number of shares of common to the value of the underlying stock. stock of TARP recipient equal to $4,000 With respect to a specified division or stock unit if the employee does not divided by the fair market value of a share other unit within a TARP recipient or a continue performing substantial services of common stock on the salary payment date, TARP recipient that is not a stock for the TARP recipient for at least two and a $3,000 contribution to an account corporation, a unit analogous to years from the date of grant, other than under a nonqualified deferred compensation common stock may be used. For this due to the employee’s death or plan. The arrangement is for the payment of purpose, a unit is analogous to common disability, or a change in control event salary, and is not an incentive plan. stock if applied as if the entity, division, (as defined in 26 CFR 1.280G–1, Q&A– Example 3. Employee is an employee of or other unit were a corporation with 27 through Q&A–29 or as defined in 26 TARP recipient. For 2010, TARP recipient CFR 1.409A–3(i)(5)(i)) with respect to agrees to pay a salary of $15,000, payable one class of common stock and the monthly. At each salary payment date, number of units of common stock the TARP recipient before the second Employee will receive a $10,000 payment in granted is determined based on a fixed anniversary of the date of grant. cash, and accrue a right to a number of shares percentage of the overall value of this (5) Nothing in paragraphs (1), (2), (3), of common stock of TARP recipient equal to corporation. Notwithstanding the and (4) of this definition is intended to $5,000 divided by the fair market value of a foregoing, with respect to a particular prevent the placement on such share of common stock on the salary payment employee recipient, the corporation the restricted stock or restricted stock unit date. At the end of the year, TARP recipient stock of which is utilized (or the entity, of any additional restrictions, will transfer the total number of accrued division, or other unit the value of conditions, or limitations that are not shares to Employee, subject to a multi-year inconsistent with the requirements of holding period (a restriction that the shares which forms the basis for the unit) must be an ‘‘eligible issuer of service these paragraphs. may not be transferred or otherwise disposed Most highly compensated employee. of by Employee for a specified number of recipient stock’’ under 26 CFR 1.409A– (1) In general. The term ‘‘most highly years). If Employee’s employment with the 1(b)(5)(iii)(E) (applied by analogy to compensated employee’’ means the TARP recipient terminates during the non-corporate entities). employee of the TARP recipient, other holding period, the termination will not (2) The restricted stock or restricted affect the duration or application of the than the SEOs of the TARP recipient, stock unit may not become transferable holding period or Employee’s right to retain whose annual compensation is (as defined in 26 CFR 1.83–3(d)), or the shares and to transfer or otherwise determined to be the highest among all dispose of them at the end of the holding payable as applied to a restricted stock employees of the TARP recipient, period. The arrangement is for the payment unit, at any time earlier than permitted provided that, for this purpose, a former of salary, and is not an incentive plan. The under the following schedule (except as employee who is no longer employed as arrangement would also be for the payment necessary to reflect a merger or of salary, and not an incentive plan, if the of the first day of the relevant fiscal year acquisition of the TARP recipient): of the TARP recipient is not a most arrangement provided that the holding (i) 25% of the shares or units granted period was to last until the later of a highly compensated employee unless it specified time period or a specified time at the time of repayment of 25% of the is reasonably anticipated that such following Employee’s retirement or other aggregate financial assistance received. employee will return to employment termination of employment. (ii) An additional 25% of the shares with the TARP recipient during such Example 4. Employee is an employee of or units granted (for an aggregate total fiscal year. TARP recipient. For 2010, TARP recipient of 50% of the shares or units granted) (2) Application to new entities. For an agrees to pay a salary of $15,000, payable at the time of repayment of 50% of the entity that is created or organized in the monthly. At each salary payment date, aggregate financial assistance received. same year that the entity becomes a Employee will receive a $10,000 payment in (iii) An additional 25% of the shares cash, and accrue a right to a contribution to TARP recipient, a most highly an account equal to $5,000 divided by the or units granted (for an aggregate total compensated employee for the first year fair market value of a share on the salary of 75% of the shares or units granted) includes the person that the TARP payment date. The account balance will be at the time of repayment of 75% of the recipient determines will be the most subject to notional gains and losses based on aggregate financial assistance received. highly compensated employee for the the investment return on TARP recipient (iv) The remainder of the shares or next year based upon a reasonable, good common stock. The amount will be payable units granted at the time of repayment faith determination of the projected upon the last day of the second year of 100% of the aggregate financial immediately following the year the services annual compensation of such person are performed. The arrangement is for the assistance received. earned during that year. This payment of salary, and is not an incentive (3) Notwithstanding the foregoing, in determination must be made as of the plan. However, the arrangement generally the case of restricted stock for which the later of the date the entity is created or will provide deferred compensation for employee does not make an election organized or the date the entity becomes purposes of section 409A of the Internal under section 83(b) of the Internal a TARP recipient, and must be made Revenue Code. Revenue Code (26 U.S.C. 83(b)), at any only once. However, a person need not Internal Revenue Code. The term time beginning with the date upon yet be an employee to be treated as a ‘‘Internal Revenue Code’’ means the which the stock becomes substantially most highly compensated employee, if it Internal Revenue Code of 1986, as vested (as defined in 26 CFR 1.83–3(b)) is reasonably anticipated that the person amended. and ending on December 31 of the will become an employee of the TARP Long-term restricted stock. The term calendar year including that date, a recipient during the first year. ‘‘long-term restricted stock’’ means portion of the restricted stock may be Obligation. (1) Definition. The term restricted stock or restricted stock units made transferable as may reasonably be ‘‘obligation’’ means a requirement for, or that include the following features: required to pay the Federal, State, local, an ability of, a TARP recipient to repay (1) The restricted stock or restricted or foreign taxes that are anticipated to financial assistance received from stock units are issued with respect to apply to the income recognized due to Treasury, as provided in the terms of the common stock of the TARP recipient. this vesting, and the amounts made applicable financial instrument and For this purpose, a restricted stock unit transferable for this purpose shall not related agreements, through the

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repayment of a debt obligation or the ‘‘primary regulatory agency’’ means the accrued generally will not be a retention redemption or repurchase of an equity Treasury. award. However, to the extent the plan security, but not including warrants to Repayment. The term ‘‘repayment’’ is amended to materially enhance the purchase common stock of the TARP means satisfaction of an obligation. benefits provided under the plan or to recipient. Retention award. (1) General make such employee eligible to (2) Examples. The following examples definition. The term ‘‘retention award’’ participate in such plan, and such illustrate the provisions of paragraph (1) means any payment to an employee, benefits are subject to a requirement of of this definition. other than a payment of commission a continued period of service, such an compensation, a payment made amendment generally will be a retention Example 1. TARP recipient sells $500 pursuant to a pension or retirement plan million of preferred stock to Treasury, and award. provides warrants to Treasury for the which is qualified (or is intended within SEC. The term ‘‘SEC’’ means the U.S. purchase of $75 million of common stock. a reasonable period of time to be Securities and Exchange Commission. The TARP recipient has an ability to redeem qualified) under section 401 of the Senior executive officer or SEO. (1) the preferred stock and thus maintains an Internal Revenue Code (26 U.S.C. 401), General definition. The term ‘‘senior outstanding obligation to Treasury. a payment made pursuant to a benefit executive officer’’ or ‘‘SEO’’ means a Example 2. Same facts as Example 1, plan, or a payment of a fringe benefit, ‘‘named executive officer’’ as that term except that TARP recipient redeems the $500 overtime pay, or reasonable expense is determined pursuant to Instruction 1 million of preferred stock, so that Treasury reimbursement that: holds only the $75 million of warrants to to Item 402(a)(3) of Regulation S–K (i) Is not payable periodically to an under the Federal securities laws (17 purchase common stock outstanding. TARP employee for services performed by the CFR 229.402(a)) who is an employee of recipient does not maintain an outstanding employee at a regular hourly, daily, obligation to Treasury. the TARP recipient. weekly, monthly, or similar periodic Example 3. TARP recipient sells $120 (2) Application to smaller reporting rate (or would not be payable in such million of securities backed by Small company. A TARP recipient that is a manner absent an elective deferral Business Administration-guaranteed loans to smaller reporting company must election); Treasury through the Consumer and Business identify SEOs pursuant to paragraph (1) Lending initiative, and provides warrants to (ii) Is contingent on the completion of Treasury for the purchase of $10 million of a period of future service with the TARP of this definition. Such a TARP common stock. Because the TARP recipient recipient or the completion of a specific recipient must identify at least five does not as a result of this transaction owe project or other activity of the TARP SEOs, even if only three named a debt obligation or have a requirement or recipient; and executive officers are provided in the right to redeem or repurchase an equity (iii) Is not based on the performance disclosure pursuant to Item 402(m)(2) of security (other than the warrants to purchase of the employee (other than a Regulation S–K under the Federal common stock provided to the Treasury), the securities laws (17 CFR 229.402(m)(2)), TARP recipient does not have an outstanding requirement that the employee not be separated from employment for cause) provided that no employee must be obligation to Treasury as a result of this identified as a SEO if the employee’s transaction. or the business activities or value of the TARP recipient. total annual compensation does not PEO. The term ‘‘PEO’’ means the (2) New hires. With respect to newly exceed $100,000 as defined in Item principal executive officer or an hired employees, a payment that will be 402(a)(3)(1) of Regulation S–K under the employee acting in a similar capacity. made only if the new hire continues Federal securities laws (17 CFR Perquisite. The term ‘‘perquisite’’ providing services for a specified period 229.402(a)(3)(1)). means a ‘‘perquisite or other personal generally constitutes a retention award. (3) Application to private TARP benefit’’ the amount of which is For example, a signing bonus that must recipients. A TARP recipient that does required to be included in the amount be repaid unless the newly hired not have securities registered with the reported under Item 402(c)(2)(ix)(A) of employee completes a certain period of SEC pursuant to the Federal securities Regulation S–K under the Federal service is a retention award. Similarly, laws must identify SEOs in accordance securities laws (17 CFR a ‘‘make-whole’’ agreement under which with rules analogous to the rules in 229.402(c)(2)(ix)(A)) (Column (i) of the a newly hired employee is provided paragraph (1) of this definition. Summary Compensation Table (All benefits intended to make up for SEO compensation plan. The term Other Compensation)), modified to also benefits foregone at his former ‘‘SEO compensation plan’’ means include any such perquisite or other employer, where these new benefits are ‘‘plan’’ as that term is defined in Item personal benefit provided to a most subject to a continued service period 402(a)(6)(ii) of Regulation S–K under the highly compensated employee subject to vesting requirement (such as a Federal securities laws (17 CFR § 30.11(b) (Q–11). continuation of the vesting period at the 229.402(a)(6)(ii)), but only with regard PFO. The term ‘‘PFO’’ means the former employer), is a retention award. to a SEO compensation plan in which principal financial officer or an (3) Deferred compensation plans. a SEO participates. employee acting in a similar capacity. Whether a benefit under a deferred Senior risk officer. The term ‘‘senior Primary regulatory agency. The term compensation plan that is subject to a risk officer’’ means a senior risk ‘‘primary regulatory agency’’ means the service vesting period is a retention executive officer or employee acting in Federal regulatory agency that has award depends on all the facts and a similar capacity. primary supervisory authority over the circumstances. However, to the extent Smaller reporting company. The term TARP recipient. For a TARP recipient an employee continues to accrue, or ‘‘smaller reporting company’’ means a that is a State-chartered bank that does becomes eligible to accrue, a benefit ‘‘smaller reporting company’’ as that not have securities registered with the under a plan the benefits under which term is defined in Item 10(f) of SEC pursuant to the Federal securities have not been materially enhanced for Regulation S–K under the Federal laws, the primary regulatory agency is a significant period of time prior to the securities laws (17 CFR 229.10(f)). the TARP recipient’s primary Federal employee becoming an SEO or most Sunset date. The term ‘‘sunset date’’ banking regulator. If a TARP recipient is highly compensated employee means the date on which the authorities not subject to the supervision of a (including through expansion of the provided under EESA section 101 and Federal regulatory agency, the term eligibility for such plan), the benefits 102 terminate, pursuant to EESA section

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120, taking into account any extensions Treasury. The term ‘‘Treasury’’ means most highly compensated employees, pursuant to EESA section 120(b). the U.S. Department of the Treasury. the determination of whether an TARP. The term ‘‘TARP’’ means the Valid employment contract. The term employee is a most highly compensated Troubled Asset Relief Program, ‘‘valid employment contract’’ means a employee in a current fiscal year looks established pursuant to EESA. written employment contract that is: back to the annual compensation for the TARP fiscal year. The term ‘‘TARP (1)(i) A material contract as last completed fiscal year without fiscal year’’ means a fiscal year of a determined pursuant to Item regard to whether the compensation is TARP recipient, or the portion of a fiscal 601(b)(10)(iii)(A) of Regulation S–K includible in the employee’s gross year of a TARP recipient, that is also a under the Federal securities laws (17 income for Federal income tax TARP period. CFR 229.601(b)(10)(iii)(A)); or purposes. TARP period. The term ‘‘TARP (ii) A contract that would be deemed (b) Compliance. Regardless of when period’’ means the period beginning a material contract as determined during the current fiscal year the TARP with the TARP recipient’s receipt of any pursuant to Item 601(b)(10)(iii) of recipient determines the SEOs or the financial assistance and ending on the Regulation S–K under the Federal most highly compensated employees, last date upon which any obligation securities laws (17 CFR the TARP recipient must ensure that arising from financial assistance 229.601(b)(10)(iii)), but for the fact that any of the SEOs or employees remains outstanding (disregarding any the material contract relates to one or potentially subject to the requirements warrants to purchase common stock of more employee who is not an executive in this part for the current fiscal year the TARP recipient that the Treasury officer; and complies with the requirements in this may hold). (2) Is enforceable under the law of the part as applicable. TARP recipient. (1) General applicable jurisdiction. § 30.4 Q–4: What actions are necessary for definition. The term ‘‘TARP recipient’’ § 30.2 Q–2: To what entities does this part a TARP recipient to comply with the means apply? standards established under sections (i) Any entity that has received or This part applies to any TARP 111(b)(3)(A), 111(b)(3)(E), 111(b)(3)(F) and holds a commitment to receive financial 111(c) of EESA (evaluation of employee recipient, provided that the assistance; and plans and potential to encourage excessive requirements of sections 111(b) (ii) Any entity that would be treated risk or manipulation of earnings)? (portions of § 30.4 (Q–4), § 30.5 (Q–5) as the same employer as an entity and § 30.7 (Q–7), as applicable, § 30.6 (a) General rule. To comply with the receiving financial assistance based on (Q–6), and § 30.8 (Q–8) through § 30.11 standards established under sections the rules in sections 414(b) and 414(c) (Q–11), and § 30.15 (Q–15)), and section 111(b)(3)(A), 111(b)(3)(E), 111(b)(3)(F) of the Internal Revenue Code (26 U.S.C. 111(e) (§ 30.13 (Q–13)) apply only and 111(c) of EESA, a TARP recipient 414(b) or (c)), but modified by during the period during which any must establish a compensation substituting ‘‘50%’’ for ‘‘80%’’ in each obligation to the Federal government committee by the later of ninety days place it appears in section 414(b) or arising from financial assistance after the closing date of the agreement 414(c) and the accompanying provided under the TARP remains between the TARP recipient and regulations. However, for purposes of outstanding. The requirements of Treasury or September 14, 2009, and applying the aggregation rules to section 111(c) (including portions of maintain a compensation committee determine the applicable employer, the § 30.4 (Q–4), § 30.5 (Q–5) and § 30.7 (Q– during the remainder of the TARP rules for brother-sister controlled groups 7), as applicable) and section 111(d) period. If a compensation committee is and combined groups are disregarded (§ 30.12 (Q–12)) apply through the later already established before the later of (including disregarding the rules in of the last day of the period during the closing date or September 14, 2009, section 1563(a)(2) and (a)(3) of the which any obligation to the Federal the TARP recipient must maintain its Internal Revenue Code (26 U.S.C. government arising from financial compensation committee. During the 1563(a)(2) and (a)(3)) with respect to assistance provided under the TARP remainder of the TARP period after the corporations and the parallel rules that remains outstanding for TARP later of ninety days after the closing date are in 26 CFR 1.414(c)–2(c) with respect recipients with an obligation, or the last of the agreement between the TARP to other organizations conducting trades day of the TARP recipient’s fiscal year recipient and Treasury or September 14, or businesses). including the sunset date for a TARP 2009, the compensation committee (2) Certain excluded entities. Neither recipient that has never had an must: any entity receiving funds under TARP obligation. For this purpose, an (1) Discuss, evaluate, and review at pursuant to section 109 of EESA nor any obligation includes the ownership by least every six months with the TARP Federal Reserve bank as that term is the Federal government of common recipient’s senior risk officers the SEO used in the Federal Reserve Act (12 stock of a TARP recipient. compensation plans to ensure that the U.S.C. 221 et seq.) will be treated as a SEO compensation plans do not TARP recipient subject to section 111 of § 30.3 Q–3: How are the SEOs and most encourage SEOs to take unnecessary and EESA and any rules and regulations highly compensated employees identified excessive risks that threaten the value of promulgated thereunder. for purposes of compliance with this part? the TARP recipient; (3) Anti-abuse rule. Notwithstanding (a) Identification. The SEOs for a year (2) Discuss, evaluate, and review with paragraph (1) of this definition, the term are the ‘‘named executive officers’’ who senior risk officers at least every six ‘‘TARP recipient’’ means any entity that are employees and are identified in the months employee compensation plans has received, or holds a commitment to TARP recipient’s annual report on Form in light of the risks posed to the TARP receive, financial assistance; and any 10–K or annual meeting proxy statement recipient by such plans and how to limit entity related to such TARP recipient to for that year (reporting the SEOs’ such risks; the extent that the primary purpose for compensation for the immediately (3) Discuss, evaluate, and review at the creation or utilization of such entity preceding year). These employees are least every six months the employee is to avoid or evade any or all of the considered the SEOs throughout that compensation plans of the TARP requirements of section 111 of EESA or entire year. For purposes of the recipient to ensure that these plans do these regulations. standards in this part applicable to the not encourage the manipulation of

