Vol. 76 Thursday, No. 150 August 4, 2011

Pages 47055–47422

OFFICE OF THE FEDERAL REGISTER

VerDate Mar 15 2010 19:55 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4710 Sfmt 4710 E:\FR\FM\04AUWS.LOC 04AUWS sroberts on DSK5SPTVN1PROD with PROPOSALS II Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011

The FEDERAL REGISTER (ISSN 0097–6326) is published daily, SUBSCRIPTIONS AND COPIES Monday through Friday, except official holidays, by the Office of the Federal Register, National Archives and Records PUBLIC Administration, Washington, DC 20408, under the Federal Register Subscriptions: Act (44 U.S.C. Ch. 15) and the regulations of the Administrative Paper or fiche 202–512–1800 Committee of the Federal Register (1 CFR Ch. I). The Assistance with public subscriptions 202–512–1806 Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402 is the exclusive distributor of the official General online information 202–512–1530; 1–888–293–6498 edition. Periodicals postage is paid at Washington, DC. Single copies/back copies: The FEDERAL REGISTER provides a uniform system for making Paper or fiche 202–512–1800 available to the public regulations and legal notices issued by Assistance with public single copies 1–866–512–1800 Federal agencies. These include Presidential proclamations and (Toll-Free) Executive Orders, Federal agency documents having general FEDERAL AGENCIES applicability and legal effect, documents required to be published Subscriptions: by act of Congress, and other Federal agency documents of public interest. Paper or fiche 202–741–6005 Documents are on file for public inspection in the Office of the Assistance with Federal agency subscriptions 202–741–6005 Federal Register the day before they are published, unless the issuing agency requests earlier filing. For a list of documents currently on file for public inspection, see www.ofr.gov. The seal of the National Archives and Records Administration authenticates the Federal Register as the official serial publication established under the Federal Register Act. Under 44 U.S.C. 1507, the contents of the Federal Register shall be judicially noticed. The Federal Register is published in paper and on 24x microfiche. It is also available online at no charge at www.fdsys.gov, a service of the U.S. Government Printing Office. The online edition of the Federal Register is issued under the authority of the Administrative Committee of the Federal Register as the official legal equivalent of the paper and microfiche editions (44 U.S.C. 4101 and 1 CFR 5.10). It is updated by 6:00 a.m. each day the Federal Register is published and includes both text and graphics from Volume 59, 1 (January 2, 1994) forward. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202-512-1800 or 866-512-1800 (toll free). E-mail, [email protected]. The annual subscription price for the Federal Register paper edition is $749 plus postage, or $808, plus postage, for a combined Federal Register, Federal Register Index and List of CFR Sections Affected (LSA) subscription; the microfiche edition of the Federal Register including the Federal Register Index and LSA is $165, plus postage. Six month subscriptions are available for one-half the annual rate. The prevailing postal rates will be applied to orders according to the delivery method requested. The price of a single copy of the daily Federal Register, including postage, is based on the number of pages: $11 for an issue containing less than 200 pages; $22 for an issue containing 200 to 400 pages; and $33 for an issue containing more than 400 pages. Single issues of the microfiche edition may be purchased for $3 per copy, including postage. Remit check or money order, made payable to the Superintendent of Documents, or charge to your GPO Deposit Account, VISA, MasterCard, American Express, or Discover. Mail to: U.S. Government Printing Office—New Orders, P.O. Box 979050, St. Louis, MO 63197-9000; or call toll free 1- 866-512-1800, DC area 202-512-1800; or go to the U.S. Government Online Bookstore site, see bookstore.gpo.gov. There are no restrictions on the republication of material appearing in the Federal Register. How To Cite This Publication: Use the volume number and the page number. Example: 76 FR 12345. Postmaster: Send address changes to the Superintendent of Documents, Federal Register, U.S. Government Printing Office, Washington, DC 20402, along with the entire mailing label from the last issue received.

.

VerDate Mar 15 2010 19:55 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4710 Sfmt 4710 E:\FR\FM\04AUWS.LOC 04AUWS sroberts on DSK5SPTVN1PROD with PROPOSALS III

Contents Federal Register Vol. 76, No. 150

Thursday, August 4, 2011

Agriculture Department Education Department See Forest Service NOTICES See Rural Utilities Service Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47177–47178 Alcohol and Tobacco Tax and Trade Bureau NOTICES Employment and Training Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals; Correction, 47297–47298 Training and Employment Guidance Letter No. 33–10; Special Procedures: Centers for Disease Control and Prevention Labor Certification Process for Itinerant Commercial NOTICES Beekeeping Employers in the H–2A Program, 47241– Statement of Organization, Functions, and Delegations of 47243 Authority, 47189–47190 Training and Employment Guidance Letter No. 15–06, Centers for Medicare & Medicaid Services Change 1, Special Procedures: RULES Labor Certification Process for Occupations Involved in Medicare Program: the Open Range Production of Livestock under the Hospice Wage Index for Fiscal Year 2012, 47302–47352 H–2A Program, 47243–47248 NOTICES Training and Employment Guidance Letter No. 16–06, Privacy Act; Systems of Records, 47190–47196 Change 1, Special Procedures: Labor Certification Process for Multi-State Custom Children and Families Administration Combine Owners/Operators under the H–2A NOTICES Program, 47248–47251 Agency Information Collection Activities; Proposals, Training and Employment Guidance Letter No. 17–06, Submissions, and Approvals: Change 1, Special Procedures: Request for Assistance for Child Victims of Human Labor Certification Process for Employers in the Itinerant Trafficking, 47196–47197 Animal Shearing Industry under the H–2A Program, 47251–47256 Civil Rights Commission Training and Employment Guidance Letter No. 32–10; NOTICES Special Procedures: Meetings; Sunshine Act, 47142 Labor Certification Process for Employers Engaged in Sheepherding and Goatherding Occupations under Coast Guard the H–2A Program, 47256–47262 PROPOSED RULES 2012 Rates for Pilotage on Great Lakes, 47095–47114 Energy Department See Western Area Power Administration Commerce Department NOTICES See Foreign-Trade Zones Board Energy Efficiency Program: See Industry and Security Bureau Test Procedure for Lighting Systems (Luminaires), 47178– See International Trade Administration 47180 See National Oceanic and Atmospheric Administration NOTICES Environmental Protection Agency Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47142–47143 RULES Opportunity for U.S. Businessmen and Women to Train in Approvals and Promulgations of Air Quality the Russian Federation, 47143 Implementation Plans: Delaware; Infrastructure Requirements for 1997 8-Hour Community Development Financial Institutions Fund Ozone and 1997 and 2006 Fine Particulate Matter NOTICES Standards, 47068–47074 Agency Information Collection Activities; Proposals, West Virginia; Infrastructure Requirements for 1997 8- Submissions, and Approvals, 47298–47299 Hour Ozone and 1997 and 2006 Fine Particulate Matter Standards, 47062–47068 Consumer Product Safety Commission Revision to State Implementation Plans: NOTICES California; South Coast Air Quality Management District, Meetings; Sunshine Act, 47177 47074–47076 Revision to the California State Implementation Plan: Defense Department San Joaquin Valley Unified Air Pollution Control District, NOTICES 47076–47077 Publication of Housing Price Inflation Adjustment, 47177 PROPOSED RULES Approvals and Promulgations of Air Quality Disability Employment Policy Office Implementation Plans: NOTICES Maryland; Preconstruction Permitting Requirements for Funds Availability; Add Us In Initiative, 47240–47241 Electric Generating Stations, 47090–47092

VerDate Mar<15>2010 19:33 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4748 Sfmt 4748 E:\FR\FM\04AUCN.SGM 04AUCN sroberts on DSK5SPTVN1PROD with PROPOSALS IV Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Contents

Approvals and Promulgations of Implementation Plans: Federal Mine Safety and Health Review Commission Reasonably Available Control Technology for Oxides of NOTICES Nitrogen for Specific Source in State of New Jersey, Meetings; Sunshine Act, 47183 47092–47094 Mandatory Reporting of Greenhouse Gases, 47392–47421 Federal Motor Carrier Safety Administration Revisions to State Implementation Plans: NOTICES California; South Coast Air Quality Management District, Qualification of Drivers; Exemption Applications; Diabetes 47094–47095 Mellitus, 47288–47296 NOTICES Meetings: Federal Trade Commission Chartered Clean Air Scientific Advisory Committee, NOTICES 47181–47182 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 47183–47189 Federal Aviation Administration RULES Federal Transit Administration Airworthiness Directives: NOTICES Pratt and Whitney Models PW4074 and PW4077 Transit Asset Management Pilot Program Funds, 47296– Turbofan Engines, 47056–47057 47297 Amendments of Class D and Class E Airspace: Columbus Lawson AAF, GA, 47060–47061 Fish and Wildlife Service Amendments of Class E Airspace: PROPOSED RULES Lakeland, FL, 47061–47062 Endangered and Threatened Wildlife and Plants: Policy Clarifying Definition of Actively Engaged for 90-Day Finding and 12-Month Determination on a Purposes of Inspector Authorization, 47058–47060 Petition To Revise Critical Habitat for the NOTICES Leatherback Sea Turtle, 47133–47139 Agency Information Collection Activities; Proposals, 90-Day Finding on a Petition To List Six Sand Dune Submissions, and Approvals: Beetles as Endangered or Threatened, 47123–47133 Commercial Aviation Safety Team Safety Enhancements, 47287–47288 Food and Drug Administration Survey of Airman Satisfaction with Aeromedical PROPOSED RULES Certification, 47287 Effective Date of Requirement for Premarket Approval for a Pacemaker Programmer, 47085–47089 Federal Communications Commission NOTICES Authorization of Emergency Use of Oral Formulations of PROPOSED RULES Doxycycline; Availability, 47197–47210 Wireless E911 Location Accuracy Requirements: Filing of Petitions for Food Additives and Color Additives; E911 Requirements for IP-Enabled Service Providers, Relocation in the Federal Register, 47210 47114–47123 Medical Devices: Safety and Effectiveness Summaries for Premarket Federal Emergency Management Agency Approval Applications; Availability, 47210–47211 NOTICES Performance of Drug and Biologics Firms in Conducting Major Disaster and Related Determinations: Postmarketing Requirements and Commitments; Ohio, 47221 Availability, 47211–47216 Pennsylvania, 47219 Puerto Rico, 47220 Foreign-Trade Zones Board Tennessee, 47220–47221 NOTICES Major Disaster Declarations: Approvals for Manufacturing Authority: Indiana; Amendment No. 2, 47223 Foreign-Trade Zone 153; Abbott Cardiovascular Systems, Montana; Amendment No. 3, 47221 Inc., Riverside County, CA, 47143–47144 Puerto Rico; Amendment No. 1, 47222–47223 Grants of Authority for Subzone Status: South Dakota; Amendment No. 5, 47221–47222 Halliburton Energy Services, Inc. (Barite Milling), Larose, Vermont; Amendment No. 1, 47222 LA, 47144 Wyoming; Amendment No. 1, 47222 Reorganizations under Alternative Site Framework: Foreign-Trade Zone 47, Boone County, KY, 47144 Federal Financial Institutions Examination Council NOTICES Forest Service Meetings: NOTICES Appraisal Subcommittee, 47182 Environmental Impact Statements; Availability, etc.: BEH Rangeland Allotments, Stanislaus National Forest, Federal Highway Administration CA, 47140–47141 NOTICES Final Directives for Forest Service Wind Energy Special Use Final Federal Agency Actions on Proposed Highway in Authorizations, etc., 47354–47390 California, 47288 Meetings: Big Horn County Resource Advisory Committee, 47141– Federal Maritime Commission 47142 NOTICES Ocean Transportation Intermediary License; Applicants, Health and Human Services Department 47182–47183 See Centers for Disease Control and Prevention

VerDate Mar<15>2010 19:33 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4748 Sfmt 4748 E:\FR\FM\04AUCN.SGM 04AUCN sroberts on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Contents V

See Centers for Medicare & Medicaid Services Partial Rescission of the Seventh Antidumping Duty See Children and Families Administration Administrative Review: See Food and Drug Administration Certain Frozen Fish Fillets from the Socialist Republic of See Health Resources and Services Administration Vietnam, 47149–47150 See National Institutes of Health Postponement of Preliminary Determinations of Antidumping Duty Investigations: Health Resources and Services Administration Galvanized Steel Wire from the People’s Republic of NOTICES China and Mexico, 47150–47151 Statement of Organization, Functions and Delegations of Preliminary Intents to Rescind New Shipper Reviews: Authority, 47216 Uncovered Innerspring Units from People’s Republic of China, 47151–47153 Homeland Security Department See Coast Guard International Trade Commission See Federal Emergency Management Agency NOTICES Housing and Urban Development Department Determinations: NOTICES Ammonium Nitrate from Russia, 47238 Agency Information Collection Activities; Proposals, Extension of Time Limit for Preliminary Results: Submissions, and Approvals: Ninth Administrative Review of Honey from the People’s Relocation and Real Property Acquisition, etc., 47223– Republic of China, 47238–47239 47224 Delegation of Authority for the Office of Public and Indian Justice Department Housing, 47224–47225 NOTICES Mortgage and Loan Insurance Programs Under the National Lodging of Settlement Agreements, 47239 Housing Act; Debenture Interest Rates, 47225–47226 Lodgings of Consent Decrees: Multifamily Loan Sale, 47226–47227 U.S. v. Caterpillar Inc., 47239–47240 Order of Succession for the Office of Public and Indian Housing, 47227–47228 Labor Department Redelegation of Authority to Office of Native American See Disability Employment Policy Office Program Area Office Administrators and Office See Employment and Training Administration Directors, 47228–47229 See Mine Safety and Health Administration Redelegation of Authority to Regional Public Housing NOTICES Directors, 47229–47231 Agency Information Collection Activities; Proposals, Redelegation of Authority to the Deputy Assistant Submissions, and Approvals, 47240 Secretaries for Public and Indian Housing, 47231– 47234 Land Management Bureau Industry and Security Bureau NOTICES NOTICES Alaska Native Claims Selection, 47234 Administrative Proceedings: Dominguez–Escalante National Conservation Area Advisory Jianwei Ding, et al., 47144–47146 Council; Nominations, 47234–47235 Environmental Impact Statements; Availability, etc.: Interior Department Proposed Stateline Solar Farm, San Bernardino County, See Fish and Wildlife Service CA, 47235–47236 See Land Management Bureau Realty Actions: See National Indian Gaming Commission Direct Sale of Public Land in Monterey County, CA, See Reclamation Bureau 47237

International Trade Administration Mine Safety and Health Administration NOTICES NOTICES Antidumping Duty Administrative Reviews and New Brookwood–Sago Mine Safety Grants; Solicitations, 47262– Shipper Reviews; Extensions of Time Limits for 47271 Preliminary Results: Certain Steel Nails from People’s Republic of China, Mine Safety and Health Federal Review Commission 47146 See Federal Mine Safety and Health Review Commission Antidumping Duty Administrative Reviews; Extensions of Time Limits for Final Results: Citric Acid and Certain Citrate Salts from People’s National Highway Traffic Safety Administration Republic of China, 47146–47147 RULES Antidumping Duty Administrative Reviews; Rescissions: Make Inoperative Exemptions: Pure Magnesium in Granular Form from People’s Vehicle Modifications to Accommodate People with Republic of China, 47147–47148 Disabilities, Head Restraints, 47078–47083 Applications for Duty-Free Entry of Scientific Instruments, 47148 National Indian Gaming Commission Export Trade Certificates of Review: PROPOSED RULES Wood Machinery Manufacturers of America, 47148– Meetings: 47149 Regulatory Review Schedule; Cancellation of Initiation of Five-Year (Sunset) Review; Correction, 47149 Consultation, 47089–47090

VerDate Mar<15>2010 19:33 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4748 Sfmt 4748 E:\FR\FM\04AUCN.SGM 04AUCN sroberts on DSK5SPTVN1PROD with PROPOSALS VI Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Contents