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reported earnings of the TARP recipient and during subsequent years of the § 30.7 Q–7: How does a TARP recipient to enhance the compensation of any of TARP period. comply with the certification and disclosure the TARP recipient’s employees; requirements under § 30.4 (Q–4) of this (d) Application to TARP recipients part? (4) At least once per TARP recipient that have never had an outstanding (a) Certification. The compensation fiscal year, provide a narrative obligation. For TARP recipients that committee must provide the description of how the SEO have never had an outstanding certifications required by § 30.4 (Q–4) of compensation plans do not encourage obligation, only paragraphs (a)(2), (a)(4), this part stating that it has reviewed, the SEOs to take unnecessary and (a)(5) (but for the narrative and excessive risks that threaten the value of with the TARP recipient’s senior risk certification requirements of (a)(4) and officers, the SEO compensation plans to the TARP recipient, including how (a)(5), applied only to the requirements these SEO compensation plans do not ensure that these plans do not of paragraph (a)(2)), (b) and (c) of this encourage SEOs to take unnecessary and encourage behavior focused on short- § 30.4 (Q–4) shall apply. term results rather than long-term value excessive risks, the employee creation, the risks posed by employee § 30.5 Q–5: How does a TARP recipient compensation plans to limit any unnecessary risks these plans pose to compensation plans and how these risks comply with the requirements under § 30.4 (Q–4) of this part that the compensation the TARP recipient, and the employee were limited, including how these committee discuss, evaluate, and review compensation plans to eliminate any employee compensation plans do not the SEO compensation plans and employee features of these plans that would encourage behavior focused on short- compensation plans to ensure that the SEO encourage the manipulation of reported term results rather than long-term value compensation plans do not encourage the earnings of the TARP recipient to creation, and how the TARP recipient SEOs to take unnecessary and excessive enhance the compensation of any has ensured that the employee risks that threaten the value of the TARP employee. For any period during which compensation plans do not encourage recipient, or that the employee no obligation arising from financial the manipulation of reported earnings of compensation plans do not pose assistance provided under the TARP the TARP recipient to enhance the unnecessary risks to the TARP recipient? remains outstanding, the requirements compensation of any of the TARP At least every six months, the under this paragraph shall be modified recipient’s employees; and compensation committee must discuss, to be consistent with § 30.4(d) (Q–4(d)). (5) Certify the completion of the evaluate, and review with the TARP Providing a statement similar to the reviews of the SEO compensation plans recipient’s senior risk officers any risks following and in the manner provided and employee compensation plans (including long-term as well as short- in paragraphs (c) and (d) of this section, required under paragraphs (a)(1), (2), term risks) that the TARP recipient faces as applicable, would satisfy this and (3) of this section. that could threaten the value of the standard: ‘‘The compensation (b) Exclusion of TARP recipients with TARP recipient. The compensation committee certifies that: no employees or no affected employees. committee must identify the features in (1) It has reviewed with senior risk For any period during which a TARP the TARP recipient’s SEO compensation officers the senior executive officer recipient has no employees, or has no plans that could lead SEOs to take these (SEO) compensation plans and has SEO or compensation plan subject to the risks and the features in the employee made all reasonable efforts to ensure review process, the TARP recipient is compensation plans that pose risks to that these plans do not encourage SEOs not subject to the requirements of the TARP recipient, including any to take unnecessary and excessive risks paragraph (a) of this section. features in the SEO compensation plans that threaten the value of [identify (c) Application to private TARP and the employee compensation plans TARP recipient]; recipients. The rules provided in that would encourage behavior focused (2) It has reviewed with senior risk paragraph (a) of this section are also on short-term results and not on long- officers the employee compensation applicable to TARP recipients that do term value creation. The compensation plans and has made all reasonable not have securities registered with the committed is required to limit these efforts to limit any unnecessary risks SEC pursuant to the Federal securities features to ensure that the SEOs are not these plans pose to the [identify TARP laws. A TARP recipient that does not encouraged to take risks that are recipient]; and have securities registered with the SEC unnecessary or excessive and that the (3) It has reviewed the employee pursuant to the Federal securities laws TARP recipient is not unnecessarily compensation plans to eliminate any and has received $25,000,000 or less in exposed to risks. features of these plans that would financial assistance is subject to § 30.6 Q–6: How does a TARP recipient encourage the manipulation of reported paragraph (a) of this section, except that, comply with the requirement under § 30.4 earnings of [identify TARP recipient] to in lieu of establishing and maintaining (Q–4) of this part that the compensation enhance the compensation of any a compensation committee, such a committee discuss, evaluate, and review employee.’’ TARP recipient is permitted to ensure the employee compensation plans to (b) Disclosure. At least once per TARP that all the members of the board of ensure that these plans do not encourage recipient fiscal year, the compensation directors carry out the duties of the the manipulation of reported earnings of the committee must provide a narrative compensation committee as described TARP recipient to enhance the description identifying each SEO in paragraph (a) of this section. compensation of any of the TARP compensation plan and explaining how However, such a TARP recipient will be recipient’s employees? the SEO compensation plan does not required to establish and maintain a The compensation committee must encourage the SEOs to take unnecessary compensation committee satisfying the discuss, evaluate, and review at least and excessive risks that threaten the requirements of paragraph (a) of this every six months the terms of each value of the TARP recipient. The section for the first fiscal year following employee compensation plan and compensation committee must also a fiscal year during which the TARP identify and eliminate the features in identify each employee compensation recipient either registers securities with these plans that could encourage the plan, explain how any unnecessary risks the SEC pursuant to the Federal manipulation of reported earnings of the posed by the employee compensation securities laws or has received more TARP recipient to enhance the plan have been limited, and further than $25,000,000 in financial assistance, compensation of any employee. explain how the employee

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compensation plan does not encourage recipient if the bonus payment was payment of three times his annual the manipulation of reported earnings to based on materially inaccurate financial compensation upon an involuntary enhance the compensation of any statements (which includes, but is not termination of employment or voluntary employee. limited to, statements of earnings, termination of employment for good reason, but such amount is not payable unless and (c) Location. For TARP recipients revenues, or gains) or any other until the TARP period expires with respect with securities registered with the SEC materially inaccurate performance to TARP recipient. Employee A terminates pursuant to the Federal securities law, metric criteria. Whether a financial employment during the TARP period. the compensation committee must statement or performance metric criteria Because, for purposes of the prohibition on provide these certifications and is materially inaccurate depends on all golden parachute payments, the payment is disclosures in the Compensation the facts and circumstances. However, made at the time of departure, Employee A Committee Report required pursuant to for this purpose, a financial statement or may not obtain the right to the payment upon Item 407(e) of Regulation S–K under the performance metric criteria shall be the termination of employment. Federal securities laws (17 CFR treated as materially inaccurate with Example 2. Employee B involuntarily terminated employment on July 1, 2008, at 229.407(e)) and to Treasury. These respect to any employee who knowingly which time Employee B was a SEO of a disclosures must be provided in the engaged in providing inaccurate financial institution. Employee B’s Compensation Committee Report for information (including knowingly employment agreement provided that if any disclosure pertaining to any fiscal failing to timely correct inaccurate Employee B were involuntarily terminated or year any portion of which is a TARP information) relating to those financial voluntarily terminated employment for good period (for a TARP recipient with an statements or performance metrics. reason, Employee B would be entitled to a obligation), or for any disclosure Otherwise, with respect to a series of five equal annual payments. After pertaining to any fiscal year including a performance criteria, whether the the first payment, but before any subsequent inaccurate measurement of the payment, the entity became a TARP date on or before the sunset date (for a recipient. Because, for purposes of the TARP recipient that has never had an performance or inaccurate application prohibition on golden parachute payments, obligation). Within 120 days of the of the performance to the performance all of the five payments are deemed to have completion of a fiscal year during any criteria is material depends on whether occurred at termination of employment and part of which is a TARP period (for a the actual performance or accurate because, in this case, termination of TARP recipient with an obligation), or application of the actual performance to employment occurred before the beginning of the completion of a fiscal year including the performance criteria is materially the applicable TARP period, the payment of a date on or before the sunset date (for different from the performance required the four remaining payments due under the under the performance criteria or the agreement will not violate the requirements a TARP recipient that has never had an of this section. obligation), a TARP recipient that is a inaccurate application of the actual smaller reporting company must performance to the performance criteria. § 30.10 Q–10: What actions are necessary provide the certifications of the The TARP recipient must exercise its for a TARP recipient to comply with section compensation committee to its primary clawback rights except to the extent it 111(b)(3)(D) of EESA (the limitations on regulatory agency and to Treasury. demonstrates that it is unreasonable to bonus payments)? (d) Application to private TARP do so, such as, for example, if the (a) General rule. To comply with recipients. The rules provided in expense of enforcing the rights would section 111(b)(3)(D) of EESA, pursuant paragraphs (a), (b), and (c) of this exceed the amount recovered. For the to the schedule under paragraph (b) of section are also applicable to TARP purpose of this section, a bonus this section and subject to the recipients that do not have securities payment is deemed to be made to an exclusions under paragraph (e) of this registered with the SEC pursuant to the individual when the individual obtains section, a TARP recipient must prohibit Federal securities laws. Within 120 days a legally binding right to that payment. the payment or accrual of any bonus of the completion of the fiscal year payment during the TARP period to or § 30.9 Q–9: What actions are necessary for by the employees identified pursuant to during any part of which is a TARP a TARP recipient to comply with the period (for a TARP recipient with an paragraph (b) of this section. standards established under section (b)(1) Schedule. The prohibition obligation), or the completion of a fiscal 111(b)(3)(C) of EESA (the prohibition on year including a date on or before the golden parachute payments)? required under paragraph (a) of this section applies as follows to: sunset date (for a TARP recipient that (a) Prohibition on golden parachute has never had an obligation), a private (i) The most highly compensated payments. To comply with the employee of any TARP recipient TARP recipient must provide the standards established under section certification of the compensation receiving less than $25,000,000 in 111(b)(3)(C) of EESA, a TARP recipient financial assistance; committee (or board of directors, as must prohibit any golden parachute applicable under § 30.4 (Q–4)) to its (ii) At least the five most highly payment to a SEO and any of the next compensated employees of any TARP primary regulatory agency and to five most highly compensated Treasury. recipient receiving $25,000,000 but less employees during the TARP period. A than $250,000,000 in financial § 30.8 Q–8: What actions are necessary for golden parachute payment is treated as assistance; a TARP recipient to comply with the paid at the time of departure and is (iii) The SEOs and at least the ten next standards established under section equal to the aggregate present value of most highly compensated employees of 111(b)(3)(B) of EESA (the ‘‘clawback’’ all payments made for a departure. any TARP recipient receiving provision requirement)? Thus, a golden parachute payment $250,000,000 but less than $500,000,000 To comply with the standards during the TARP period may include a in financial assistance; and established under section 111(b)(3)(B) of right to amounts actually payable after (iv) The SEOs and at least the twenty EESA, a TARP recipient must ensure the TARP period. next most highly compensated that any bonus payment made to a SEO (b) Examples. The following examples employees of any TARP recipient or the next twenty most highly illustrate the provisions of paragraph (a) receiving $500,000,000 or more in compensated employees during the of this section: financial assistance. TARP period is subject to a provision Example 1. Employee A is a SEO of a (2) Changes in level of financial for recovery or ‘‘clawback’’ by the TARP TARP recipient. Employee A is entitled to a assistance. The determination of which