National Institutes of Health Securities and Exchange Commission NOTICES NOTICES Expediting Research Tools to NIH Licensees Through the Applications for Deregistration, 47278–47279 Use of Pay.gov for Rapid Processing of Royalty Self-Regulatory Organizations; Proposed Rule Changes: Payments, 47216–47217 Chicago Board Options Exchange, Inc., 47280–47283 Government-Owned Inventions; Availability for Licensing, EDGA Exchange, Inc., 47283–47285 47217–47218 EDGX Exchange, Inc., 47285–47286 Meetings: International Securities Exchange, LLC, 47279–47280 Center for Scientific Review, 47218–47219 National Heart, Lung, and Blood Institute, 47218 Small Business Administration National Institute of Neurological Disorders and Stroke NOTICES Amended, 47218 Disaster Declarations: National Oceanic and Atmospheric Administration Indiana; Amendment 2, 47287 RULES Minnesota, 47286 Fisheries of the Exclusive Economic Zone Off Alaska: Puerto Rico; Amendment 1, 47286–47287 Pacific Cod for American Fisheries Act Catcher/ Processors Using Trawl Gear in the Bering Sea and Transportation Department Aleutian Islands; Correction, 47083–47084 See Federal Aviation Administration NOTICES See Federal Highway Administration Agency Information Collection Activities; Proposals, See Federal Motor Carrier Safety Administration Submissions, and Approvals: See Federal Transit Administration California Signage Plan; Evaluation of Interpretive Signs, See National Highway Traffic Safety Administration 47154–47155 Cooperative Game Fish Tagging Report, 47154 Treasury Department High Seas Fishing Permit Application Information, See Alcohol and Tobacco Tax and Trade Bureau 47153–47154 See Community Development Financial Institutions Fund Meetings: Bering Sea and Aleutian Islands Crab Rationalization Program, 47155 Veterans Affairs Department Takes of Marine Mammals Incidental to Specified NOTICES Activities: Privacy Act; Computer Matching Program, 47299 Pile-Driving and Renovation Operations on the Trinidad Pier by the Cher-Ae Heights Indian Community, Western Area Power Administration 47155–47176 NOTICES 2021 Power Marketing Initiative Proposal: National Science Foundation Pick-Sloan Missouri Basin Program; Eastern Division, NOTICES 47180–47181 Implementation of Scientific Integrity Principles Draft Plan; Availability, 47271–47274 Nuclear Regulatory Commission Separate Parts In This Issue PROPOSED RULES Domestic Licensing of Source Material: Part II Amendments/Integrated Safety Analysis; Correction, Health and Human Services Department, Centers for 47085 Medicare & Medicaid Services, 47302–47352 Postal Regulatory Commission NOTICES Part III Post Office Closings, 47274–47275 Agriculture Department, Forest Service, 47354–47390 Postal Service Initiative on Retail Postal Locations, 47275– 47277 Part IV Environmental Protection Agency, 47392–47421 Reclamation Bureau NOTICES Meetings: Glen Canyon Dam Adaptive Management Work Group, Reader Aids 47237–47238 Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, Recovery Accountability and Transparency Board and notice of recently enacted public laws. NOTICES Privacy Act; Systems of Records, 47277–47278 To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http:// Rural Utilities Service listserv.access.gpo.gov and select Online mailing list RULES archives, FEDREGTOC-L, Join or leave the list (or change Emergency Restoration Plan, 47055–47056 settings); then follow the instructions.

VerDate Mar<15>2010 19:33 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4748 Sfmt 4748 E:\FR\FM\04AUCN.SGM 04AUCN sroberts on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Contents VII

CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

7 CFR 1730...... 47055 10 CFR Proposed Rules: 40...... 47085 14 CFR 39...... 47056 65...... 47058 71 (2 documents) ...... 47060, 47061 21 CFR Proposed Rules: 870...... 47085 25 CFR Proposed Rules: Ch. III ...... 47089 40 CFR 52 (4 documents) ...... 47062, 47068, 47074, 47076 Proposed Rules: 52 (3 documents) ...... 47090, 47092, 47094 98...... 47392 42 CFR 418...... 47302 46 CFR Proposed Rules: 401...... 47095 47 CFR Proposed Rules: 9...... 47114 49 CFR 595...... 47078 50 CFR 679...... 47083 Proposed Rules: 17 (2 documents) ...... 47123, 47133

VerDate Mar 15 2010 19:47 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4711 Sfmt 4711 E:\FR\FM\04AULS.LOC 04AULS sroberts on DSK5SPTVN1PROD with PROPOSALS 47055

Rules and Regulations Federal Register Vol. 76, No. 150

Thursday, August 4, 2011

This section of the FEDERAL REGISTER Regulatory Flexibility Act Certification Unfunded Mandates contains regulatory documents having general It has been determined that the applicability and legal effect, most of which This rule contains no Federal are keyed to and codified in the Code of Regulatory Flexibility Act is not mandates (under the regulatory Federal Regulations, which is published under applicable to this rule since the Rural provisions of Title II of the Unfunded 50 titles pursuant to 44 U.S.C. 1510. Utilities Service is not required by 5 Mandates Reform Act of 1995) for State, U.S.C. 551 et seq. or any other provision local, and tribal governments or the The Code of Federal Regulations is sold by of law to publish a notice of proposed private sector. Therefore, this rule is not the Superintendent of Documents. Prices of rulemaking with respect to the subject subject to the requirements of §§ 202 new books are listed in the first FEDERAL matter of this rule. and 205 of the Unfunded Mandates REGISTER issue of each week. Information Collection and Reform Act of 1995. Recordkeeping Requirements Executive Order 13132, Federalism DEPARTMENT OF AGRICULTURE The information collection burden The policies contained in this final associated with this rulemaking is Rural Utilities Service rule do not have any substantial direct approved under OMB control number effect on States, on the relationship 0572–0140. This rule contains no 7 CFR Part 1730 between the national government and additional information collection or the States, or on the distribution of RIN 0572–AC16 recordkeeping requirements under OMB power and responsibilities among the control number 0572–0140 that would various levels of government, nor does Emergency Restoration Plan (ERP) require approval under the Paperwork this final rule impose substantial direct AGENCY: Rural Utilities Service, USDA. Reduction Act of 1995 (44 U.S.C. compliance costs on State and local chapter 35). ACTION: Final rule. governments. Therefore, consultation E-Government Act Compliance with States is not required. SUMMARY: The Rural Utilities Service (RUS) is amending the requirements The Rural Utilities Service is Background established for Emergency Restoration committed to the E-Government Act, The Agency published a final rule on Plans (ERPs), currently mandated for all which requires government agencies in October 12, 2004, at 69 FR 60541 borrowers, to include a plan to comply general to provide the public the option requiring all borrowers to maintain an with the eligibility requirements to of submitting information or transacting Emergency Response Plan (ERP) that qualify for the Federal Emergency business electronically to the maximum details how the borrower will restore its Management Agency (FEMA) Public extent possible. system in the event of a system-wide Assistance Grant Program in the event National Environmental Policy Act outage resulting from a major natural or of a declared disaster. This amendment Certification manmade disaster or other causes. This will ensure that RUS borrowers have a The Agency has determined that this ERP requirement was not entirely new plan to maintain their eligibility to rule will not significantly affect the to the borrowers, as RUS had receive financial assistance from FEMA quality of the human environment as recommended similar ‘‘plans’’ in the in the event they incur eligible costs for defined by the National Environmental past. However, the need for an ERP disaster related system repair and Policy Act of 1969 (42 U.S.C. 4321 et requirement at that time was catalyzed restoration. seq.). Therefore, this action does not by increased sensitivities relating to DATES: September 6, 2011. require an environmental impact homeland security. FOR FURTHER INFORMATION CONTACT: statement or assessment. The purpose of the FEMA Public Donald Junta, USDA—Rural Utilities Assistance Grant Program is to provide Service, 1400 Independence Avenue, Catalog of Federal Domestic Assistance assistance to State, Tribal, and local SW., Stop 1569, Washington, DC 20250– The program described by this rule is governments, and certain types of 1569, telephone (202) 720–1900 or listed in the Catalog of Federal Domestic private non-profit organizations so that e-mail to [email protected]. Assistance Programs under number communities can quickly respond to SUPPLEMENTARY INFORMATION: 10.850, Rural Electrification Loans and and recover from major disasters or Loan Guarantees. This catalog is emergencies declared by the President. Executive Order 12866 available on a subscription basis from Recent FEMA audits conducted on This rule has been determined to be the Superintendent of Documents, the applications submitted by RUS not significant for purposes of Executive United States Government Printing borrowers have shown that borrowers Order 12866 and, therefore, has not Office, Washington, DC 20402–9325, have not always followed the policies been reviewed by the Office of telephone number (202) 512–1800 and and procedures set forth by FEMA for Management and Budget. at https://www.cfda.gov. disaster related repairs and restoration. FEMA recently created a draft document Executive Order 12988 Executive Order 12372 titled ‘‘FEMA Disaster Assistance Fact This final rule has been reviewed This rule is excluded from the scope Sheet 9580.6 (Electric Utility Repair under Executive Order 12988, Civil of Executive Order 12372, (Public and Private Nonprofit)). This Justice Reform. The Agency has Intergovernmental Consultation, which document contains sections on determined that this final rule meets the may otherwise require consultation with contracting, category of work, conductor applicable standards in § 3 of the State and local officials, pursuant to replacement, hazard mitigation, and Executive Order. USDA’s regulation at 7 CFR part 3015. repair of collateral damage that outline