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schedule in paragraph (b) of this section services performed or compensation Employee A is granted a stock option under is applicable to a TARP recipient during received during the period the employee the TARP recipient stock incentive plan with the TARP period is determined by the was a SEO or most highly compensated a value approximately equal to the bonus that gross amount of all financial assistance would have been payable to Employee A in employee, the employee will be treated 2011 (for services performed in 2010), except provided to the TARP recipient, valued as having accrued such bonus payment for application of paragraph (a) of this at the time the financial assistance was during the period the employee was a section. Other similarly situated employee received. Whether a TARP recipient’s SEO or most highly compensated not covered by the bonus limitation for 2010 financial assistance has increased employee. For example, if the employee do not receive such a grant. Under these facts during a fiscal year to the point in the is retroactively granted service credit and circumstances, the stock option grant schedule under paragraph (b) of this under an incentive plan (whether for will be treated as a bonus payment accrued section that the SEOs or a greater vesting or benefit calculation purposes) in 2010 and will not be permitted to be paid number of the most highly compensated to Employee A. for the period in which the employee Example 4. Employee B is not a SEO or a employees will be subject to the was a SEO or most highly compensated most highly compensated employee of a requirements under paragraph (a) of this employee, the employee will be treated TARP recipient during 2009. On July 1, 2009, section is determined as of the last day as having accrued that benefit during Employee B is granted the right to a bonus of the TARP recipient’s fiscal year, and the period the employee was a SEO or payment of $50,000 if Employee B is the increase in coverage is effective for most highly compensated employee. employed by the TARP recipient through the subsequent fiscal year. (3) Multi-year service periods. Certain July 1, 2011 (two years). Employee B is a SEO (3) Application to first year of bonus payments may relate to a multi- of a TARP recipient during 2010, but is not financial assistance. For employers who a SEO or a most highly compensated year service period, during some portion employee of the TARP recipient during 2011. become TARP recipients after June 15, of which the employee is a SEO or most Employee B is employed by the TARP 2009, the bonus payment limitation highly compensated employee subject to recipient on July 1, 2011. Thus, Employee B provision under this paragraph (b) does paragraph (a) of this section, and during was a SEO or most highly compensated not apply to bonus payments paid or some portion of which the employee is employee during one-half of the two-year accrued by TARP recipients or their not. In these circumstances, the required service period. Provided that employees before the first date of the employee will not be treated as having Employee B is paid not more than half of the TARP period. Certain bonus payments accrued the bonus payment during the otherwise payable bonus payment, or $25,000, Employee B will not be treated as may relate to a service period beginning period the employee was a SEO or most before and ending after the first date of having accrued a bonus payment while highly compensated employee if the Employee B was a SEO or a most highly the TARP period. In these bonus payment is at least reduced to compensated employee. circumstances, the employee will not be reflect the portion of the service period treated as having accrued the bonus (e) Exclusions—(1) Long-term that the employee was a SEO or most restricted stock—(i) General rule. The payment on or after the first date of the highly compensated employee. If the TARP period if the bonus payment is TARP recipient is permitted to award employee is a SEO or most highly long-term restricted stock to the reduced to reflect at least the portion of compensated employee at the time the the service period that occurs on or after employees whose compensation is net bonus payment amount after such limited according to the schedule under the first date of the TARP period. reduction would otherwise be paid, the However, if the employee is a SEO or paragraph (b) of this section, provided amount still may not be paid until such that the value of this grant may not most highly compensated employee at time as bonus payments to that the time the amount would otherwise be exceed one third of the employee’s employee are permitted. annual compensation as determined for paid, the bonus payment amount as (d) Examples. The following examples that fiscal year (that is, not using the reduced in accordance with the illustrate the rules of paragraphs (a) look-back method for the prior year). previous sentence still may not be paid through (c) of this section: until such time as bonus payments to For purposes of this paragraph, in that employee are permitted. Example 1. Employee A is a SEO of a determining an employee’s annual (c) Accrual. (1) General rule. Whether TARP recipient in 2010, but not in 2011. The compensation, all equity-based TARP recipient maintains an annual bonus compensation granted in fiscal years an employee has accrued a bonus program, generally paying bonus payments in payment is determined based on the March of the following year. Employee A ending after June 15, 2009 will only be facts and circumstances. An accrual may not be paid a bonus payment in 2010 included in the calculation in the year may include the granting of service (for services performed in 2009 or any other in which it is granted at its total fair credit (whether toward the calculation year). In addition, Employee A may not be market value on the grant date, and all of the benefit or any vesting paid a bonus payment in 2011 to the extent equity-based compensation granted in requirement) or credit for the such bonus payment is based on services fiscal years ending prior to June 15, compensation received (or that performed in 2010. 2009 will not be included in the otherwise would have been received) Example 2. Same facts as in Example 1, calculation of annual compensation for provided further that Employee A receives a during the period the employee was salary increase for 2011. The salary increase any subsequent fiscal year. For purposes subject to the restriction under equals the same percentage as similarly of this paragraph, in determining the paragraph (a) of this section. For situated executive officers, with an value of the long-term restricted stock application of this rule to the fiscal year additional percentage increase which, over grant, the long-term restricted stock including June 15, 2009, see § 30.17 (Q– the course of twelve months, equals the granted in accordance with this 17). bonus that would have been payable to paragraph will only be included in the (2) Payments or accruals after the Employee A in 2011 (for services performed calculation in the year in which the employee is no longer a SEO or most in 2010), except for application of paragraph restricted stock is granted at its total fair highly compensated employee. If after (a) of this section. Under these facts and circumstances, the additional percentage market value on the grant date. the employee is no longer a SEO or most increase will be treated as a bonus payment (ii) Example. During 2008, Employee A highly compensated employee, the accrued in 2010 and Employee A may not be receives compensation of $1 million salary employee is paid a bonus payment or paid this bonus payment. and a $1,200,000 long-term restricted stock provided a legally binding right to a Example 3. Same facts as in Example 1, grant subject to a three-year vesting period. bonus payment that is based upon provided further that on March 1, 2011, During 2009, Employee A received

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compensation of $1 million salary and no vesting requirements or holding period meeting occurred in 2009 before August. grant of long-term restricted stock. During requirements will not result in this Regardless of the existence of the general 2010, Employee A receives compensation of treatment. The amended employment plan, no SEO had a legally binding right to $600,000 salary and a $300,000 long-term contract would still be deemed a valid a stock option grant for 2009 as of February restricted stock grant subject to a three-year 11, 2009 because no grants had been made vesting period. Under the general SEC employment contract and the employee under the plan. Accordingly, any 2009 grant compensation disclosure rules used to define would still be treated as having a legally will be subject to the limitation and is not annual compensation in § 30.1 (Q–1) of this binding right to the bonus payment permitted to be made. part, the compensation related to the long- under the original employment contract. Example 4. Employee D is an SEO of a term restricted stock grants would be The TARP recipient and the employees TARP recipient. Under Employee D’s written allocated over the vesting period. Assume for of the TARP recipient should be employment agreement executed before this purpose, that for 2010, $400,000 of the cognizant of the restrictions under February 11, 2009, Employee D is entitled to 2008 long-term restricted stock grant is section 409A of the Internal Revenue the total of whatever bonuses are made allocated as compensation, and $100,000 of available to Employee E and Employee F. As the 2010 long-term restricted stock grant is Code (26 U.S.C. 409A) in the case of an of February 11, 2009, Employee E had a allocated as compensation, so that the total amendment described in the preceding legally binding right to a $100,000 bonus. annual compensation is $1,100,000 ($600,000 sentence. Employees E and F are never at any time salary + $400,000 + $100,000). However, for (ii) Examples. The following SEOs or highly compensated employees purposes of determining Employee A’s examples illustrate the provisions of subject to the limitation. As of February 11, annual compensation to apply the limit on this paragraph (2). 2009, Employee F had no legally binding the value of the long-term restricted stock right to a bonus, but was eligible to that may be granted to Employee A in 2010, Example 1. TARP recipient sponsors a participate in a bonus pool and was the entire $300,000 value of the 2010 grant written restricted stock unit plan. Under the ultimately awarded a bonus of $50,000. As of is included but the $400,000 value attributed plan, restricted stock units are traditionally February 11, 2009, Employee D had a legally to the 2008 grant is excluded. Accordingly, granted each July 1, and are subject to a binding right to a $100,000 bonus, so that Employee A’s adjusted annual compensation three-year vesting requirement. Employee A, bonus is not subject to the limitation. is $900,000 ($1,100,000 ¥ $100,000 + a SEO of TARP recipient, received grants on However, as of February 11, 2009, Employee ¥ July 1, 2007, July 1, 2008, and July 1, 2009. $300,000 $400,000). In addition, the entire D did not have a legally binding right to the The July 1, 2007 and July 1, 2008 grants are fair market value of the 2010 long-term additional $50,000 bonus, so that bonus is excluded from the limitation on payments, restricted stock grant is included for subject to the bonus payment limitation and, because although the awards were subject to purposes of determining whether the limit if not paid before June 15, 2009 is not a continuing service vesting requirement, has been exceeded. Because the $300,000 permitted to be paid. adjusted value of the long-term restricted Employee A retained a legally binding right stock grant does not exceed one-third of the to the restricted stock units as of February 11, (f) Application to private TARP $900,000 adjusted annual compensation, the 2009. However, regardless of the fact that the recipients. The rules set forth in this grant complies with paragraph (e)(1)(i). restricted stock unit program was in section are also applicable to TARP existence on February 11, 2009, Employee A (2) Legally binding right under valid recipients that do not have securities did not retain a legally binding right to a registered with the SEC pursuant to the employment contracts—(i) General rule. restricted stock unit for 2009 as of February The prohibition under paragraph (a) of 11, 2009, but rather obtained the legally Federal securities laws. this section does not apply to bonus binding right only when the restricted stock § 30.11 Q–11: Are TARP recipients payments required to be paid under a unit was granted on July 1, 2009. required to meet any other standards under valid employment contract if the Accordingly, the July 1, 2009 grant is subject the executive compensation and corporate employee had a legally binding right to the limitation and is not permitted to be governance standards in section 111 of accrued or paid (unless such grant complies EESA? under the contract to a bonus payment with the exception for certain grants of long- as of February 11, 2009. For purposes of term restricted stock). (a) Approval of compensation determining whether an employee had a Example 2. TARP recipient sponsors an payments to, and compensation legally binding right to a bonus annual bonus program documented in a structures for, certain employees of payment, see 26 CFR 1.409A–1(b)(i). In written plan. Under the bonus program, the TARP recipients receiving exceptional addition, the bonus payment must be board of directors retains the discretion to financial assistance. For any period made in accordance with the terms of eliminate or reduce the bonus of any during which a TARP recipient is the contract as of February 11, 2009 employee in the bonus pool. Employees B designated as a TARP recipient that has and C, both SEOs, are in the bonus pool for (which may include application of an 2008. On January 15, 2009, the compensation received exceptional financial elective deferral election under a committee determines the bonuses to which assistance, the TARP recipient must qualified retirement plan or a the employees of the division in which obtain the approval by the Special nonqualified deferred compensation Employee B works are entitled, and awards Master of all compensation payments to, plan), such that any subsequent Employee B a $10,000 bonus payable on June and compensation structures for, SEOs amendment to the contract to increase 1. Employee B has a legally binding right to and most highly compensated the amount payable, accelerate any the bonus as of February 11, 2009 and employees subject to paragraph (b) of vesting conditions, or otherwise payment of the bonus is not subject to the § 30.10 (Q–10). TARP recipients that limitation. However, as of February 11, 2009, materially enhance the benefit available the board of directors has not met to receive exceptional financial assistance to the employee under the contract will determine which employees of the division must also receive approval by the result in the bonus payment being in which Employee C works will be entitled Special Master for all compensation treated as not made under the to a bonus or the amount of such bonus. structures for other employees who are employment contract executed on or Accordingly, Employee C did not have a executive officers (as defined under the before February 11, 2009. However, legally binding right to a bonus as of Securities and Exchange Act, Rule 3b– amendment of a valid employment February 11, 2009 and may be subject to the 7) or one of the 100 most highly contract executed on or before February bonus payment limitation. compensated employees of a TARP Example 3. TARP recipient sponsors a 11, 2009 under which an employee has written stock option plan under which stock recipient receiving exceptional a legally binding right to a bonus options may be granted to SEOs designated assistance (or both), who are not subject payment to reduce the amount of the by the compensation committee. to the bonus limitations under § 30.10 bonus payment or to enhance or include Designations and grants typically occur at a (Q–10). For this purpose, compensation service-based or performance-based meeting in August of every year, and no payments and compensation structures

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may include awards or other rights to provided to the TARP recipient, the policy on its Internet Web site, if the compensation which an employee has board, or the compensation committee TARP recipient maintains a company already received but not yet been paid during the past three years, including Web site. This disclosure must continue or, in some instances, fully accrued. any ‘‘benchmarking’’ or comparisons through the TARP period (if the TARP Accordingly, the Special Master has the employed to identify certain percentile recipient has an obligation), or through authority to require that such levels of compensation (for example, the last day of the TARP recipient’s compensation payments or entities used for benchmarking and a fiscal year that includes the sunset date compensation structures be altered to justification for using these entities and (if the TARP recipient has never had an meet the standards set forth in § 30.16 the lowest percentile level proposed for obligation). (Q–16). However, this approval compensation). Such disclosure must be requirement is not applicable to § 30.13 Q–13: What actions are necessary provided within 120 days of the for a TARP recipient to comply with section payments that are not subject to completion of a fiscal year any part of 111(e) of EESA (the shareholder resolution paragraph (a) of § 30.10 (Q–10) due to which is a TARP period. on executive compensation requirement)? the application of paragraph (e)(2) of (2) Application to TARP recipients (a) General rule. As provided in § 30.10 (Q–10) or the effective date not required to maintain compensation section 111(e) of EESA, any proxy or provisions of § 30.17 (Q–17), though the committees. For those TARP recipients consent or authorization for an annual Special Master will take such payments not required to establish and maintain or other meeting of the shareholders of into account in reviewing the compensation committees under any TARP recipient that occurs during compensation structure and amounts § 30.4(c) (Q–4), the board of directors the TARP period must permit a separate payable, as applicable, that are subject must provide the disclosure under shareholder vote to approve the to review. Notwithstanding any of the § 30.4(c)(1). compensation of executives, as required foregoing, approval is not required with (3) Location. A TARP recipient must to be disclosed pursuant to the Federal respect to an employee not subject to provide this disclosure to Treasury and securities laws (including the the bonus payment limitations to the to its primary regulatory agency. compensation discussion and analysis, extent that the employee’s annual (d) Prohibition on gross-ups. Except as the compensation tables, and any compensation, as modified in § 30.16 explicitly permitted under this part, related material). To meet this standard, (Q–16) to include certain deferred TARP recipients are prohibited from a TARP recipient must comply with any compensation and pension accruals but providing (formally or informally) gross- rules, regulations, or guidance to disregard any grant of long-term ups to any of the SEOs and next twenty promulgated by the SEC. restricted stock, is limited to $500,000 most highly compensated employees or less, and any further compensation is during the TARP period. For this § 30.14 Q–14: How does section 111 of provided in the form of long-term purpose, providing a gross-up includes EESA operate in connection with an restricted stock. For details, see § 30.16 providing a right to a payment of such acquisition, merger, or reorganization? (Q–16). a gross-up at a future date, for example (a) Special rules for acquisitions, (b) Perquisite disclosure—(1) General a date after the TARP period. mergers, or reorganizations. In the event rule. TARP recipients must annually that a TARP recipient (target) is disclose during the TARP period any § 30.12 Q–12: What actions are necessary acquired by an entity that is not an perquisite whose total value for the for a TARP recipient to comply with section affiliate of the target (acquirer) in an TARP recipient’s fiscal year exceeds 111(d) of EESA (the excessive or luxury acquisition of any form, including a expenditures policy requirement)? $25,000 for each of the SEOs and most purchase of substantially all of the highly compensated employees that are To comply with section 111(d) of assets of the target, such that the subject to paragraph (a) of § 30.10 (Q– EESA, by the later of ninety days after acquirer after the transaction would 10). TARP recipients must provide a the closing date of the agreement have been treated as a TARP recipient narrative description of the amount and between the TARP recipient and if the target had received the TARP nature of these perquisites, the recipient Treasury or September 14, 2009, the funds immediately after the transaction, of these perquisites, and a justification board of directors of the TARP recipient acquirer will not become subject to for offering these perquisites (including must adopt an excessive or luxury section 111 of EESA merely as a result a justification for offering the perquisite, expenditures policy, provide this policy of the acquisition. If the acquirer is not and not only for offering the perquisite to Treasury and its primary regulatory subject to section 111 of EESA with a value that exceeds $25,000). agency, and post the text of this policy immediately after the transaction, then Such disclosure must be provided on its Internet Web site, if the TARP any employees of the acquirer within 120 days of the completion of a recipient maintains a company Web immediately after the transaction fiscal year any part of which is a TARP site. After adoption of the policy, the (including target employees who were period. TARP recipient must maintain the SEOs or most highly compensated (2) Location. A TARP recipient must policy during the remaining TARP employees immediately prior to the provide this disclosure to Treasury and period (if the TARP recipient has an transaction and became acquirer to its primary regulatory agency. obligation), or through the last day of employees as a result of the transaction) (c) Compensation consultant the TARP recipient’s fiscal year will not be subject to section 111 of disclosure—(1) General rule. The including the sunset date (if the TARP EESA. compensation committee of the TARP recipient has never had an obligation). (b) Anti-abuse rule. Notwithstanding recipient must provide annually a If, after adopting an excessive or luxury the provisions of paragraph (a) of this narrative description of whether the expenditures policy, the board of section, if the primary purpose of a TARP recipient, the board of directors of directors of the TARP recipient makes transaction involving the acquisition, in the TARP recipient, or the any material amendments to this policy, any form, of a TARP recipient is to compensation committee has engaged a within ninety days of the adoption of avoid or evade the application of any of compensation consultant; and all types the amended policy, the board of the requirements of section 111 of of services, including non-compensation directors must provide the amended EESA, the acquirer will be treated as a related services, the compensation policy to Treasury and its primary TARP recipient immediately upon such consultant or any of its affiliates has regulatory agency and post the amended acquisition. In such a case, the SEOs

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and the most highly compensated certifications of the PEO and the PFO of documentation and records that are employees to whom any of the the TARP recipient must be amended to required to be preserved under requirements of section 111 of EESA reflect the timing of the establishment paragraph (b) of this section that are and this Interim Final Rule apply shall and reviews of the compensation requested by any representative of be redetermined as of the date of the committee. Treasury. acquisition. The redetermined SEOs and (3) Years Following First Fiscal Year (c) Penalties for making or providing most highly compensated employees of Certification. Within ninety days of the false or fraudulent Statements. Any the post-acquisition acquirer shall completion of each TARP fiscal year of individual or entity that provides consist of the PEO and PFO of the post- the TARP recipient after the first TARP information or makes a certification to acquisition acquirer, plus the applicable fiscal year, the PEO and the PFO of the Treasury pursuant to the Interim Final number of next most highly TARP recipient must provide a Rule or as required pursuant to 31 CFR compensated employees determined by certification similar to the model Part 30 may be subject to 18 U.S.C. aggregating the post-acquisition provided in Appendix B to this section. 1001, which generally prohibits the employees of the acquirer (to include (4) Location. A TARP recipient with making of any false or fraudulent the pre-acquisition employees of the securities registered with the SEC statement in a matter within the target employed by the acquirer, or pursuant to the Federal securities law jurisdiction of the Federal government. anticipated to be employed by the must provide these certifications as an Upon receipt of information indicating acquirer), and ranking such employees exhibit (pursuant to Item 601(b)(99)(i) of that any individual or entity has in order of compensation for the Regulation S–K under the Federal violated any provision of title 18 of the immediately preceding fiscal year of the securities laws (17 CFR U.S. Code or other provision of Federal pre-acquisition target or pre-acquisition 229.601(b)(99)(i)) to the TARP law, Treasury shall refer such acquirer, as appropriate. In the case of recipient’s annual report on Form 10–K information to the Department of Justice an asset acquisition, the entity or and to Treasury. To the extent that the and the Special Inspector General for entities to whom the target’s assets are PEO or the PFO of the TARP recipient the Troubled Asset Relief Program. is unable to provide any of these transferred shall be treated as the direct Appendix A to § 30.15—Model recipient of the financial assistance for certifications in a timely manner, the PEO or the PFO must provide Treasury Certification for First Fiscal Year purposes of determining which other Certification related entities are treated, in the an explanation of the reason such aggregate, as the TARP recipient under certification has not been provided. ‘‘I, [identify certifying individual], certify, the definition of ‘‘TARP recipient’’ in These certifications are in addition to based on my knowledge, that: § 30.1 (Q–1). the compensation committee (i) The compensation committee of certifications required by § 30.5 (Q–5) of [identify TARP recipient] has discussed, § 30.15 Q–15: What actions are necessary this part. reviewed, and evaluated with senior risk for a TARP recipient to comply with (5) Application to private TARP officers at least every six months during the certification requirements of section recipients. The rules provided in this period beginning on the later of the closing 111(b)(4) of EESA? section are also applicable to TARP date of the agreement between the TARP (a) Certification Requirements—(1) recipient and Treasury or June 15, 2009 and recipients that do not have securities ending with the last day of the TARP General. To comply with section registered with the SEC pursuant to the recipient’s fiscal year containing that date, 111(b)(4) of EESA, the PEO and the PFO Federal securities laws, except the senior executive officer (SEO) compensation of the TARP recipient must provide the certifications under paragraphs (a)(2)(x) plans and employee compensation plans and following certifications with respect to and (a)(3)(x) of this section are not the risks these plans pose to [identify TARP the compliance of the TARP recipient required. A private TARP recipient must recipient]; with section 111 of EESA as provide these certifications to its (ii) The compensation committee of implemented under this part: primary regulatory agency and to [identify TARP recipient] has identified and (2) First Fiscal Year Certification. (i) Treasury. limited during the period beginning on the Within ninety days of the completion of (6) Application to TARP recipients later of the closing date of the agreement between the TARP recipient and Treasury or the first annual fiscal year of the TARP that have never had an obligation. For June 15, 2009 and ending with the last day recipient any portion of which is a those TARP recipients that have never of the TARP recipient’s fiscal year containing TARP period, the PEO and the PFO of had an obligation, the PEO and PFO that date, the features in the SEO the TARP recipient must provide must provide the certifications pursuant compensation plans that could lead SEOs to certifications similar to the model to this paragraph (a) only with respect take unnecessary and excessive risks that provided in appendix A to this section. to the requirements applicable to a could threaten the value of [identify TARP (ii) If the first annual fiscal year of a TARP recipient that has never had an recipient] and identified any features in the TARP recipient any portion of which is obligation (generally certain employee compensation plans that pose risks a TARP period ends within thirty days to [identify TARP recipient] and limited compensation committee reviews of those features to ensure that [identify TARP after the closing date of the applicable employee compensation plans and the recipient] is not unnecessarily exposed to agreement between the TARP recipient issuance of, and compliance with, an risks; and Treasury, the TARP recipient shall excessive or luxury expenses policy). (iii) The compensation committee has have an additional sixty days beginning (b) Recordkeeping requirements. The reviewed at least every six months during the on the day after the end of the fiscal TARP recipient must preserve period beginning on the later of the closing year during which it can establish the appropriate documentation and records date of the agreement between the TARP compensation committee, if not already to substantiate each certification recipient and Treasury or June 15, 2009 and established, and during which the required under paragraph (a) of this ending with the last day of the TARP compensation committee shall meet section for a period of not less than six recipient’s fiscal year containing that date, the terms of each employee compensation with senior risk officers to discuss, years after the date of the certification, plan and identified the features in the plan review, and evaluate the SEO the first two years in an easily accessible that could encourage the manipulation of compensation plans and employee place. The TARP recipient must furnish reported earnings of [identify TARP compensation plans in accordance with promptly to Treasury legible, true, recipient] to enhance the compensation of an § 30.4 (Q–4) of this part. The complete, and current copies of the employee and has limited those features;

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(iv) The compensation committee of TARP recipient and Treasury or June 15, punished by fine, imprisonment, or both. [identify TARP recipient] will certify to the 2009 and ending with the last day of the (See, for example, 18 U.S.C. 1001.)’’ reviews of the SEO compensation plans and TARP recipient’s fiscal year containing that employee compensation plans required date, and that any expenses requiring Appendix B to § 30.15—Model under (i) and (iii) above; approval of the board of directors, a Certification for Years Following First (v) The compensation committee of committee of the board of directors, an SEO, Fiscal Year Certification [identify TARP recipient] will provide a or an executive officer with a similar level of ‘‘I, [identify certifying individual], certify, narrative description of how it limited during responsibility, were properly approved; based on my knowledge, that: any part of the most recently completed fiscal (x) [Identify TARP recipient] will permit a (i) The compensation committee of year that included a TARP period the non-binding shareholder resolution in [identify TARP recipient] has discussed, features in compliance with any applicable Federal reviewed, and evaluated with senior risk (A) SEO compensation plans that could securities rules and regulations on the officers at least every six months during any lead SEOs to take unnecessary and excessive disclosures provided under the Federal part of the most recently completed fiscal risks that could threaten the value of securities laws related to SEO compensation year that was a TARP period, senior [identify TARP recipient]; paid or accrued during the period beginning executive officer (SEO) compensation plans (B) Employee compensation plans that on the later of the closing date of the and employee compensation plans and the unnecessarily expose [identify TARP agreement between the TARP recipient and risks these plans pose to [identify TARP recipient] to risks; and Treasury or June 15, 2009 and ending with recipient]; (C) Employee compensation plans that the last day of the TARP recipient’s fiscal (ii) The compensation committee of could encourage the manipulation of year containing that date; [identify TARP recipient] has identified and reported earnings of [identify TARP (xi) [Identify TARP recipient] will disclose limited during any part of the most recently recipient] to enhance the compensation of an the amount, nature, and justification for the completed fiscal year that was a TARP period employee; offering during the period beginning on the the features in the SEO compensation plans (vi) [Identify TARP recipient] has required later of the closing date of the agreement that could lead SEOs to take unnecessary and that bonus payments, as defined in the between the TARP recipient and Treasury or excessive risks that could threaten the value regulations and guidance established under June 15, 2009 and ending with the last day of [identify TARP recipient] and identified section 111 of EESA (bonus payments), of the of the TARP recipient’s fiscal year containing any features in the employee compensation SEOs and twenty next most highly that date of any perquisites, as defined in the plans that pose risks to [identify TARP compensated employees be subject to a regulations and guidance established under recipient] and limited those features to recovery or ‘‘clawback’’ provision during any section 111 of EESA, whose total value ensure that [identify TARP recipient] is not part of the most recently completed fiscal exceeds $25,000 for each employee subject to unnecessarily exposed to risks; year that was a TARP period if the bonus the bonus payment limitations identified in (iii) The compensation committee has payments were based on materially paragraph (vii); reviewed at least every six months during inaccurate financial statements or any other (xii) [Identify TARP recipient] will disclose any part of the most recently completed fiscal materially inaccurate performance metric whether [identify TARP recipient], the board year that was a TARP period the terms of criteria; of directors of [identify TARP recipient], or each employee compensation plan and (vii) [Identify TARP recipient] has the compensation committee of [TARP identified the features in the plan that could prohibited any golden parachute payment, as recipient] has engaged during the period encourage the manipulation of reported defined in the regulations and guidance beginning on the later of the closing date of earnings of [identify TARP recipient] to established under section 111 of EESA, to an the agreement between the TARP recipient enhance the compensation of an employee SEO or any of the next five most highly and Treasury or June 15, 2009 and ending and has limited these features that would compensated employees during the period with the last day of the TARP recipient’s encourage the manipulation of reported beginning on the later of the closing date of fiscal year containing that date, a earnings of [identify TARP recipient]; the agreement between the TARP recipient compensation consultant; and the services (iv) The compensation committee of and Treasury or June 15, 2009 and ending the compensation consultant or any affiliate [identify TARP recipient] will certify to the with the last day of the TARP recipient’s of the compensation consultant provided reviews of the SEO compensation plans and fiscal year containing that date; during this period; employee compensation plans required (viii) [Identify TARP recipient] has limited (xiii) [Identify TARP recipient] has under (i) and (iii) above; bonus payments to its applicable employees prohibited the payment of any gross-ups, as (v) The compensation committee of in accordance with section 111 of EESA and defined in the regulations and guidance [identify TARP recipient] will provide a the regulations and guidance established established under section 111 of EESA, to the narrative description of how it limited during thereunder during the period beginning on SEOs and the next twenty most highly any part of the most recently completed fiscal the later of the closing date of the agreement compensated employees during the period year that was a TARP period the features in between the TARP recipient and Treasury or beginning on the later of the closing date of (A) SEO compensation plans that could June 15, 2009 and ending with the last day the agreement between the TARP recipient lead SEOs to take unnecessary and excessive of the TARP recipient’s fiscal year containing and Treasury or June 15, 2009 and ending risks that could threaten the value of that date, [for recipients of exceptional with the last day of the TARP recipient’s [identify TARP recipient]; assistance: and has received or is in the fiscal year containing that date; (B) Employee compensation plans that process of receiving approvals from the (xiv) [Identify TARP recipient] has unnecessarily expose [identify TARP Office of the Special Master for TARP substantially complied with all other recipient] to risks; and Executive Compensation for compensation requirements related to employee (C) Employee compensation plans that payments and structures as required under compensation that are provided in the could encourage the manipulation of the regulations and guidance established agreement between [identify TARP recipient] reported earnings of [identify TARP under section 111 of EESA, and has not made and Treasury, including any amendments; recipient] to enhance the compensation of an any payments inconsistent with those (xv) The following employees are the SEOs employee; approved payments and structures]; and the twenty next most highly (vi) [Identify TARP recipient] has required (ix) The board of directors of [identify compensated employees for the current fiscal that bonus payments to SEOs or any of the TARP recipient] has established an excessive year and the most recently completed fiscal next twenty most highly compensated or luxury expenditures policy, as defined in year, with the non-SEOs ranked in order of employees, as defined in the regulations and the regulations and guidance established level of annual compensation starting with guidance established under section 111 of under section 111 of EESA, has provided this the greatest amount: [identify name, title, and EESA (bonus payments), be subject to a policy to Treasury and its primary regulatory employer of each SEO and most highly recovery or ‘‘clawback’’ provision during any agency, and [identify TARP recipient] and its compensated employee]; and part of the most recently completed fiscal employees have complied with this policy (xvi) I understand that a knowing and year that was a TARP period if the bonus during the period beginning on the later of willful false or fraudulent statement made in payments were based on materially the closing date of the agreement between the connection with this certification may be inaccurate financial statements or any other

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materially inaccurate performance metric (xiv) [Identify TARP recipient] has such a determination, the Secretary criteria; substantially complied with all other shall seek to negotiate with the TARP (vii) [Identify TARP recipient] has requirements related to employee recipient and the subject employee for prohibited any golden parachute payment, as compensation that are provided in the appropriate reimbursements to the defined in the regulations and guidance agreement between [identify TARP recipient] established under section 111 of EESA, to a and Treasury, including any amendments; Federal Government with respect to SEO or any of the next five most highly (xv) The following employees are the SEOs compensation or bonuses. The Special compensated employees during any part of and the twenty most highly compensated Master shall have the responsibility for the most recently completed fiscal year that employees for the current fiscal year, with administering these provisions, was a TARP period; the non-SEOs ranked in order of level of including the identification of the (viii) [Identify TARP recipient] has limited annual compensation starting with the payments that are inconsistent with the bonus payments to its applicable employees greatest amount: [identify name, title, and purposes of EESA or TARP, or employer of each SEO]; and in accordance with section 111 of EESA and otherwise contrary to the public the regulations and guidance established (xvi) I understand that a knowing and thereunder during any part of the most willful false or fraudulent statement made in interest, and the Special Master shall recently completed fiscal year that was a connection with this certification may be have responsibility for the negotiation TARP period [for recipients of exceptional punished by fine, imprisonment, or both. with the TARP recipient and the subject assistance] and has received or is in the (See, for example 18 U.S.C. 1001.)’’ employee for appropriate process of receiving approvals from the reimbursements to the Federal § 30.16 Q–16: What is the Office of the Office of the Special Master for TARP Government with respect to Executive Compensation for compensation Special Master for TARP Executive Compensation, and what are its powers, compensation or bonuses. The Special payments and structures as required under Master shall make this determination by the regulations and guidance established duties and responsibilities? under section 111 of EESA, and has not made (a) The Office of the Special Master application of the principles outlined in any payments inconsistent with those for TARP Executive Compensation. The paragraph (b) of this section. The approved payments and structures; Secretary of the Treasury shall establish Special Master’s administration of these (ix) [Identify TARP recipient] and its the Office of the Special Master for provisions may provide for the scope of employees have complied with the excessive TARP Executive Compensation (Special review by the Special Master of a or luxury expenditures policy, as defined in Master). The Special Master shall serve payment, including a limited review or the regulations and guidance established no review, depending on the payment under section 111 of EESA, during any part at the pleasure of the Secretary, and may be removed by the Secretary without amount, the type of payment, the overall of the most recently completed fiscal year compensation earned by the employee that was a TARP period, and that any notice, without cause, and prior to the expenses requiring approval of the board of naming of any successor Special Master. during the relevant period, a directors, a committee of the board of The Special Master shall have the combination thereof, or such other directors, an SEO, or an executive officer following powers, duties and factors as the Special Master may with a similar level of responsibility, were responsibilities: determine, where the Special Master properly approved; (1) Interpretative authority. The determines that such factors (x) [Identify TARP recipient] will permit a Special Master shall have responsibility demonstrate that such payments are not, non-binding shareholder resolution in or are highly unlikely to be, inconsistent compliance with any applicable Federal for interpreting section 111 of EESA, these regulations, and any other with the purposes of section 111 of securities rules and regulations on the EESA or TARP, or otherwise contrary to disclosures provided under the Federal applicable guidance, to determine how securities laws related to SEO compensation the requirements under section 111 of the public interest, or that renegotiation paid or accrued during any part of the most EESA, these regulations, and any other of such payments is not in the public recently completed fiscal year that was a applicable guidance, apply to particular interest. The Special Master may request TARP period; facts and circumstances. Accordingly, in writing any information from TARP (xi) [Identify TARP recipient] will disclose the Special Master shall make all recipients necessary to carry out the the amount, nature, and justification for the determinations, as required, as to the review of prior compensation required offering during any part of the most recently under section 111(f) of EESA. TARP completed fiscal year that was a TARP period meaning of such guidance and whether such requirements have been met in any recipients must submit any requested of any perquisites, as defined in the information to the Special Master regulations and guidance established under particular circumstances. In addition, a section 111 of EESA, whose total value TARP recipient or a TARP recipient within 30 days of the request. exceeds $25,000 for for each employee employee may submit a request, in (3) Approval of certain payments to subject to the bonus payment limitations accordance with paragraph (c)(3) of this employees of TARP recipients receiving identified in paragraph (viii); section, for an advisory opinion with exceptional financial assistance. (i) (xii) [Identify TARP recipient] will disclose respect to the requirements under SEOs and most highly compensated whether [identify TARP recipient], the board section 111 of EESA, these regulations employees. The Special Master shall of directors of [identify TARP recipient], or determine whether the compensation the compensation committee of [identify and any other applicable guidance. TARP recipient] has engaged during any part (2) Review of prior payments to structure for each SEO or most highly of the most recently completed fiscal year employees. Section 111(f) of EESA compensated employee of a TARP that was a TARP period a compensation provides that the Secretary shall review recipient receiving exceptional consultant; and the services the bonuses, retention awards, and other assistance, including the amounts compensation consultant or any affiliate of compensation paid before February 17, payable or potentially payable under the compensation consultant provided 2009, to employees of each entity such compensation structure, will or during this period; receiving TARP assistance before may result in payments that are (xiii) [Identify TARP recipient] has February 17, 2009, to determine inconsistent with the purposes of prohibited the payment of any gross-ups, as whether any such payments were section 111 of EESA or TARP, or are defined in the regulations and guidance established under section 111 of EESA, to the inconsistent with the purposes of otherwise contrary to the public SEOs and the next twenty most highly section 111 of EESA or TARP, or interest. The Special Master shall make compensated employees during any part of otherwise contrary to the public such determinations by applying the the most recently completed fiscal year that interest. Section 111(f) of EESA principles outlined in paragraph (b) of was a TARP period; provides that, if the Secretary makes this section, subject to the requirement