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47056 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

FEMA requirements in these areas. It is For reasons discussed in the to prevent cracks from propagating into financially advantageous for borrowers preamble, the Agency amends 7 CFR, the disk bolt holes, which could result to qualify and receive disaster assistance Chapter XVII, part 1730 as follows: in a failure of the 15th stage HPC disk, funds for eligible work from FEMA in uncontained engine failure, and damage the event of a declared disaster or PART 1730—ELECTRIC SYSTEM to the airplane. emergency. When RUS borrowers do not OPERATIONS AND MAINTENANCE DATES: This AD is effective September 8, meet FEMA Public Assistance Grant ■ 1. The authority citation for part 1730 2011. eligibility requirements, they will be The Director of the Federal Register continues to read as follows: ineligible to receive disaster assistance approved the incorporation by reference funds. Authority: 7 U.S.C. 901 et seq., 1921 et of a certain publication listed in the AD Accordingly, the Agency published a seq., 6941 et seq. as of September 8, 2011. proposed rule on January 26, 2010, at 75 ■ 2. Amend § 1730.28 as follows: ADDRESSES: For service information FR 4006 proposing to amend the ERP ■ a. Remove the word ‘‘and’’ from the identified in this AD, contact Pratt & regulatory requirements to add that the end of paragraph (e)(4); Whitney, 400 Main St., East Hartford, ERP reflect compliance with all ■ b. Redesignating paragraph (e)(5) as CT 06108; telephone (860) 565–7700; requirements imposed by FEMA for (e)(6); and fax (860) 565–1605. You may review reimbursement of the cost of repairs and ■ c. Add paragraph (e)(5) to read as copies of the referenced service restoration of the borrower’s electric follows: information at the FAA, Engine & system incurred as the result of a Propeller Directorate, 12 New England declared disaster. § 1730.28 Emergency Restoration Plan (ERP). Executive Park, Burlington, MA. For Discussion of Comments and Changes information on the availability of this * * * * * RUS received one submission material at the FAA, call (781) 238– (e) * * * 7125. electronically on this proposed rule by * * * * * the March 29, 2010, comment deadline. (5) A section describing a plan to Examining the AD Docket The submission was received from the comply with the eligibility requirements You may examine the AD docket on National Rural Electric Cooperative to qualify for the FEMA Public the Internet at http:// Association (NRECA). The submission Assistance Grant Program; and www.regulations.gov; or in person at the is summarized below with the Agency’s * * * * * Docket Management Facility between responses as follows: 9 a.m. and 5 p.m., Monday through Issue 1: Commentor proposed Dated: July 22, 2011. Friday, except Federal holidays. The AD modifying the rule as proposed to add Jonathan Adelstein, docket contains this AD, the regulatory a cost/benefit consideration. Administrator, Rural Utilities Service. evaluation, any comments received, and Response: The Agency accepts the [FR Doc. 2011–19661 Filed 8–3–11; 8:45 am] observation that there are costs to other information. The address for the BILLING CODE P compliance. Money and time spent, Docket Office (phone: 800–647–5527) is delay in service restoration, and the Document Management Facility, U.S. possibility of consumer dissatisfaction Department of Transportation, Docket in an extended outage are relevant in DEPARTMENT OF TRANSPORTATION Operations, M–30, West Building Ground Floor, Room W12–140, 1200 power restoration decisions and Federal Aviation Administration sometimes any additional costs of New Jersey Avenue, SE., Washington, DC 20590. complying with FEMA’s eligibility rules 14 CFR Part 39 may outweigh the benefits of federal FOR FURTHER INFORMATION CONTACT: Ian financial assistance for reimbursement [Docket No. FAA–2010–1095; Directorate Dargin, Aerospace Engineer, Engine and support a decision by a borrower to Identifier 2009–NE–40–AD; Amendment 39– Certification Office, FAA, 12 New elect to pursue an alternative to 16742; AD 2011–14–07] England Executive Park, Burlington, MA 01803; phone: (781) 238–7178; fax: (781) competitively bidding a restoration job RIN 2120–AA64 as generally required by FEMA. The 238–7199; e-mail: [email protected]. final rule as published permits the Airworthiness Directives; Pratt & SUPPLEMENTARY INFORMATION: borrower to make such a determination. Whitney (PW) Models PW4074 and Discussion The rule only requires the borrower PW4077 Turbofan Engines develop a plan to comply with the We issued a notice of proposed FEMA requirements and be eligible to AGENCY: Federal Aviation rulemaking (NPRM) to amend 14 CFR apply for FEMA assistance. Administration (FAA), DOT. part 39 to include an airworthiness Issue 2: Commentor proposed a ACTION: Final rule. directive (AD) that would apply to the clarifying change that identifies the specified products. That NPRM borrower, rather than the ERP, as the SUMMARY: We are adopting a new published in the Federal Register on subject that ‘‘must comply with’’ FEMA airworthiness directive (AD) for the November 2, 2010, (75 FR 67253). That reimbursement rules. products listed above. This AD requires NPRM proposed to require removing the Response: Agency concurs. This removing the 15th stage HPC disk 15th stage HPC disk before 12,000 CSN, clarification is intended to avoid an within 12,000 cycles since new (CSN) or for any disks that exceed 12,000 CSN interpretation that would require the or, for any disks that exceed 12,000 CSN after the effective date of this AD, using ERP to contain a mini manual of how after the effective date of this AD using a drawdown plan that includes a BSI or to comply with the FEMA rules. a drawdown plan that includes a ECI of the rim for cracks. borescope inspection (BSI) or eddy List of Subjects in 7 CFR 1730 current inspection (ECI) of the rim for Comments Electric power; Loan program— cracks. This AD was prompted by We gave the public the opportunity to energy; Reporting and recordkeeping multiple shop findings of cracked 15th participate in developing this AD. We requirements; Rural areas. stage HPC disks. We are issuing this AD received no comments on the NPRM or