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that the compensation structure and structure for such employees will or factors as the Special Master payments satisfy the applicable may result in payments that are determines, where the Special Master limitations under § 30.10 (Q–10). This inconsistent with the purposes of has determined that such factors requirement shall apply to any section 111 of EESA or TARP, or are demonstrate that such payments are not, compensation accrued or paid during otherwise contrary to the public or are highly unlikely to be, inconsistent any period the SEO or most highly interest. The Special Master shall make with the purposes of section 111 of compensated employee is subject to the such determination through application EESA or TARP, or otherwise contrary to limitations under § 30.10 (Q–10). Initial of the principles outlined in paragraph the public interest. Initial requests for requests for such approval must be (b) of this section. With respect to the such approval must be submitted no submitted no later than August 14, scope of the required review, the later than 120 days after publication of 2009. The Special Master’s Special Master shall determine only the final rule. Separate requests need administration of these provisions may whether the compensation arrangements not be submitted for each individual provide for the Special Master’s scope of are adequately structured, and is not covered employee, but should be review, including a limited review or no required to rule with respect to the submitted for identified groups of review, of a portion of a compensation amounts that are or may be payable employees subject to the same structure or payment depending on the thereunder. However, the TARP compensation structures to the extent amount of such payments, the type of recipient may also request an advisory possible as long as sufficient detail such payments, the overall opinion with respect to the amounts regarding individual compensation compensation earned by the employee that are or may be payable, which the awards are provided as necessary to during the relevant period, a Special Master may provide in his sole evaluate such employee’s compensation combination thereof, or such other discretion. Notwithstanding the structure. The Special Master shall issue factors as the Special Master foregoing, if the total annual a determination within 60 days of the determines, if the Special Master has compensation to an employee complies receipt of a substantially complete determined that such factors with the rules applicable to an SEO submission. The TARP recipient must demonstrate that such payments are not, under § 30.10 (Q–10) applied without make a further request for approval to or are highly unlikely to be, inconsistent any limits on the grant of long-term the extent the compensation structure, with the purposes of section 111 of restricted stock, and the annual including the amounts that are or may EESA or TARP, or otherwise contrary to compensation other than long-term be payable, for any executive officer is the public interest. The Special Master restricted stock does not exceed materially amended. In reviewing shall issue a determination within 60 $500,000 (or for 2009, $500,000 prorated compensation structures for any period days of the receipt of a substantially to reflect the remaining portion of 2009 subject to Special Master review, the complete submission. The TARP after June 15, 2009), the compensation Special Master may take into account recipient must make a further request structure will automatically be deemed other compensation structures and other for approval to the extent the to meet the requirements and no prior compensation earned, accrued or paid, compensation structure for any SEO or approval by the Special Master will be including such compensation and most highly compensated employee, required. For purposes of the $500,000 compensation structures that are not including the amounts that are or may limit, in determining annual subject to the restrictions of Section 111 be payable, for any SEO or highly compensation, all equity-based of EESA pursuant to section compensated employee is materially compensation granted in fiscal years 111(b)(3)(D)(iii) (see § 30.10(e)(2) (Q– modified. In reviewing compensation ending after June 15, 2009 will be 30.10(e)(2) (certain legally binding structures and compensation payments included in the calculation only in the rights under valid written employment for any period subject to Special Master year in which they are granted at their contracts)), and amounts that were review, the Special Master may take into total fair market value on the grant date accrued or paid prior to June 15, 2009 account other compensation structures and all equity-based compensation and are therefore not subject to review and other compensation earned, accrued granted in fiscal years ending prior to by the Special Master. or paid, including such compensation June 15, 2009 will not be included in (iii) Period from June 15, 2009 and compensation structures that are the calculation of annual compensation. through final determination. For the not subject to the restrictions of Section In addition, solely for purposes of period from June 15, 2009 through the 111 of EESA pursuant to section applying the limit (and not for purposes date of the Special Master’s final 111(b)(3)(D)(iii) (see § 30.10(e)(2) (Q– of identifying the most highly determination, the TARP recipient will 30.10(e)(2) (certain legally binding compensated employees), the term be treated as complying with this rights under valid written employment annual compensation includes amounts section if, with respect to employees contracts)), and amounts that were required to be disclosed under covered by paragraph (a)(3)(i) of this accrued or paid prior to June 15, 2009 paragraph (viii) of Item 402(a) of section, the TARP recipient continues to and are therefore not subject to review Regulation S–K of the Federal securities pay compensation to such employees in by the Special Master. laws (change in the actuarial present accordance with the terms of (ii) Other executive officers and most value of benefits under a pension plan employment as of June 14, 2009 to the highly compensated employees. With and above-market earnings on deferred extent otherwise permissible under this respect to any employee who is either compensation). The Special Master’s Interim Final Rule (for example, an executive officer (as defined under administration of these provisions may continued salary payments but not any the Securities and Exchange Act Rule provide for limited or no review of a bonus payments) and if, with respect to 3b–7) or one of the 100 most highly portion of a compensation structure by employees covered by paragraph compensated employees of a TARP the Special Master depending on the (a)(3)(ii) of this section, the TARP recipient receiving exceptional amount of potential payments, the type recipient continues to pay assistance (or both), who is not subject of such payments, the overall compensation to such employees under to the bonus limitations under § 30.10 compensation earned by the employee the compensation structure established (Q–10), the Special Master shall during the relevant period, a as of June 14, 2009, and if in addition determine whether the compensation combination thereof, or such other the TARP recipient promptly complies

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with any modifications that may be the application of compensation issues may not ultimately be reflected by an required by the Special Master’s final arising in the administration of EESA or increase in the long-term value of the determination. However, the Special TARP as the Secretary or the Secretary’s TARP recipient. Accordingly, incentive Master may take into account the designate may delegate to the Special payments or similar rewards should be amounts paid to an employee during Master, including, but not limited to, structured to be paid over a time such period in determining the the interpretation or application of horizon that takes into account the risk appropriate compensation amounts and contractual provisions between the horizon so that the payment or reward compensation structures, as applicable, Federal government and a TARP reflects whether the employee’s for the remainder of the year. recipient as those provisions relate to performance over the particular service (4) Advisory opinions on the compensation paid to, or accrued period has actually contributed to the compensation structures or by, an employee of such TARP long-term value of the TARP recipient. compensation payments to employees of recipient. (ii) Taxpayer return. The TARP recipients. A TARP recipient or (b) Determination of whether compensation structure, and amount TARP recipient employee may request compensation is inconsistent with the payable where applicable, should reflect an advisory opinion from the Special purposes of section 111 of EESA or the need for the TARP recipient to Master as to whether a compensation TARP or is otherwise contrary to the remain a competitive enterprise, to structure is, or will or may result in public interest—(1) Principles. In retain and recruit talented employees payments that are, inconsistent with the reviewing a compensation structure or a who will contribute to the TARP purposes of EESA or TARP, or compensation payment to determine recipient’s future success, and otherwise contrary to the public whether it is inconsistent with the ultimately to be able to repay TARP interest. In addition, the Special Master purposes of section 111 of EESA or obligations. may become aware of compensation TARP or is otherwise contrary to the (iii) Appropriate allocation. The structures or payments at any TARP public interest, the Special Master shall compensation structure should recipient for which it may be useful to apply the principles enumerated below. appropriately allocate the components provide an advisory opinion as to The principles are intended to be of compensation such as salary, short- whether such structure or payments consistent with sound compensation term and long-term incentives, as well meets this standard. Accordingly, the practices appropriate for TARP as the extent to which compensation is Special Master shall have the authority recipients, and to advance the purposes provided in cash, equity or other types to render advisory opinions upon and considerations described in EESA of compensation such as executive request or at the Special Master’s sections 2 and 103, including the pensions, other benefits, or perquisites, initiative, as to whether a compensation maximization of overall returns to the based on the specific role of the structure is, or will or may result in taxpayers of the United States and employee and other relevant payments to an employee that are providing stability and preventing circumstances, including the nature and inconsistent with the purposes of disruptions to financial markets. The amount of current compensation, section 111 of EESA or TARP, or Special Master has discretion to deferred compensation, or other otherwise contrary to the public determine the appropriate weight or compensation and benefits previously interest, or whether a compensation relevance of a particular principle paid or awarded. The appropriate payment made, or to be made, was or depending on the facts and allocation may be different for different will be inconsistent with the purposes circumstances surrounding the positions and for different employees, of section 111 of EESA or TARP, or compensation structure or payment but generally, in the case of an executive otherwise contrary to the public under consideration, such as whether a or other senior level position a interest. If the Special Master renders an payment occurred in the past or is significant portion of the overall adverse opinion, the Special Master proposed for the future, the role of the compensation should be long-term shall have the authority to seek to employee within the TARP recipient, compensation that aligns the interest of negotiate with the TARP recipient and the situation of the TARP recipient the employee with the interests of the subject employee for appropriate within the marketplace and the amount shareholders and taxpayers. reimbursements to the TARP recipient and type of financial assistance (iv) Performance-based or the Federal government. Any provided. To the extent that two or more compensation. An appropriate portion advisory opinion shall reflect the principles may appear inconsistent in a of the compensation should be Special Master’s application of the particular situation, the Special Master performance-based over a relevant principles outlined in paragraph (b) of will determine the relative weight to be performance period. Performance-based this section. The Special Master shall accorded each principle. In the case of compensation should be determined not be required to render an advisory any review of payments already made through tailored metrics that encompass opinion in every instance, but may do under paragraph (c)(2) of this section, or individual performance and/or the so only where the Special Master deems of any rights to bonuses, awards, or performance of the TARP recipient or a appropriate and feasible in the context other compensation already granted, the relevant business unit taking into of the Special Master’s other Special Master shall apply these consideration specific business responsibilities. In any case, the Special principles by considering the facts and objectives. Performance metrics may Master shall render an opinion, or circumstances at the time the relate to employee compliance with affirmatively decline to render an compensation was granted, earned, or relevant corporate policies. In addition, advisory opinion, within 60 days of the paid, as appropriate. the likelihood of meeting the receipt of a substantially complete (i) Risk. The compensation structure performance metrics should not be so submission. The Special Master shall should avoid incentives to take great that the arrangement fails to not be required to explain any decision unnecessary or excessive risks that provide an adequate incentive for the to decline to render an advisory could threaten the value of the TARP employee to perform, and performance opinion. recipient, including incentives that metrics should be measurable, (5) Other designated duties and reward employees for short-term or enforceable, and actually enforced if not powers. The Special Master shall have temporary increases in value, met. The appropriate allocation and the such other duties and powers related to performance, or similar measure that appropriate performance metrics may be

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different for different positions and for recipient shall have 30 days to request confidential commercial or financial different employees, but generally a in writing that the Special Master information or other appropriate significant portion of total reconsider the initial determination. redactions permissible under the FOIA, compensation should be performance- The request for reconsideration must which may include a procedure for the based compensation, and generally that specify a factual error or relevant new person or entity making the submission portion should be greater for positions information not previously considered, to request redactions and to review and that exercise higher levels of and must demonstrate that such error or request reconsideration of any proposed responsibility. lack of information resulted in a redactions before such redacted (v) Comparable structures and material error in the initial materials are released. payments. The compensation structure, determination. The Special Master must and amount payable where applicable, provide a final determination in writing § 30.17 Q–17: How do the effective date should be consistent with, and not within 30 days, setting forth the facts provisions apply with respect to the excessive, taking into account and analysis that formed the basis for requirements under section 111 of EESA? compensation structures and amounts the determination. If a TARP recipient (a) General rule. The requirements for persons in similar positions or roles does not request reconsideration within under this part with respect to sections at similar entities that are similarly 30 days, the initial determination shall 111(b), 111(c), 111(d) and 111(f) are situated, including, as applicable, be treated as a final determination. effective upon June 15, 2009. The entities competing in the same markets (2) Final determinations. In the case guidance under this part with respect to and similarly situated entities that are of any final determination that the financially distressed or that are TARP recipient is required to receive, those sections supersedes any previous contemplating or undergoing the final determination of the Special guidance applicable to a TARP recipient reorganization. Master shall be final and binding and to the extent that guidance is (vi) Employee contribution to TARP treated as the determination of the inconsistent with those requirements, recipient value. The compensation Treasury. but supersedes that guidance only as of structure, and amount payable where (3) Advisory Opinions. An advisory June 15, 2009. To the extent previous applicable, should reflect the current or opinion of the Special Master shall not contractual provisions are not prospective contributions of an be binding upon any TARP recipient or inconsistent with ARRA or the guidance employee to the value of the TARP employee, but may be relied upon by a under this part, those contractual recipient, taking into account multiple TARP recipient or employee if the provisions remain in effect and continue factors such as revenue production, advisory opinion applies to the TARP to apply in accordance with their terms. specific expertise, compliance with recipient and the employee and the (b) Bonus payment limitation. The company policy and regulation TARP recipient and employee comply bonus payment limitation provision (including risk management), and in all respects with the advisory under § 30.10 (Q–10) of this part does corporate leadership, as well as the role opinion. not apply to bonus payments paid or the employee may have had with (d) Submissions to the Special accrued by TARP recipients or their Master—(1) Submission procedures. respect to any change in the financial employees before June 15, 2009. Certain Submissions to the Special Master may health or competitive position of the bonus payments may relate to a service TARP recipient. be made under such procedures as the period beginning before and ending (2) Further guidance. The Secretary Special Master shall determine. The reserves the discretion to modify or Special Master may reserve the right to after June 15, 2009. In these amend the foregoing principles through request further information at any time circumstances, the employee will not be notice, announcement or other generally and a submission shall not be treated as treated as having accrued the bonus applicable guidance, provided that such substantially complete unless the payment on or after June 15, 2009 if the guidance shall apply only prospectively Special Master has so designated. bonus payment is at least reduced to from its date of publication and shall (2) Disclosure procedures. Materials reflect the portion of the service period not provide a basis for reconsideration submitted to the Special Master and the that occurs after June 15, 2009. If the of a determination of the Special Master, initial and final determinations of the employee is an SEO or most highly except as the Special Master deems Special Master are subject to disclosure compensated employee at the time the appropriate in light of such under the standards provided in the net bonus payment after such reduction modification or amendment. Freedom of Information Act (FOIA, (5 would otherwise be paid, the amount (c) Special Master determinations— U.S.C. 552 et seq.)). In addition, the still may not be paid until such time as (1) Initial determinations. The Special final determinations of the Special bonus payments to that employee are Master shall provide an initial Master shall be disclosed to the public. permitted. determination in writing, within 60 The Special Master shall promulgate days of the receipt of a substantially procedures for ensuring that disclosed Andrew Mayock, complete submission, setting forth the materials have been subject to Executive Secretary. facts and analysis that formed the basis appropriate redaction to protect [FR Doc. E9–13868 Filed 6–12–09; 8:45 am] for the determination. The TARP personal privacy, privileged or BILLING CODE 4810–25–P