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47057

on the determination of the cost to the List of Subjects in 14 CFR Part 39 (ii) Within 1,200 cycles-since-last BSI, or public. Air transportation, Aircraft, Aviation (iii) Within 55 CIS after the effective date of this AD, whichever occurs later. safety, Incorporation by reference, Conclusion (3) If the BSI from paragraph (g)(2) of this Safety. We reviewed the relevant data and AD indicates the presence of a crack in the determined that air safety and the Adoption of the Amendment disk rim, but you can’t visually confirm a crack, perform an ECI within 5 CIS after the public interest require adopting the AD Accordingly, under the authority BSI. as proposed. delegated to me by the Administrator, (4) If you confirm a crack in the disk rim the FAA amends 14 CFR part 39 as Costs of Compliance using any inspection method, remove the follows: disk from service before further flight. We estimate that this AD will affect (h) Use paragraph 1.A. or 1.B. of the 44 engines installed on airplanes of U.S. PART 39—AIRWORTHINESS DIRECTIVES Accomplishment Instructions ‘‘For Engines registry. Prorated parts life will cost Installed on the Aircraft’’ or 1.A. or 1.B. of about $66,000 per 15th stage HPC disk. ■ 1. The authority citation for part 39 the Accomplishment Instructions ‘‘For Based on these figures, we estimate the continues to read as follows: Engines Removed from the Aircraft,’’ of PW total cost of the AD to U.S. operators to Service Bulletin PW4G–112–72–309, be $2,904,000. Authority: 49 U.S.C. 106(g), 40113, 44701. Revision 1, dated July 1, 2010 to perform the inspections. Authority for This Rulemaking § 39.13 [Amended] ■ Alternative Methods of Compliance Title 49 of the United States Code 2. The FAA amends § 39.13 by adding specifies the FAA’s authority to issue the following new airworthiness (i) The Manager, Engine Certification rules on aviation safety. Subtitle I, directive (AD): Office, has the authority to approve section 106, describes the authority of 2011–14–07 Pratt & Whitney: Amendment alternative methods of compliance for this AD if requested using the procedures found the FAA Administrator. Subtitle VII: 39–16742; Docket No. FAA–2010–1095; in 14 CFR 39.19. Aviation Programs, describes in more Directorate Identifier 2009–NE–40–AD. detail the scope of the Agency’s Effective Date Related Information authority. (a) This AD is effective September 8, 2011. (j) For more information about this AD, We are issuing this rulemaking under contact Ian Dargin, Aerospace Engineer, the authority described in subtitle VII, Affected ADs Engine Certification Office, FAA, 12 New part A, subpart III, section 44701: (b) None. England Executive Park, Burlington, MA ‘‘General requirements.’’ Under that Applicability 01803; phone: (781) 238–7178; fax: (781) 238–7199; e-mail: [email protected]. section, Congress charges the FAA with (c) This AD applies to Pratt & Whitney promoting safe flight of civil aircraft in (PW) PW4074 and PW4077 turbofan engines Material Incorporated by Reference air commerce by prescribing regulations with 15th stage high-pressure compressor (k) You must use Pratt & Whitney Service (HPC) disks, part number (P/N) 55H615, for practices, methods, and procedures Bulletin PW4G–112–72–309, Revision 1, installed. the Administrator finds necessary for dated July 1, 2010, to do the actions required safety in air commerce. This regulation Unsafe Condition by this AD, unless the AD specifies is within the scope of that authority (d) This AD results from multiple shop otherwise. because it addresses an unsafe condition findings of cracked 15th stage HPC disks. We (1) The Director of the Federal Register that is likely to exist or develop on are issuing this AD to prevent cracks from approved the incorporation by reference of products identified in this rulemaking propagating into the bolt holes of the 15th the service information contained in this AD action. stage HPC disk, which could result in a under 5 U.S.C. 552(a) and 1 CFR part 51. failure of the 15th stage HPC disk, (2) For service information identified in Regulatory Findings uncontained engine failure, and damage to this AD, contact Pratt & Whitney, 400 Main This AD will not have federalism the airplane. St., East Hartford, CT 06108; telephone (860) implications under Executive Order Compliance 565–7700; fax (860) 565–1605. (3) You may review copies of the service 13132. This AD will not have a (e) You are responsible for having the information at the FAA, Engine & Propeller substantial direct effect on the States, on actions required by this AD performed within the relationship between the national the compliance times specified unless the Directorate, 12 New England Executive Park, government and the States, or on the actions have already been done. Burlington, MA. For information on the distribution of power and (f) For 15th stage HPC disks that have 9,865 availability of this material at the FAA, call (781) 238–7125. responsibilities among the various or fewer cycles since new (CSN) on the effective date of this AD, remove the disk (4) You may also review copies of the levels of government. from service before accumulating 12,000 service information that is incorporated by For the reasons discussed above, I CSN. reference at the National Archives and certify that this AD: (g) For 15th stage HPC disks that have Records Administration (NARA). For (1) Is not a ‘‘significant regulatory accumulated more than 9,865 CSN on the information on the availability of this action’’ under Executive Order 12866, effective date of this AD, do the following: material at an NARA facility, call 202–741– (1) Remove the disk from service at the 6030, or go to http://www.archives.gov/ (2) Is not a ‘‘significant rule’’ under next piece-part exposure above 12,000 CSN, _ _ _ _ DOT Regulatory Policies and Procedures federal register/code of federal regulations/ not to exceed 2,135 cycles-in-service (CIS) ibr_locations.html. (44 FR 11034, February 26, 1979), after the effective date of this AD. (3) Will not affect intrastate aviation (2) For 15th stage HPC disks that are Issued in Burlington, Massachusetts, on in Alaska, and installed in the engine and exceed 12,000 June 24, 2011. CSN on the effective date of this AD, perform Peter A. White, (4) Will not have a significant a borescope inspection (BSI) or eddy current Acting Manager, Engine & Propeller economic impact, positive or negative, inspection (ECI) of the disk rim according to Directorate, Aircraft Certification Service. on a substantial number of small entities the following schedule: under the criteria of the Regulatory (i) Within 2,400 cycles-since-last [FR Doc. 2011–19476 Filed 8–3–11; 8:45 am] Flexibility Act. fluorescent penetrant inspection or ECI, or BILLING CODE 4910–13–P

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4700 Sfmt 9990 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47058 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION are issued for two years and expire on affect their existing or future March 31 of odd-numbered years. employment as well as lost knowledge Federal Aviation Administration March 31, 2013, is the next expiration to the industry in general. Some date. commenters contended a shrinking 14 CFR Part 65 The definition of the term ‘‘actively population of IAs would result in engaged’’ has caused confusion among [Docket No. FAA–2010–1060] increased maintenance and inspection ASIs and aircraft maintenance costs. Incidentally, many of these Policy Clarifying Definition of ‘‘Actively personnel. The term is not defined in 14 commenters acknowledged they did not Engaged’’ for Purposes of Inspector CFR, and its definition in agency perform or supervise any maintenance Authorization guidance materials has varied over time. activities and previously renewed their In November 2010, the FAA published IA by attending training or through oral AGENCY: Federal Aviation a notice of proposed policy clarifying testing under § 65.93(a)(4)–(5). Administration (FAA), DOT. the definition of ‘‘actively engaged’’ for Similarly, several commenters ACTION: Notice of policy; disposition of the purposes of an IA.1 The notice expressed the belief that accomplishing comments. recognized the FAA’s prior inconsistent any of the activities in § 65.93(a)(1) application of the term and the public’s through (5) were sufficient for IA SUMMARY: This action clarifies the term misunderstanding of the regulatory renewal.3 ‘‘actively engaged’’ for the purposes of requirements contained under The FAA believes these comments application for and renewal of an § 65.91(c)(2). The notice proposed to result from a common inspection authorization. It also amend FAA Order 8900.1 Volume 5 misunderstanding of the IA renewal responds to the comments submitted to Chapter 5 to provide a clearer definition requirements under § 65.93. Section the proposed policy and revises of ‘‘actively engaged’’ within FAA 65.93 sets forth five activities, at least portions of that proposal. This action policy. The FAA reaffirmed one of which must be completed in the amends the Flight Standards longstanding policy that an applicant first year and at least one of which must Management System FAA Order 8900.1. who is employed full-time in be completed in the second year, to be DATES: This policy becomes effective inspecting, overhauling, repairing, eligible for renewal of an IA. However, September 6, 2011. preserving, or replacing parts on aircraft § 65.93(a) also states ‘‘an applicant must FOR FURTHER INFORMATION CONTACT: Ed consistently are considered actively present evidence * * * that the Hall, Aircraft Maintenance General engaged. For an applicant participating applicant still meets the requirements of Aviation Branch, AFS–350, Federal in (regardless of employment status) § 65.91(c)(1) through (4).’’ Accordingly, Aviation Administration, 800 maintenance activities part time or IA applicants must hold a current Independence Avenue, SW., occasionally, it proposed an ASI would mechanic’s certificate with both Washington, DC 20591; telephone: (804) use documentation or other evidence airframe and powerplant ratings that has 222–7494 ext. 240; e-mail: provided by the applicant detailing the been in effect for at least 3 years and [email protected]. maintenance activity to determine must have been actively engaged in whether the type of maintenance maintaining aircraft for 2 years prior to SUPPLEMENTARY INFORMATION: activity performed, considering any the application. Additionally, IA Background special expertise required, and the applicants must identify a fixed base of quantity of maintenance activity operation at which he or she may be Section 65.91(c) of Title 14 of the demonstrated the applicant was actively located in person or by phone during Code of Federal Regulations sets forth engaged. The notice also proposed a normal working hours. This may be a the eligibility requirements for obtaining limited carve-out, or relief, for ASIs residence or place of employment. An an inspection authorization (IA). Among holding an IA that are restricted in the IA applicant also must have available other requirements, an applicant must type of maintenance they can perform the equipment, facilities, and inspection ‘‘have been actively engaged, for at least due to ethical considerations. data necessary to properly inspect the two-year period before the date he The comment period closed on airframes, powerplants, propellers, or applies, in maintaining aircraft January 17, 2011, following an related parts or appliances. Technical certificated and maintained in extension of the comment period.2 The data includes type certificate data accordance with [FAA regulations].’’ FAA considered late-filed comments information, airworthiness directives, Section 65.93(a) sets forth the eligibility through February 4, 2011. As of that federal regulations, and availability of requirements for renewing an IA and date, more than 954 comments had been manufacturers’ service or maintenance incorporates the requirements for filed. information specific to the inspections obtaining one under § 65.91(c)(1)–(4). being performed. Equipment required to Accordingly, an individual must be Discussion of the Comments and Final properly inspect aircraft, powerplants, actively engaged, for at least the prior Policy propellers, or appliances includes but two-year period, in maintaining aircraft The majority of individual may not be limited to basic hand tools, to be eligible to either obtain or renew commenters believed the FAA was an IA. engaging in rulemaking rather than 3 Those activities are: (1) Performed at least one The FAA provides guidance clarifying an existing rule, and these annual inspection for each 90 days that the concerning the issuance of IAs in the applicant held the current authority; (2) performed commenters generally were opposed to at least two major repairs or major alterations for Flight Standards Information the proposed clarification. Many of each 90 days that the applicant held the current Management System (FSIMS), FAA these commenters expressed the belief authority; (3) performed or supervised and Order 8900.1, Volume 5, Chapter 5, approved at least one progressive inspection in the IA was a certificate or license, rather accordance with standards prescribed by the Sections 7 and 8. These sections assist than an FAA authorization. They Administrator; (4) attended and successfully aviation safety inspectors (ASIs) in contended the loss of their IA would completed a refresher course, acceptable to the evaluating an initial application for an result in a loss of knowledge that could Administrator, of not less than 8 hours of IA or an application for renewing an IA instruction; and (5) passed an oral test by an FAA inspector to determine that the applicant’s as well as allow a prospective applicant 1 75 FR 68249 (Nov. 5, 2010). knowledge of applicable regulations and standards to determine his or her eligibility. IAs 2 See 75 FR 75649 (Dec. 6, 2010). is current. § 65.93(a).

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47059

compression testers, magneto timing proposed policy, the FAA values the inconsistent with the definition of lights or disk, and devices applicable to substantive nature of experience rather actively engaged. One commenter determining control surface travels, than a strict quantity formula. contended an ASI should be required to cable tensions, or blade angles as The FAA has concluded that meet the hands-on experience required applicable during the performance of an requiring ASIs to evaluate evidence or of other applicants. inspection. Facilities should be documentation provided by the As stated in the proposed policy, FAA available to provide proper applicant will facilitate a consistent Order 8900.1 restricts the types of environmental protection of the aircraft, review because the ASI will have more maintenance that ASIs can perform powerplant, propeller, or appliance than the applicant’s self-certification to because of ethical concerns, and the being inspected. Consideration should make the determination. This FAA does not intend for ASIs to be be given to any adverse effects by wind, documentation, when required, could prejudiced because of their employment rain, temperature, or other inhibiting include records showing performance or restrictions. The FAA does not intend to elements on the product being supervision of aircraft maintenance, change its policy regarding an ASI inspected. return to service documents, and copies holding an IA by virtue of the ASI 1825 The FAA disagrees with commenters’ of maintenance record entries. The FAA job description and resulting ASI contention that the IA is a certificate or expects documentation will establish an responsibilities. An ASI retains the rating. The FAA consistently has held applicant’s continued contributions to ability to maintain a personally-owned the IA is an authorization. The FAA also the aviation industry and ability to aircraft or aircraft owned by another ASI rejects the contention that employment demonstrate compliance with in meeting the actively engaged would be affected because employers 65.91(c)(1)–(4). definition. Additionally, an ASI’s job reasonably expect the FAA to ensure Many commenters, including several description requires continuous regulatory compliance and expect a associations, requested the definition of determinations of conformity to aircraft, person holding an IA has met all FAA actively engaged include supervision, engine, and propeller type certificates; requirements to hold that authorization. either technical or in an executive adherence to manufacturers’ Many commenters were concerned capacity, of maintenance or alteration of maintenance requirements or inspection ASIs would evaluate individuals aircraft because supervision meets the requirements; compliance with engaging in maintenance activities part recency of experience requirements for Airworthiness Directives; and the actual time or occasionally in a subjective or an airframe and powerplant (A & P) issue of recurrent and original inconsistent manner. These commenters certificate. Some commenters also airworthiness certificates. Further, an request further clarification of part-time requested actively engaged includes ASI accomplishes or oversees export or occasional engagement to promote full-time instruction under part 147 and certificate issuance requirements, consistency and standardization. A employment directly related to oversees maintenance record entries for commenter suggests any clarification airworthiness (such as, technical stated special airworthiness certificate specifically address individuals engaged representative, maintenance sales, issuance, oversees determinations of in personal aircraft maintenance, retired maintenance coordinator, and major repair/alteration requirements on mechanics providing occasional or relief maintenance auditor). FAA form 337, and oversees the maintenance, individuals providing The FAA agrees that supervision of determination of appropriate maintenance in rural areas, and maintenance activities provides the maintenance record entries. These job individuals offering specialized same sort of experience the actively functions parallel the supervision in a expertise in electrical, composites, and engaged requirement was intended to technical or executive capacity and rare or vintage aircraft. require. For that reason, the FAA will therefore these activities could be The FAA recognizes and values include technical supervision and considered when determining whether individuals with experience in wood supervision in an executive capacity on the ASI has been actively engaged. After structures, steel tubing, fabric coverings, either a full-time, part-time, or considering the comments, the FAA radial engines, ground adjustable occasional basis in the definition of does not adopt an ASI carve-out because propellers, aging aircraft, and the fatigue actively engaged. The FAA previously it anticipates ASIs would be able to inspection issues associated with these determined involvement solely in an demonstrate they are actively engaged aircraft. The FAA also values the academic environment is not actively under the policy as would any applicant experience of individuals who are engaged. However, a technical supervising maintenance in a technical available on a part-time or occasional instructor or part 147 school instructor or executive capacity. basis to inspect vintage or rare aircraft may maintain aircraft or supervise the Several commenters, including or aircraft that may be located in rural maintenance of aircraft in addition to associations, expressed concern that areas of the country not serviced by an instruction, in which case the instructor FAA Order 8900.1 lacked a specific abundance of IAs. The FAA does not could be considered actively engaged. appeal process for applicants denied the intend to eliminate eligibility or renewal Individuals employed as a initial or renewal IA because of an ASI’s opportunities of these individuals. manufacturer’s technical representative, determination that the applicant was Accordingly, the FAA has adopted a maintenance coordinator, or not actively engaged. broad definition of ‘‘actively engaged’’ maintenance auditor also could be Because the issuance or renewal of an to include not only part-time considered actively engaged depending IA is not a certificate action, the FAA employment but also occasional on the activity demonstrated. Without a does not have a formal appeal process. activity, which does not require better understanding of duties involved, However, an action on an IA application employment and can occur on an it is unclear whether an individual could be addressed through the infrequent basis. The FAA believes it involved in maintenance sales could Aviation Safety Consistency and problematic to list every situation that demonstrate inspecting, overhauling, Standardization Initiative (CSI), which could be considered actively engaged, repairing, preserving, or replacing parts requires review of a questioned or and that approach may exclude on an aircraft, or supervising those disputed action at every level of the situations that an ASI would determine activities. AVS management chain. meets the regulatory requirements. Several commenters contended the One commenter contended there Additionally, as indicated in the carve-out for ASIs renewing an IA was should be no actively engaged