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Part IV

Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Chapter 1; Parts 32, et al. Federal Acquisition Regulations; Federal Acquisition Circular 2005–33; FAR Case 2008–036, Trade Agreements; Final Rules, Interim Rule, and Small Entity Compliance Guide

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DEPARTMENT OF DEFENSE and National Aeronautics and Space DATES: For effective dates and comment Administration (NASA). dates, see separate documents, which GENERAL SERVICES follow. ADMINISTRATION ACTION: Summary presentation of rules. FOR FURTHER INFORMATION CONTACT: The NATIONAL AERONAUTICS AND SUMMARY: This document summarizes analyst whose name appears in the table SPACE ADMINISTRATION the Federal Acquisition Regulation below in relation to each FAR case. (FAR) rules agreed to by the Civilian Please cite FAC 2005–33 and the 48 CFR Chapter 1 Agency Acquisition Council and the specific FAR case numbers. For Defense Acquisition Regulations information pertaining to status or [Docket FAR 2009–0001, Sequence 4] Council in this Federal Acquisition publication schedules, contact the FAR Circular (FAC) 2005–33. A companion Federal Acquisition Regulation; Secretariat at (202) 501–4755. Federal Acquisition Circular 2005–33; document, the Small Entity Compliance Introduction Guide (SECG), follows this FAC. The FAC, including the SECG, is available AGENCIES: Department of Defense (DoD), via the Internet at http:// General Services Administration (GSA), www.regulations.gov.

LIST OF RULES IN FAC 2005–33

Item Subject FAR case Analyst

I ...... Trade Agreements—Costa Rica, Oman, and Peru (Interim) ...... 2008–036 Murphy. II ...... Contractor’s Request for Progress Payments ...... 2005–032 Murphy.

SUPPLEMENTARY INFORMATION: Item II—Contractor’s Request for Dated: June 9, 2009. Summaries for each FAR rule follow. Progress Payments (FAR Case 2005– Shay D. Assad, For the actual revisions and/or 032) Director of Defense Procurement and amendments to these FAR cases, refer to Acquisition Policy. the specific item number and subject set This final rule converts the proposed rule published at 73 FR 19035 on April Dated: June 5, 2009. forth in the documents following these Rodney P. Lantier, item summaries. 8, 2008, to a final rule with one editorial change. This final rule incorporates Acting Senior Procurement Executive, Office FAC 2005–33 amends the FAR as improvements related to requests for of the Chief Acquisition Officer, U.S. General Services Administration. specified below: progress payments and the Standard Item I—Trade Agreements—Costa Rica, Form (SF) 1443, Contractor’s Request for Dated: June 8, 2009. Oman, and Peru (FAR Case 2008–036) Progress Payments, used to request William P. McNally, (Interim) those progress payments. Assistant Administrator for Procurement, Dated: June 9, 2009. National Aeronautics and Space This interim rule allows contracting Administration. Al Matera, officers to purchase the goods and [FR Doc. E9–13979 Filed 6–12–09; 8:45 am] services of Costa Rica, Oman, and Peru Director, Office of Acquisition Policy. BILLING CODE 6820–EP–S without application of the Buy Federal Acquisition Circular American Act if the acquisition is subject to the applicable trade Federal Acquisition Circular (FAC) DEPARTMENT OF DEFENSE agreements. The free trade agreements 2005–33 is issued under the authority of GENERAL SERVICES with Costa Rica, Oman, and Peru join the Secretary of Defense, the ADMINISTRATION the North American Free Trade Administrator of General Services, and the Administrator for the National Agreement (NAFTA), the Australia, NATIONAL AERONAUTICS AND Bahrain, Chile, Morocco, and Singapore Aeronautics and Space Administration. SPACE ADMINISTRATION Free Trade Agreements, and the Unless otherwise specified, all Dominican Republic-Central America- Federal Acquisition Regulation (FAR) 48 CFR Parts 25 and 52 United States Free Trade Agreement and other directive material contained (CAFTA–DR) with respect to the [FAC 2005–33; FAR Case 2008–036; Item in FAC 2005–33 is effective June 15, I; Docket 2009–0019, Sequence 1] Dominican Republic, El Salvador, 2009 except for Item II, which is Guatemala, Honduras, and Nicaragua, effective July 15, 2009. RIN 9000–AL23 which are already in the FAR. Federal Acquisition Regulation; FAR The threshold for supplies and Case 2008–036, Trade Agreements— services is $67,826 for the CAFTA–DR Costa Rica, Oman, and Peru and $194,000 for the Oman and Peru FTAs. The threshold for construction is AGENCIES: Department of Defense (DoD), $7,443,000 for the CAFTA–DR and the General Services Administration (GSA), Peru FTA and $8,817,449 for the Oman and National Aeronautics and Space FTA. Administration (NASA). ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Oman Free Trade Agreement, and the the World Trade Organization Acquisition Council and the Defense United States-Peru Trade Promotion Government Procurement Agreement. Acquisition Regulations Council Agreement. This is a significant regulatory action (Councils) have agreed on an interim Congress approved these trade and, therefore, was subject to review rule amending the Federal Acquisition agreements in the Dominican under Section 6(b) of Executive Order Regulation (FAR) to implement the Republic—Central America—United 12866, Regulatory Planning and Review, Dominican Republic—Central States Free Trade Agreement dated September 30, 1993. This rule is America—United States Free Trade Implementation Act (Pub. L. 109–53), not a major rule under 5 U.S.C. 804. Agreement with respect to Costa Rica, the United States-Oman Free Trade B. Regulatory Flexibility Act the United States-Oman Free Trade Agreement Implementation Act (Pub. L. Agreement, and the United States-Peru 109–283) (19 U.S.C. 3805 note), and the This interim rule is not expected to Trade Promotion Agreement. United States-Peru Trade Promotion have a significant economic impact on a substantial number of small entities DATES: Effective Date: June 15, 2009. Agreement Implementation Act (Pub. L. within the meaning of the Regulatory Comment Date: Interested parties 110–138) (19 U.S.C. 3805 note). These Flexibility Act, 5 U.S.C. 601, et seq. should submit written comments to the Acts waive the applicability of the Buy Although the rule opens up Government Regulatory Secretariat on or before American Act for some foreign supplies procurement to the goods and services August 14, 2009 to be considered in the and construction materials from Costa of Costa Rica, Oman, and Peru, the formulation of a final rule. Rica, Oman, and Peru and specify procurement procedures designed to Councils do not anticipate any ADDRESSES: Submit comments significant economic impact on U.S. identified by FAC 2005–33, FAR case ensure fairness in the acquisition of supplies and services. small businesses. The Department of 2008–036, by any of the following Defense only applies the trade This interim rule adds Costa Rica, methods: agreements to the non-defense items • Oman, and Peru to the definition of Regulations.gov: http:// listed at DFARS 225.401–70, and ‘‘Free Trade Agreement country.’’ The www.regulations.gov. acquisitions that are set aside for small rule also deletes Costa Rica from the Submit comments via the Federal businesses are exempt. Therefore, the definition of ‘‘Caribbean Basin country’’ eRulemaking portal by inputting ‘‘FAR Councils have not performed an Initial because, in accordance with Section Case 2008–036’’ under the heading Regulatory Flexibility Analysis. The 201(a)(3) of Pub. L. 109–53, when the ‘‘Comment or Submission’’. Select the Councils invite comments from small CAFTA-DR agreement enters into force link ‘‘Send a Comment or Submission’’ business concerns and other interested with respect to a country, that country that corresponds with FAR Case 2008– parties on this issue. The Councils will is no longer designated as a beneficiary 036. Follow the instructions provided to also consider comments from small country for purposes of the Caribbean complete the ‘‘Public Comment and entities concerning the affected FAR Basin Economic Recovery Act. Submission Form’’. Please include your parts 25 and 52 in accordance with 5 The excluded services for the Oman name, company name (if any), and U.S.C. 610. Interested parties should and Peru FTAs are the same as for the ‘‘FAR Case 2008–036’’ on your attached submit such comments separately and Bahrain FTA, CAFTA-DR, Chile FTA, document. should cite 5 U.S.C. 601, et seq. (FAR • Fax: 202–501–4067. and NAFTA. Costa Rica has the same Case 2008–036), in correspondence. • Mail: General Services thresholds as the other CAFTA–DR Administration, Regulatory Secretariat countries. C. Paperwork Reduction Act (VPR), 1800 F Street, NW., Room 4041, The threshold for supply and service The Paperwork Reduction Act does ATTN: Hada Flowers, Washington, DC contracts of the Oman and Peru FTAs is apply, because the interim rule affects 20405. $194,000. Like the Morocco and Bahrain the certification and information Instructions: Please submit comments FTAs, the Oman and Peru FTA collection requirements in the only and cite FAC 2005–33, FAR case thresholds for supplies and services is provisions at FAR 52.212–3, 52.225–4, 2008–036, in all correspondence related higher than the thresholds for the other 52.225–6, and 52.225–11 currently to this case. All comments received will FTAs. Therefore, Omani and Peruvian approved under OMB clearances 9000– be posted without change to http:// end products are not covered by the Buy 0136 (Commercial Item Acquisition: www.regulations.gov, including any American Act—Free Trade FAR Sections Affected: Part 12; 52.212– personal and/or business confidential Agreements—Israeli Trade Act 1, and 52.212–3), 9000–0130 (Buy information provided. provision and clause (FAR 52.225–3 and America Act, Trade Agreements Act FOR FURTHER INFORMATION CONTACT: For 52.225–4). Certificate: FAR Sections Affected: clarification of content, contact Ms. For construction contracts, the Oman 52.225–4), 9000–0025 (Buy American Meredith Murphy, Procurement FTA threshold is $8,817,449 and the Act, Trade Agreements Act Certificate: Analyst, at (202) 208–6925. For Peru FTA threshold is $7,443,000. Like FAR Sections Affected: 52.225–6), and information pertaining to status or NAFTA and the Bahrain FTA, the 9000–0141 (Buy America Act— publication schedules, contact the Omani threshold for construction is Construction: FAR Sections Affected: Regulatory Secretariat at (202) 501– higher than the thresholds of the other Subpart 25.2, 52.225–9, and 52.225–11) 4755. Please cite FAC 2005–33, FAR FTAs. Therefore Omani construction respectively. While the FAR Secretariat case 2008–036. material, along with Bahrainian and believes this impact to be negligible, SUPPLEMENTARY INFORMATION: Mexican construction material, is comments are invited on the burden and excluded from coverage under the Buy A. Background number of entities affected as part of American Act—Construction Materials this rulemaking. This rule amends FAR Part 25 and the under the Trade Agreements provision corresponding clauses in Part 52 to and clause for acquisitions less than D. Determination to Issue an Interim implement the Dominican Republic— $8,817,449 (52.225–11 Alternate I and Rule Central America—United States Free 52.225–12 Alternate II, respectively). A determination has been made under Trade Agreement (CAFTA–DR) with Canadian construction material is not the authority of the Secretary of Defense respect to Costa Rica, the United States- excluded, because it is covered under (DoD), the Administrator of General

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Services (GSA), and the Administrator Costa Rica, Dominican’’ in their place, (vi) CAFTA–DR (The Dominican of the National Aeronautics and Space and removing the word ‘‘Nicaragua, or’’ Republic-Central America-United States Administration (NASA) that urgent and and adding ‘‘Nicaragua, Oman, Peru, or’’ Free Trade Agreement, as approved by compelling reasons exist to promulgate in its place. Congress in the Dominican Republic- this interim rule without prior ■ The revised text reads as follows: Central America-United States Free opportunity for public comment. This Trade Agreement Implementation Act action is necessary because these free 25.003 Definitions. (Pub. L. 109–53) (19 U.S.C. 4001 note)); trade agreements all took effect on * * * * * (vii) Bahrain FTA (the United States- January 1, 2009. However, pursuant to Designated country * * * Bahrain Free Trade Agreement, as Pub. L. 98–577 and FAR 1.501, the (2) A Free Trade Agreement country approved by Congress in the United Councils will consider public comments (Australia, Bahrain, Canada, Chile, States-Bahrain Free Trade Agreement received in response to this interim rule Costa Rica, Dominican Republic, El Implementation Act (Pub. L. 109–169) in the formation of the final rule. Salvador, Guatemala, Honduras, (19 U.S.C. 3805 note)); Mexico, Morocco, Nicaragua, Oman, (viii) Oman FTA (the United States- List of Subjects in 48 CFR Parts 25 and Peru, or Singapore); Oman Free Trade Agreement, as 52 * * * * * approved by Congress in the United Government procurement. ■ 3. Amend section 25.400 by revising States-Oman Free Trade Agreement Dated: June 9, 2009. paragraphs (a)(2)(iii) through (a)(2)(vii), Implementation Act (Pub. L. 109–283) Al Matera, and adding paragraphs (a)(2)(viii) and (19 U.S.C. 3805 note)); and Director, Office of Acquisition Policy. (a)(2)(ix) to read as follows: (ix) Peru FTA (the United States-Peru Trade Promotion Agreement, as ■ Therefore, DoD, GSA, and NASA 25.400 Scope of Subpart. approved by Congress in the United amend 48 CFR parts 25 and 52 as set (a) * * * States-Peru Trade Promotion Agreement forth below: (2) * * * Implementation Act (Pub. L. 110–138) ■ 1. The authority citation for 48 CFR (iii) Singapore FTA (the United (19 U.S.C. 3805 note)); parts 25 and 52 continues to read as States-Singapore Free Trade Agreement, * * * * * follows: as approved by Congress in the United Authority: 40 U.S.C. 121(c); 10 U.S.C. States-Singapore Free Trade Agreement 25.401 [Amended] chapter 137; and 42 U.S.C. 2473(c). Implementation Act (Pub. L. 108–78) ■ 4. Amend section 25.401 in paragraph (19 U.S.C. 3805 note)); PART 25—FOREIGN ACQUISITION (b), in the table heading, by removing (iv) Australia FTA (the United States- from the fourth column ‘‘Bahrain, FTA, ■ 2. Amend section 25.003 by— Australia Free Trade Agreement, as CAFTA–DR, Chile FTA, and NAFTA’’ ■ a. Removing from the definition approved by Congress in the United and adding ‘‘Bahrain FTA, CAFTA–DR, ‘‘Caribbean Basin country’’ the words States-Australia Free Trade Agreement Chile FTA, NAFTA, Oman FTA and ‘‘Costa Rica,’’; Implementation Act (Pub. L. 108–286) Peru FTA’’ in its place. ■ b. Revising paragraph (2) of the (19 U.S.C. 3805 note)); ■ 5. Amend section 25.402 by revising definition ‘‘Designated country’’; and (v) Morocco FTA (The United States— the table following paragraph (b) to read removing from paragraph (4) the words Morocco Free Trade Agreement, as as follows: ‘‘Costa Rica’’; and approved by Congress in the United ■ c. Removing from the definition ‘‘Free States—Morocco Free Trade Agreement 25.402 General. Trade Agreement country’’ the words Implementation Act (Pub. L. 108–302) * * * * * ‘‘Chile, Dominican’’ and adding ‘‘Chile, (19 U.S.C. 3805 note)); (b) * * *

Supply Contract Service Contract Construction Trade Agreement (equal to or (equal to or Contract (equal exceeding) exceeding) to or exceeding)

WTO GPA ...... $194,000 $194,000 $7,443,000 FTAs Australia FTA ...... 67,826 67,826 7,443,000 Bahrain FTA ...... 194,000 194,000 8,817,449 CAFTA–DR (Costa Rica, Dominican Republic, El Salvador, Guatemala, Hon- duras, and Nicaragua) ...... 67,826 67,826 7,443,000 Chile FTA ...... 67,826 67,826 7,443,000 Morocco FTA ...... 194,000 194,000 7,443,000 NAFTA –Canada ...... 25,000 67,826 8,817,449 –Mexico ...... 67,826 67,826 8,817,449 Oman FTA ...... 194,000 194,000 8,817,449 Peru FTA ...... 194,000 194,000 7,443,000 Singapore FTA ...... 67,826 67,826 7,443,000 Israeli Trade Act ...... 50,000 — —

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PART 52—SOLICITATION PROVISIONS (2) In the case of an article that consists in ‘‘Bahrain, Mexico, or Oman’’ in its place AND CONTRACT CLAUSES whole or in part of materials from another (twice); country, has been substantially transformed ■ 4. Revising paragraph (b)(1); and 52.212–3 [Amended] in Bahrain, Morocco, Oman, or Peru into a ■ 5. Removing from paragraph (b)(2) new and different article of commerce with ■ 6. Amend section 52.212–3 by ‘‘other than Bahrainian or Mexican’’ and a name, character, or use distinct from that adding ‘‘other than Bahrainian, revising the date of the provision to read of the article or articles from which it was ‘‘(JUN 2009)’’; and by removing from transformed. The term refers to a product Mexican, or Omani’’ in its place. ■ paragraphs (g)(1)(i) and (g)(1)(ii) offered for purchase under a supply contract, The revised text reads as follows: ‘‘Bahrainian or Moroccan’’ and adding but for purposes of calculating the value of 52.225–11 Buy American Act— ‘‘Bahrainian, Moroccan, Omani, or the end product includes services (except Construction Materials Under Trade Peruvian’’ in its place each time it transportation services) incidental to the Agreements. appears (three times). article, provided that the value of those incidental services does not exceed that of * * * * * ■ 7. Amend section 52.212–5 by the article itself. Buy American Act—Construction revising the date of the clause, and * * * * * paragraphs (b)(32)(i) and (b)(33) to read Materials Under Trade Agreements (JUN Free Trade Agreement country means 2009) as follows: Australia, Bahrain, Canada, Chile, Costa Rica, Dominican Republic, El Salvador, Guatemala, (a) Definitions. * * * 52.212–5 Contract Terms and Conditions Honduras, Mexico, Morocco, Nicaragua, Required to Implement Statutes or * * * * * Oman, Peru, or Singapore. Executive Orders—Commercial Items. Designated country * * * * * * * * (2) A Free Trade Agreement country * * * * * (Australia, Bahrain, Canada, Chile, Costa Contract Terms and Conditions 52.225–4 [Amended] Rica, Dominican Republic, El Salvador, Required To Implement Statutes or ■ 9. Amend section 52.225–4 by— Guatemala, Honduras, Mexico, Morocco, Nicaragua, Oman, Peru, or Singapore); Executive Orders—Commercial Items ■ a. Revising the date of the provision (JUN 2009) to read ‘‘(JUN 2009)’’; and * * * * * ■ b. Removing from paragraphs (a) and Alternate I (JUN 2009). * * * * * * * * (b) ‘‘Bahrainian or Moroccan’’ and * * * * * (b) * * * (b) Construction materials. (1) This clause ll (32)(i) 52.225–3, Buy American Act— adding ‘‘Bahrainian, Moroccan, Omani, implements the Buy American Act (41 U.S.C. Free Trade Agreements—Israeli Trade Act or Peruvian’’ in its place each time it 10a–10d) by providing a preference for (JUN 2009) (41 U.S.C. 10a–10d, 19 U.S.C. appears (three times). domestic construction material. In 3301 note, 19 U.S.C. 2112 note, 19 U.S.C. ■ 10. Amend section 52.225–5 by— accordance with 41 U.S.C. 431, the 3805 note, Pub. L. 108–77, 108–78, 108–286, ■ a. Revising the date of the clause; and component test of the Buy American Act is 108–302, 109–53, 109–169, 109–283, and ■ b. Revising paragraph (2) in the waived for construction material that is a 110–138). definition ‘‘Designated country’’; and COTS item (See FAR 12.505(a)(2)). In * * * * * removing from paragraph (4) of that addition, the Contracting Officer has ll (33) 52.225–5, Trade Agreements (JUN definition the words ‘‘Costa Rica,’’. determined that the WTO GPA and all the 2009) (19 U.S.C. 2501, et seq., 19 U.S.C. 3301 ■ The revised text reads as follows: Free Trade Agreements except the Bahrain note). FTA, NAFTA, and the Oman FTA apply to * * * * * 52.225–5 Trade Agreements. this acquisition. Therefore, the Buy American ■ * * * * * Act restrictions are waived for designated 8. Amend section 52.225–3 by— country construction materials other than ■ a. Revising the date of the clause; Trade Agreements (JUN 2009) Bahrainian, Mexican, or Omani construction ■ b. Revising the definitions materials. (a) * * * ‘‘Bahrainian or Moroccan end product’’ * * * * * and ‘‘Free Trade Agreement country’’; Designated country * * * (2) A Free Trade Agreement country ■ 12. Amend section 52.225–12 in and (Australia, Bahrain, Canada, Chile, Costa ■ c. Removing from paragraph (c) ‘‘the Alternate II by— Rica, Dominican Republic, El Salvador, ■ a. Revising the date of Alternate II; Bahrain and Morocco FTAs’’ and adding Guatemala, Honduras, Mexico, Morocco, ■ b. Removing from the introductory ‘‘the Bahrain, Morocco, Oman, and Peru Nicaragua, Oman, Peru, or Singapore); paragraph text ‘‘Bahrainian or Mexican’’ FTAs’’ in its place, and removing ‘‘other * * * * * and adding ‘‘Bahrainian, Mexican, or than a Bahrainian or Moroccan’’ and ■ 11. Amend section 52.225–11 by— Omani’’ in its place; adding ‘‘other than a Bahrainian, ■ a. Revising the date of the clause; ■ c. Revising paragraph (d)(1); and Moroccan, Omani, or Peruvian’’ in its ■ b. Amending paragraph (a) in the ■ d. Removing from paragraph (d)(3) place each time it appears (twice). definition ‘‘Designated country’’ by— ‘‘Bahrainian or Mexican’’ and adding ■ The revised text reads as follows: ■ 1. Revising paragraph (2); and ‘‘Bahrainian, Mexican, or Omani’’ in its ■ 52.225–3 Buy American Act—Free Trade 2. Removing from paragraph (4) place. Agreements—Israeli Trade Act. ‘‘Costa Rica,’’; ■ c. Amending Alternate I, by— 52.225–12 Notice of Buy American Act * * * * * ■ 1. Revising the date of Alternate I; Requirement—Construction Materials Under Trade Agreements. Buy American Act—Free Trade ■ 2. Removing from the introductory Agreements—Israeli Trade Act (JUN paragraph text and in the definition * * * * * 2009) ‘‘Bahrainian or Mexican construction Alternate II (JUN 2009) * * * material’’ ‘‘Bahrainian or Mexican’’ and (d) Alternate offers. (1) When an offer * * * * * adding ‘‘Bahrainian, Mexican, or includes foreign construction material, (a) * * * except foreign construction material from a Bahrainian, Moroccan, Omani, or Peruvian Omani’’ in its place (twice); designated country other than Bahrain, ■ end product means an article that— 3. Removing from the definition Mexico, or Oman that is not listed by the (1) Is wholly the growth, product, or ‘‘Bahrainian or Mexican construction Government in this solicitation in paragraph manufacture of Bahrain, Morocco, Oman, or material’’ in paragraphs (1) and (2) (b)(3) of FAR clause 52.225–11, the offeror Peru ; or ‘‘Bahrain or Mexico’’ and adding also may submit an alternate offer based on

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use of equivalent domestic or designated No comments were received by the Councils approved this case as a final country construction material other than close of the public comment period on rule. Bahrainian, Mexican, or Omani construction June 9, 2008. Subsequently, one During a final review by the Councils’ material. comment was received from one * * * * * Acquisition Finance Team, it was commenter. The commenter specifically discovered that the last item in the [FR Doc. E9–13978 Filed 6–12–09; 8:45 am] took no issue with the proposed FAR ‘‘INSTRUCTIONS’’ section of the form BILLING CODE 6820–EP–S changes, but objected to the costs that on page 2 was labeled in error as would be incurred by its member pertaining to ‘‘Item 26.’’ However, the companies to make programming instruction actually refers to paragraph DEPARTMENT OF DEFENSE changes that ensue from altering the SF (f) of the ‘‘CERTIFICATION’’ section. 1443. The commenter reasoned that GENERAL SERVICES That correction has been made to the ‘‘(s)ince DOD’s goal is to significantly ADMINISTRATION form. In addition, a sentence was added expand the use of performance based to the SF 1443 instructions for Items payments, it would appear to be more NATIONAL AERONAUTICS AND 14a–14e to clarify that the ‘‘financing SPACE ADMINISTRATION cost effective not to incur significant expenditures on changes to a form (i.e., payments’’ to be included do not include interim payments under a cost 48 CFR Parts 32, 43, 52, and 53 SF 1443) that is part of a system (progress payments) that is no longer the reimbursement contract. [FAC 2005–33; FAR Case 2005–032; Item preferred system for providing financing This is not a significant regulatory II; Docket 2008–0002; Sequence 1] payments.’’ action and, therefore, was not subject to RIN 9000–AI47 The Councils were puzzled at the review under Section 6(b) of Executive commenter’s cost estimate of $87,000 to Order 12866, Regulatory Planning and Federal Acquisition Regulation; FAR update software to use the new SF 1443 Review, dated September 30, 1993. This Case 2005–032, Contractor’s Request because the changes incorporated into rule is not a major rule under 5 U.S.C. for Progress Payments the SF 1443 by this case were, generally, 804. necessitated by prior changes to the AGENCIES: Department of Defense (DoD), B. Regulatory Flexibility Act General Services Administration (GSA), paid-cost rule and other changes to FAR and National Aeronautics and Space Part 32. These changes had been in The Department of Defense, the Administration (NASA). effect for some time, so contractors General Services Administration, and using SF 1443 to request progress ACTION: Final rule. the National Aeronautics and Space payments have already made changes to Administration certify that this final SUMMARY: The Civilian Agency their software to conform their progress rule will not have a significant Acquisition Council and the Defense payment requests to the updated FAR economic impact on a substantial Acquisition Regulations Council text. number of small entities within the (Councils) have agreed on a final rule The commenter, an association meaning of the Regulatory Flexibility amending the Federal Acquisition representing large defense aerospace Act, 5 U.S.C. 601, et seq., because the Regulation (FAR) to incorporate corporations, was requested to provide changes are designed to simplify the improvements related to requests for the cost analysis upon which it based its form and improve clarity. (See also, the progress payments and the Standard estimate of the cost to reprogram Background section above for a Form (SF) 1443, Contractor’s Request for software in order to enable electronic thorough discussion of lack of impact Progress Payments, used to request generation and submittal of the SF 1443 on small entities.) those progress payments. Changes made to request a progress payment. The to the Standard Form as published in commenter subsequently provided data C. Paperwork Reduction Act the proposed rule include correction of supporting its estimate of approximately misspellings, and an editorial change $87,000 per contractor. This estimate The Paperwork Reduction Act does made at Item 4 to better describe the and the supporting data were forwarded apply; however, these changes to the order number. to the Small Business Administration FAR do not impose additional DATES: Effective Date: July 15, 2009. (SBA) Office of Advocacy for review information collection requirements to the paperwork burden previously FOR FURTHER INFORMATION CONTACT: For specifically to determine the impact of approved under OMB Control Number clarification of content, contact Ms. modifying the SF 1443 on small 9000–0010. Meredith Murphy, Procurement businesses. Two independent reviews Analyst, at (202) 208–6925. For were conducted, one by the SBA’s List of Subjects in 48 CFR Parts 32, 43, information pertaining to status or regulatory economist and one by an 52, and 53 publication schedules, contact the outside small business expert selected Regulatory Secretariat, 1800 F Street, by the SBA. Neither of these reviews Government procurement. NW, Room 4041, Washington, DC discovered a substantial economic Dated: June 9, 2009. impact on a significant number of small 20405, (202) 501–4755. Please cite FAC Al Matera, 2005–33, FAR case 2005–032. entities. Director, Office of Acquisition Policy. SUPPLEMENTARY INFORMATION: Further, the Councils did not find the commenter’s rationale regarding ■ A. Background Therefore, DoD, GSA, and NASA performance-based payments amend 48 CFR parts 32, 43, 52, and 53 The Councils published a proposed convincing. While it is the goal of as set forth below: rule in the Federal Register at 73 FR Federal Government agencies, not just ■ 19035 on April 8, 2008, to (1) address DoD, to use performance-based 1. The authority citation for 48 CFR revisions necessary to implement the payments wherever possible, there parts 32, 43, 52, and 53 continues to paid-cost rule and (2) simplify the SF remain many circumstances in which read as follows: 1443 and related regulations and progress payments are an important Authority: 40 U.S.C. 121(c); 10 U.S.C. instructions to improve clarity. financing mechanism. Therefore, the chapter 137; and 42 U.S.C. 2473(c).