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47060 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

requirement for an initial or renewal IA. instruction equipment maintained in DEPARTMENT OF TRANSPORTATION Another commenter suggested the accordance with 14 CFR standards, can be period of active engagement should be considered actively engaged. Federal Aviation Administration extended from two to four years. These comments are beyond the scope B. There must be a fixed base of 14 CFR Part 71 of the policy clarification because they operation at which the applicant can be located in person or by telephone. This [Docket No. FAA–2011–0012; Airspace would require rulemaking. Docket No. 10–ASO–44] Nevertheless, the FAA views the base need not be the place where the actively engaged requirement as applicant will exercise the inspection Amendment of Class D and Class E providing maintenance experience authority. Airspace; Columbus Lawson AAF, GA relevant to conducting inspections. C. The applicant must have available AGENCY: Federal Aviation Similarly, the two-year period provides the equipment, facilities, and inspection Administration (FAA), DOT. the recency of experience in data necessary to conduct proper maintenance performance or inspection of airframes, powerplants, ACTION: Final rule. supervision necessary to conduct propellers, or any related part or SUMMARY: This action modifies Class D inspections. appliance. This data must be current. The FAA has determined to make this and Class E airspace at Lawson Army policy effective for the next renewal D. The applicant must pass the IA Airfield (AAF), Columbus, GA, by cycle in March 2013 to allow IAs and knowledge test, testing the ability to removing the reference to the Columbus ASIs adequate time to participate in the inspect according to safety standards for Metropolitan Airport Class C airspace required activity. The FAA will update approval for return to service of an area from the description. Controlled FAA Order 8900.1 accordingly. aircraft, related part, or appliance after airspace at Columbus Metropolitan major repairs or major alterations, and Airport is being downgraded due to Amendment annual or progressive inspections decreased air traffic volume. This action In consideration of the foregoing, the performed under part 43. There is no is necessary for the safety and Federal Aviation Administration will practical test required for an IA. management of air traffic within the revise FAA Order 8900.1, Volume 5, National Airspace System. This action Chapter 5 as follows: Note: The ASI should see paragraph 5– also updates the geographic coordinates 1. Amend Section 7, Paragraph 5– 1285 for instructions on determining an of Columbus Lawson AAF. applicant’s eligibility. 1279 by adding a Note after DATES: Effective 0901 UTC, October 20, subparagraph A to read: 5–1279 2. Amend Section 8, Paragraph 5– 2011. The Director of the Federal ELIGIBILITY. The ASI must establish 1309 by adding a Note after Register approves this incorporation by the applicant’s eligibility before subparagraph (A)(1) to read: reference action under title 1, Code of allowing the applicant to test. None of Federal Regulations, part 51, subject to the requirements of Title 14 of the Code 5–1309 RENEWAL OF INSPECTION the annual revision of FAA Order of Federal Regulations (14 CFR) part 65, AUTHORIZATION. 7400.9 and publication of conforming § 65.91 can be waived by the ASI. A. Application Requirements. amendments. A. The applicant must hold a current Application for renewal may be FOR FURTHER INFORMATION CONTACT: John mechanic’s certificate, with both required to comply with the following: airframe and powerplant ratings, that Fornito, Operations Support Group, has been in effect for at least 3 years. (1) Show evidence the applicant still Eastern Service Center, Federal Aviation The applicant must have been actively meets the requirements of § 65.91(c)(1) Administration, P.O. Box 20636, engaged in maintaining certificated through (4). Atlanta, Georgia 30320; telephone (404) 305–6364. aircraft for at least the 2-year period Note: Refer to Paragraph 5–1279(A)–(C) of before applying. this document for information on meeting SUPPLEMENTARY INFORMATION: Note: Actively engaged means an active § 65.91(c)(1) through (4) requirements. History role in exercising the privileges of an Refresher training attendance alone does not airframe and powerplant mechanic certificate satisfy those requirements. On May 24, 2011, the FAA published in the maintenance of civil aircraft. in the Federal Register a notice of Applicants who inspect, overhaul, repair, (2) Complete Federal Aviation proposed rulemaking (NPRM) to modify preserve, or replace parts on aircraft, or who Administration (FAA) Form 8610–1, Class D and E airspace at Lawson Army supervise (i.e., direct and inspect) those Mechanic’s Application for Inspection Airfield (AAF), Columbus, GA by activities, are actively engaged. The ASI may Authorization, in duplicate. removing the reference to the Columbus use evidence or documentation provided by Metropolitan Airport Class C airspace (3) Show evidence the applicant the applicant showing inspection, area from the description, and overhauling, repairing, preserving, or meets the requirements of § 65.93(a) for modifying the geographic coordinates of replacing parts on aircraft or supervision of both the first and second year in the those activities. This evidence or Lawson AAF (76 FR 30045) Docket No. form of an activity sheet or log, training FAA–2011–0012. Interested parties documentation when required could include certificates, and/or oral test results, as employment records showing performance or were invited to participate in this supervision of aircraft maintenance, return to applicable. rulemaking effort by submitting written service documents and or copies of Issued in Washington, DC, on July 28, comments on the proposal to the FAA. maintenance record entries. 2011. No comments were received. Class D Technical instructors or individuals John S. Duncan, and E airspace designations are instructing in a FAA part 147 approved AMT published in paragraph 5000 and 6002, school, who also engage in the maintenance Acting Director, Flight Standards Service. respectively, of FAA Order 7400.9U of aircraft certificated and maintained in [FR Doc. 2011–19741 Filed 8–3–11; 8:45 am] accordance with 14 CFR, can be considered dated August 18, 2010, and effective BILLING CODE 4910–13–P actively engaged. Individuals instructing in a September 15, 2010, which is FAA part 147 AMT school, who also engage incorporated by reference in 14 CFR in the maintenance of aircraft-related 71.1. The Class D and E airspace

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47061

designations listed in this document Adoption of the Amendment DEPARTMENT OF TRANSPORTATION will be published subsequently in the Order. In consideration of the foregoing, the Federal Aviation Administration Federal Aviation Administration The Rule amends 14 CFR part 71 as follows: 14 CFR Part 71 This amendment to Title 14, Code of PART 71—DESIGNATION OF CLASS A, [Docket No. FAA–2011–0005; Airspace Federal Regulations (14 CFR) part 71 Docket No. 10–ASO–42] amends the Class D airspace and Class B, C, D AND E AIRSPACE AREAS; AIR E airspace designated as surface area at TRAFFIC SERVICE ROUTES; AND Amendment of Class E Airspace; Columbus Lawson AAF, Columbus, GA REPORTING POINTS Lakeland, FL by removing the reference to the Columbus Metropolitan Airport Class C ■ 1. The authority citation for part 71 AGENCY: Federal Aviation airspace from the description. The continues to read as follows: Administration (FAA), DOT. ACTION: Final rule. volume of air traffic has decreased at Authority: 49 U.S.C. 106(g); 40103, 40113, Columbus Metropolitan Airport, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– SUMMARY: This action amends Class E therefore, Class C airspace has been 1963 Comp., p. 389. removed. The geographic coordinates airspace at Lakeland, FL. The Plant City Non-Directional Beacon (NDB) has been for the Lawson AAF are being adjusted § 71.1 [Amended] to coincide with the FAAs aeronautical decommissioned and new Standard database. This action is necessary for ■ 2. The incorporation by reference in Instrument Approach Procedures have the safety and management of IFR 14 CFR 71.1 of Federal Aviation been developed for Lakeland Linder operations at the airports. Administration Order 7400.9U, Regional Airport. This action also updates the geographic coordinates of The FAA has determined that this Airspace Designations and Reporting the airport, as well as Plant City regulation only involves an established Points, dated August 18, 2010, effective Municipal Airport and Winter Haven’s body of technical regulations for which September 15, 2010, is amended as Gilbert Airport. This action enhances frequent and routine amendments are follows: the safety and airspace management of necessary to keep them operationally Paragraph 5000 Class D Airspace Instrument Flight Rules (IFR) operations current, is non-controversial and at the airport. unlikely to result in adverse or negative * * * * * DATES: Effective 0901 UTC, October 20, comments. It, therefore, (1) Is not a ASO GA D Columbus Lawson AAF, GA ‘‘significant regulatory action’’ under [Amended] 2011. The Director of the Federal Executive Order 12866; (2) is not a Register approves this incorporation by Columbus Lawson AAF, GA reference action under title 1, Code of ‘‘significant rule’’ under DOT (Lat. 32°19′55″ N., long 84°59′14″ W.) Regulatory Policies and Procedures (44 Federal Regulations, part 51, subject to That airspace extending upward from the FR 11034; February 26, 1979); and (3) the annual revision of FAA Order surface to and including 2,700 feet MSL does not warrant preparation of a 7400.9 and publication of conforming within a 5.2-mile radius of Lawson Army Regulatory Evaluation as the anticipated amendments Airfield. This Class D airspace area is impact is so minimal. Since this is a effective during the specific dates and times FOR FURTHER INFORMATION CONTACT: John routine matter that will only affect air established in advance by a Notice to Fornito, Operations Support Group, traffic procedures and air navigation, it Airmen. The effective date and time will Eastern Service Center, Federal Aviation is certified that this rule, when thereafter be continuously published in the Administration, P.O. Box 20636, promulgated, will not have a significant Airport/Facility Directory. Atlanta, Georgia 30320; telephone (404) economic impact on a substantial 305–6364. Paragraph 6002 Class E Airspace number of small entities under the SUPPLEMENTARY INFORMATION: criteria of the Regulatory Flexibility Act. Designated as Surface Areas The FAA’s authority to issue rules * * * * * History regarding aviation safety is found in ASO GA E2 Columbus Lawson AAF, GA On May 24, 2011, the FAA published Title 49 of the United States Code. [Amended] in the Federal Register a notice of Subtitle I, section 106 describes the proposed rulemaking (NPRM) to amend authority of the FAA Administrator. Columbus Lawson AAF, GA ° ′ ″ ° ′ ″ Class E airspace at Lakeland Linder Subtitle VII, Aviation Programs, (Lat. 32 19 55 N., long. 84 59 14 W.) Regional Airport, Lakeland, FL (75 FR describes in more detail the scope of the Within a 5.2-mile radius of Lawson Army 30047) Docket No. FAA–2011–0005. agency’s authority. Airfield. This Class E airspace area is Interested parties were invited to This rulemaking is promulgated effective during the specific dates and times participate in this rulemaking effort by under the authority described in subtitle established in advance by a Notice to submitting written comments on the VII, part A, subpart I, section 40103. Airmen. The effective date and time will proposal to the FAA. No comments Under that section, the FAA is charged thereafter be continuously published in the were received. Subsequent to with prescribing regulations to assign Airport/Facility Directory. publication, the FAA found that the the use of airspace necessary to ensure Issued in College Park, Georgia, on July 19, geographic coordinates of Lake Linder the safety of aircraft and the efficient 2011. Regional Airport, Plant City Municipal use of airspace. This regulation is Mark D. Ward, Airport, and Winter Haven’s Gilbert within the scope of that authority as it Manager, Operations Support Group, Eastern Airport needed to be adjusted. This amends controlled airspace at Columbus Service Center, Air Traffic Organization. action makes these updates. Except for editorial changes, and the changes noted Lawson AAF, Columbus, GA. [FR Doc. 2011–19170 Filed 8–3–11; 8:45 am] above, this rule is the same as published Lists of Subjects in 14 CFR Part 71 BILLING CODE 4910–13–P in the NPRM. Airspace, Incorporation by reference, Class E airspace designations are Navigation (air). published in Paragraph 6005 of FAA