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PART 32—CONTRACT FINANCING the Progress Payments clause shall be in costs in excess of the contract price of the writing. items. ■ 2. Amend section 32.001 by adding, in * * * * * * * * * * alphabetical order, the definition (f) Fair value of undelivered work. (c) * * * ‘‘Liquidate’’ to read as follows: Progress payments must be (5) The fair value of the undelivered work is less than the amount of unliquidated 32.001 Definitions. commensurate with the fair value of progress payments for that work. work accomplished in accordance with * * * * * contract requirements. The contracting * * * * * Liquidate means to decrease a (g) Reports, forms, and access to records. officer must adjust progress payments payment for an accepted supply item or (1) The Contractor shall promptly furnish when necessary to ensure that the fair service under a contract for the purpose reports, certificates, financial statements, and value of undelivered work equals or of recouping financing payments other pertinent information (including exceeds the amount of unliquidated previously paid to the contractor. estimates to complete) reasonably requested progress payments. On loss contracts, by the Contracting Officer for the * * * * * the application of a loss ratio as administration of this clause. Also, the ■ 3. Amend section 32.501–3 by provided at paragraph (g) of this Contractor shall give the Government revising paragraph (a)(1) and the first subsection constitutes this adjustment. reasonable opportunity to examine and verify sentence of paragraph (a)(3) to read as the Contractor’s books, records, and (g) * * * accounts. follows: (1) * * * (2) The Contractor shall furnish estimates 32.501–3 Contract price. (i) Revise the current contract price to complete that have been developed or used in progress payment computations updated within six months of the date of the (a) * * * (the current ceiling price under fixed- progress payment request. The estimates to (1) Under firm-fixed price contracts, price incentive contracts) to include the complete shall represent the Contractor’s best the contract price is the current amount not-to-exceed amount for any pending estimate of total costs to complete all fixed by the contract plus the not-to- change orders and unpriced orders. remaining contract work required under the exceed amount for any unpriced contract. The estimates shall include * * * * * modifications. sufficient detail to permit Government verification. * * * * * PART 43—CONTRACT (3) Each Contractor request for progress (3) Under a fixed-price incentive MODIFICATIONS payment shall: contract, the contract price is the target (i) Be submitted on Standard Form 1443, price plus the not-to-exceed amount of 43.102 [Amended] Contractor’s Request for Progress Payment, or unpriced modifications. * * * ■ 6. Amend section 43.102 by removing the electronic equivalent as required by * * * * * from paragraph (b) the word agency regulations, in accordance with the ‘‘maximum’’ and adding the word form instructions and the contract terms; and 32.503–1 [Removed and Reserved] ‘‘ceiling’’ in its place. (ii) Include any additional supporting documentation requested by the Contracting ■ 4. Remove and reserve section Officer. 32.503–1. PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES * * * * * ■ 5. Amend section 32.503–6 by revising paragraphs (a)(3), (f), and ■ 7. Amend section 52.232–16 by PART 53—FORMS (g)(1)(i) to read as follows: revising the date of the clause; adding 53.232 [Amended] paragraph (a)(9); and revising 32.503–6 Suspension or reduction of ■ 8. Amend section 53.232 by removing payments. paragraphs (c)(5) and (g) to read as follows: ‘‘(10/82)’’ and adding ‘‘(JUL 2009)’’ in (a) * * * its place; and by removing ‘‘, as (3) In all cases, the contracting officer 52.232–16 Progress Payments. specified in 32.503.1’’. shall— * * * * * ■ 9. Amend section 53.301–1443 by (i) Act fairly and reasonably; Progress Payments (JUL 2009) revising the form to read as follows: (ii) Base decisions on substantial * * * * * evidence; and (a) * * * 53.301–1443 Contractor’s Request for (iii) Document the contract file. (9) The costs applicable to items delivered, Progress Payment. Findings made under paragraph (c) of invoiced, and accepted shall not include BILLING CODE 6820–EP–S

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[FR Doc. E9–13977 Filed 6–12–09; 8:45 am] and National Aeronautics and Space which precedes this document. These BILLING CODE 6820–EP–C Administration (NASA). documents are also available via the ACTION: Small Entity Compliance Guide. Internet at http://www.regulations.gov. DEPARTMENT OF DEFENSE FOR FURTHER INFORMATION CONTACT: Ms. SUMMARY: This document is issued Hada Flowers, Regulatory Secretariat, GENERAL SERVICES under the joint authority of the (202) 208–7282. For clarification of ADMINISTRATION Secretary of Defense, the Administrator content, contact the analyst whose name of General Services and the appears in the table below. NATIONAL AERONAUTICS AND Administrator of the National SPACE ADMINISTRATION Aeronautics and Space Administration. This Small Entity Compliance Guide has 48 CFR Chapter 1 been prepared in accordance with Section 212 of the Small Business [Docket FAR 2009–0002, Sequence 4] Regulatory Enforcement Fairness Act of Federal Acquisition Regulation; 1996. It consists of a summary of rules Federal Acquisition Circular 2005–33; appearing in Federal Acquisition Small Entity Compliance Guide Circular (FAC) 2005–33 which amend the FAR. Interested parties may obtain AGENCIES: Department of Defense (DoD), further information regarding these General Services Administration (GSA), rules by referring to FAC 2005–33,

LIST OF RULES IN FAC 2005–33

Item Subject FAR case Analyst

I ...... Trade Agreements—Costa Rica, Oman, and Peru (Interim) ...... 2008–036 Murphy. II ...... Contractor’s Request for Progress Payments ...... 2005–032 Murphy.

SUPPLEMENTARY INFORMATION: agreements. The free trade agreements Item II—Contractor’s Request for Summaries for each FAR rule follow. with Costa Rica, Oman, and Peru join Progress Payments (FAR Case 2005– For the actual revisions and/or the North American Free Trade 032) amendments to these FAR cases, refer to Agreement (NAFTA), the Australia, This final rule converts the proposed the specific item number and subject set Bahrain, Chile, Morocco, and Singapore rule published at 73 FR 19035 on April forth in the documents following these Free Trade Agreements, and the 8, 2008, to a final rule with one editorial item summaries. Dominican Republic-Central America- change. This final rule incorporates FAC 2005–33 amends the FAR as United States Free Trade Agreement improvements related to requests for specified below: (CAFTA–DR) with respect to the progress payments and the Standard Dominican Republic, El Salvador, Item I—Trade Agreements—Costa Rica, Form (SF) 1443, Contractor’s Request for Guatemala, Honduras, and Nicaragua, Oman, and Peru (FAR Case 2008–036) Progress Payments, used to request which are already in the FAR. (Interim) those progress payments. The threshold for supplies and This interim rule allows contracting services is $67,826 for the CAFTA-DR Dated: June 9, 2009. officers to purchase the goods and and $194,000 for the Oman and Peru Al Matera, services of Costa Rica, Oman, and Peru FTAs. The threshold for construction is Director, Office of Acquisition Policy. without application of the Buy $7,443,000 for the CAFTA-DR and the [FR Doc. E9–13976 Filed 6–12–09; 8:45 am] American Act if the acquisition is Peru FTA and $8,817,449 for the Oman BILLING CODE 6820–EP–C subject to the applicable trade FTA.

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Part V

The President Notice of June 12, 2009—Continuation of the National Emergency With Respect To The Actions and Policies of Certain Members of the Government of Belarus and Other Persons that Undermine Democratic Processes or Institutions in Belarus

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Federal Register Presidential Documents Vol. 74, No. 113

Monday, June 15, 2009

Title 3— Notice of June 12, 2009

The President Continuation of the National Emergency With Respect To The Actions and Policies of Certain Members of the Govern- ment of Belarus and Other Persons that Undermine Demo- cratic Processes or Institutions in Belarus

On June 16, 2006, by Executive Order 13405, the President declared a national emergency and ordered related measures blocking the property of certain persons undermining democratic processes or institutions in Belarus, pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701–1706). The President took this action to deal with the unusual and extraordinary threat to the national security and foreign policy of the United States constituted by the actions and policies of certain members of the Government of Belarus and other persons that have undermined democratic processes or institutions; committed human rights abuses related to political repression, including detentions and disappearances; and engaged in public corruption, including by diverting or misusing Belarusian public assets or by misusing public authority. Despite some positive developments in the past year, including the release of internationally recognized political prisoners, the actions and policies of certain members of the Government of Belarus and other persons continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States. Accordingly, the national emergency declared on June 16, 2006, and the measures adopted on that date to deal with that emergency, must continue in effect beyond June 16, 2009. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency declared in Executive Order 13405. This notice shall be published in the Federal Register and transmitted to the Congress.

THE WHITE HOUSE, June 12, 2009. [FR Doc. E9–14214 Filed 6–12–09; 1:00 pm] Billing code 3195–W9–P

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Reader Aids Federal Register Vol. 74, No. 113 Monday, June 15, 2009

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JUNE

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 301...... 26933 316...... 26933 Executive orders and proclamations 741–6000 1...... 28149 The United States Government Manual 741–6000 320...... 26933 182...... 28149 322...... 26933 Other Services 3 CFR 324...... 26933 Electronic and on-line services (voice) 741–6020 327...... 26933 Privacy Act Compilation 741–6064 Proclamations: 328...... 26933 Public Laws Update Service (numbers, dates, etc.) 741–6043 8387...... 26929 329...... 26933 TTY for the deaf-and-hard-of-hearing 741–6086 8387 (Correction)...... 27677 330...... 26933 8388...... 26931 334...... 26933 8389...... 27067 392...... 26933 ELECTRONIC RESEARCH 8390...... 27069 World Wide Web Administrative Orders: 10 CFR Full text of the daily Federal Register, CFR and other publications Memorandums: 50...... 28112 is located at: http://www.gpoaccess.gov/nara/index.html Memo. of May 27, 52...... 28112 2009 ...... 26277 Federal Register information and research tools, including Public 72...... 26285, 27423 Notices: Inspection List, indexes, and links to GPO Access are located at: 170...... 27642 Notice of June 12, http://www.archives.gov/federallregister 171...... 27642 2009 ...... 28437 E-mail Proposed Rules: Presidential 50...... 26303, 27724 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Determinations: 52...... 27724 an open e-mail service that provides subscribers with a digital No. 2009-19 of June 5, 70...... 26814 form of the Federal Register Table of Contents. The digital form 2009 ...... 27903 72...... 26310, 27469 of the Federal Register Table of Contents includes HTML and 5 CFR 430...... 26816 PDF links to the full text of each document. 431...... 26596 Proposed Rules: 440...... 27945 To join or leave, go to http://listserv.access.gpo.gov and select 894...... 26302 Online mailing list archives, FEDREGTOC-L, Join or leave the list 11 CFR (or change settings); then follow the instructions. 7 CFR 9430...... 27905 PENS (Public Law Electronic Notification Service) is an e-mail 28...... 26771 service that notifies subscribers of recently enacted laws. 220...... 28154 12 CFR To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 301 ...... 26774, 27071, 27423 225...... 26077, 26081 and select Join or leave the list (or change settings); then follow 319...... 26511 229...... 26515 the instructions. 457...... 26281, 28154 337 ...... 26516, 27679, 27683 1467...... 26281 370...... 26521, 26941 FEDREGTOC-L and PENS are mailing lists only. We cannot Proposed Rules: 1410...... 28156 respond to specific inquiries. 205...... 26591 Proposed Rules: Reference questions. Send questions and comments about the 319...... 27456 34...... 27386 Federal Register system to: [email protected] 352...... 27456 208...... 27386 The Federal Register staff cannot interpret specific documents or 360...... 27456 365...... 27386 regulations. 361...... 27456 563...... 27386 920...... 26806 610...... 27386 Reminders. Effective January 1, 2009, the Reminders, including 1205...... 26810 761...... 27386 Rules Going Into Effect and Comments Due Next Week, no longer 1209...... 26984 1212...... 27470 appear in the Reader Aids section of the Federal Register. This 1220...... 27467 1230...... 26989 information can be found online at http://www.regulations.gov. 1770...... 26989 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 8 CFR longer appears in the Federal Register. This information can be 1...... 26933 13 CFR found online at http://bookstore.gpo.gov/. 100...... 26933 120...... 27243, 27426 103...... 26933 14 CFR FEDERAL REGISTER PAGES AND DATE, JUNE 204...... 26933 207...... 26933 23...... 26777 26077–26280...... 1 208...... 26933 25...... 26946, 26948 26281–26510...... 2 211...... 26933 34...... 26778 26511–26770...... 3 212...... 26933 36...... 27076 26771–26932...... 4 214...... 26514, 26933 39 ...... 26288, 26291, 27684, 26933–27070...... 5 216...... 26933 27686, 27689, 27691, 27693, 27071–27242...... 8 236...... 26933 27695, 27698, 27702, 27704, 27243–27422...... 9 244...... 26933 27906, 27908, 27911, 27913, 27423–27678...... 10 245...... 26933 27915, 27917 27679–27902...... 11 248...... 26933 71 ...... 27076, 27077, 27078 27903–28148...... 12 264...... 26933 95...... 26779 28149–28438...... 15 274a...... 26514, 26933 97...... 28156, 28158

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Proposed Rules: 4901...... 27080 4...... 26958 400...... 26965 23...... 26818 4902...... 27080 9...... 26788 Proposed Rules: 39 ...... 26312, 26315, 26317, 38...... 26092 30 CFR 1...... 26329 26322, 26994, 27254, 27257, 73 ...... 26826, 27484, 27985 27260, 27474, 27476, 27725, Proposed Rules: 39 CFR 27946 74...... 27263 20...... 26959 3020...... 26789 48 CFR 16 CFR 31 CFR Ch. 1...... 28426, 28434 40 CFR 1500...... 27248 30...... 28394 2...... 26981 Proposed Rules: 285...... 27432, 27707 51...... 26098 22...... 26981 321...... 26118, 26130 356...... 26084 52 ...... 26098, 26099, 26103, 25...... 28426 538...... 27433 322...... 26118, 26130 26525, 27442, 27708, 27711, 32...... 28430 Proposed Rules: 27714, 27716 43...... 28430 17 CFR 103...... 26996 62 ...... 27444, 27718, 27720, 52 ...... 26981, 28426, 28430 285...... 27730 211...... 27427 27722 53...... 28430 239...... 26782 33 CFR 72...... 27940 546...... 26107 274...... 26782 73...... 27940 552...... 26107 1...... 27435 74...... 27940 20 CFR 25...... 27435 77...... 27940 Proposed Rules: 2...... 26646 Proposed Rules: 66...... 27435 78...... 27940 416...... 27727 70...... 27435 180 ...... 26527, 26536, 26543, 4...... 26646 72...... 27435 617...... 27262 27447 12...... 26646 100...... 27435 618...... 27262 300...... 26962 39...... 26646 110...... 27435 665...... 27262 52...... 26646 117 ...... 26087, 26293, 26294, Proposed Rules: 671...... 27262 51...... 27002 26295, 26296, 26952, 27249, 52 ...... 26141, 26600, 27084, 27442 49 CFR 21 CFR 27731, 27737, 27738, 27957, 133...... 27435 1...... 26981 510...... 26951 135...... 27435 27973 520...... 27706 62...... 27444 Proposed Rules: 136...... 27435 387...... 27485 522...... 26951 137...... 27435 63...... 26142, 27265 524...... 26782 81...... 27957, 27973 541...... 27493 138...... 27435 578...... 28204 558...... 27919 155...... 27435 93...... 27085 300...... 27003 581...... 28209 23 CFR 157...... 27435 161...... 27435 42 CFR 634...... 28160 165 ...... 26087, 26089, 26297, 50 CFR 412...... 26546 26 CFR 26782, 26785, 26786, 26954, 17...... 26488 27435, 27932, 27934, 27936, Proposed Rules: 1 ...... 27079, 27080, 27868, 412...... 26600 216...... 26580 27938, 28163, 28165 218 ...... 28328, 28349, 28370 27920 166...... 27435 20...... 27079, 27080 44 CFR 635...... 26110, 26803 Proposed Rules: 648 ...... 26589, 27251, 27252 25...... 27080 100 ...... 26138, 26326, 27478 64...... 26569 660...... 26983 602...... 27868 110 ...... 26328, 27000, 27948 65...... 26572, 26577 Proposed Rules: 117...... 26820 67...... 28166 665...... 27253 1...... 27947 165 ...... 26138, 26823, 27481, Proposed Rules: 679...... 26804, 26805 20...... 26597 27953, 28199 67 ...... 26636, 26640, 28202 Proposed Rules: 17 ...... 27004, 27266, 27271, 28 CFR 36 CFR 45 CFR 27588 Proposed Rules: 223...... 26091 681...... 26793 226...... 27988 16...... 26598 261...... 26091 229...... 27739 47 CFR Proposed Rules: 300...... 26160 29 CFR 1253...... 27956 73 ...... 26299, 26300, 26801, 622 ...... 26170, 26171, 26827, 4001...... 27080 26802, 27454, 27944 26829 4022...... 28161 38 CFR 74...... 26300 635...... 26174 4044...... 28161 3...... 26956, 26958 90...... 27455 679...... 26183, 27498

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The text of laws is not H.R. 131/P.L. 111–25 enacted public laws. To published in the Federal Ronald Reagan Centennial subscribe, go to http:// LIST OF PUBLIC LAWS Register but may be ordered Commission Act (June 2, listserv.gsa.gov/archives/ in ‘‘slip law’’ (individual 2009; 123 Stat. 1767) publaws-l.html This is a continuing list of pamphlet) form from the public bills from the current Superintendent of Documents, Last List May 27, 2009 session of Congress which U.S. Government Printing Note: This service is strictly have become Federal laws. It Office, Washington, DC 20402 for E-mail notification of new may be used in conjunction (phone, 202–512–1808). The Public Laws Electronic laws. The text of laws is not with ‘‘P L U S’’ (Public Laws text will also be made Notification Service available through this service. Update Service) on 202–741– available on the Internet from (PENS) PENS cannot respond to 6043. This list is also GPO Access at http:// specific inquiries sent to this available online at http:// www.gpoaccess.gov/plaws/ address. www.archives.gov/federal- index.html. Some laws may PENS is a free electronic mail register/laws.html. not yet be available. notification service of newly

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