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47062 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

Order 7400.9U dated August 18, 2010, Lists of Subjects in 14 CFR Part 71 ENVIRONMENTAL PROTECTION and effective September 15, 2010, which AGENCY is incorporated by reference in 14 CFR Airspace, Incorporation by reference, 71.1. The Class E airspace designations Navigation (air). 40 CFR Part 52 listed in this document will be Adoption of the Amendment published subsequently in the Order. [EPA–R03–OAR–2010–0157; FRL–9447–6] In consideration of the foregoing, the The Rule Federal Aviation Administration Approval and Promulgation of Air This amendment to Title 14, Code of amends 14 CFR part 71 as follows: Quality Implementation Plans; West Federal Regulations (14 CFR) part 71 Virginia; Section 110(a)(2) amends Class E surface airspace to PART 71—DESIGNATION OF CLASS A, Infrastructure Requirements for the support new standard instrument B, C, D AND E AIRSPACE AREAS; AIR 1997 8-Hour Ozone and the 1997 and approach procedures developed at TRAFFIC SERVICE ROUTES; AND 2006 Fine Particulate Matter National Lakeland Linder Regional Airport, REPORTING POINTS Ambient Air Quality Standards Lakeland, FL. Airspace reconfiguration AGENCY: Environmental Protection is necessary due to the ■ 1. The authority citation for part 71 Agency (EPA). decommissioning of the Plant City NDB continues to read as follows: and cancellation of the NDB approach, ACTION: Final rule. Authority: 49 U.S.C. 106(g); 40103, 40113, and for continued safety and 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– SUMMARY: management of IFR operations at the EPA is approving submittals 1963 Comp., p. 389. airport. This action also updates the from the State of West Virginia pursuant to the Clean Air Act (CAA) sections geographic coordinates of Lake Linder § 71.1 [Amended] Regional, Plant City Municipal, and 110(k)(2) and (3). These submittals Winter Haven’s Gilbert Airports to ■ 2. The incorporation by reference in address the infrastructure elements coincide with the FAA’s aeronautical 14 CFR 71.1 of Federal Aviation specified in the CAA section 110(a)(2), database. Administration Order 7400.9U, necessary to implement, maintain, and enforce the 1997 8-hour ozone and fine The FAA has determined that this Airspace Designations and Reporting particulate matter (PM ) national regulation only involves an established Points, dated August 18, 2010, effective 2.5 ambient air quality standards (NAAQS) body of technical regulations for which September 15, 2010, is amended as and the 2006 PM NAAQS. This final frequent and routine amendments are follows: 2.5 rule is limited to the following necessary to keep them operationally infrastructure elements which were current, is non-controversial and Paragraph 6005 Class E Airspace Areas subject to EPA’s completeness findings unlikely to result in adverse or negative Extending Upward From 700 Feet or More Above the Surface of the Earth. pursuant to CAA section 110(k)(1) for comments. It, therefore, (1) Is not a the 1997 8-hour ozone NAAQS dated ‘‘significant regulatory action’’ under * * * * * March 27, 2008 and the 1997 PM Executive Order 12866; (2) is not a 2.5 ASO FL E5 Lakeland, FL [Amended] NAAQS dated October 22, 2008: ‘‘significant rule’’ under DOT Lakeland Linder Regional Airport, FL 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), Regulatory Policies and Procedures (44 (Lat. 27°59′20″ N., long. 82°01′07″ W.) (H), (J), (K), (L), and (M), or portions FR 11034; February 26, 1979); and (3) Bartow Municipal Airport thereof. does not warrant preparation of a (Lat. 27°56′36″ N., long. 81°47′00″ W.) DATES: Effective Date: This final rule is Regulatory Evaluation as the anticipated Plant City Municipal Airport effective on September 6, 2011. impact is so minimal. Since this is a (Lat. 28°00′01″ N., long. 82°09′48″ W. routine matter that will only affect air Winter Haven’s Gilbert Airport ADDRESSES: EPA has established a traffic procedures and air navigation, it (Lat. 28°03′47″ N., long. 81°45′12″ W.) docket for this action under Docket ID is certified that this rule, when Lakeland VORTAC Number EPA–R03–OAR–2010–0157. All promulgated, will not have a significant (Lat. 27°59′10″ N., long. 82°00′50″ W.) documents in the docket are listed in economic impact on a substantial That airspace extending upward from 700 the http://www.regulations.gov Web number of small entities under the feet above the surface within a 7-mile radius site. Although listed in the electronic criteria of the Regulatory Flexibility Act. of Lakeland Linder Regional Airport, and docket, some information is not publicly The FAA’s authority to issue rules within a 6.7-mile radius of Bartow Municipal available, i.e., confidential business regarding aviation safety is found in Airport, and within a 6.6-mile radius of Plant information (CBI) or other information Title 49 of the United States Code. City Municipal Airport, and within 3.5 miles whose disclosure is restricted by statute. Subtitle I, Section 106 describes the each side of the 266° bearing from the Plant Certain other material, such as authority of the FAA Administrator. City Airport extending from the 6.6-mile copyrighted material, is not placed on Subtitle VII, Aviation Programs, radius to 7.5 miles west of the airport, and the Internet and will be publicly describes in more detail the scope of the within a 6.5-mile radius of Winter Haven’s available only in hard copy form. agency’s authority. Gilbert Airport, and within 2.5 miles each Publicly available docket materials are This rulemaking is promulgated side of the Lakeland VORTAC 071° radial, available either electronically through under the authority described in subtitle extending from the 7-mile radius to Winter http://www.regulations.gov or in hard VII, part A, subpart I, section 40103. Haven’s Gilbert Airport 6.5-mile radius. copy for public inspection during Under that section, the FAA is charged normal business hours at the Air Issued in College Park, Georgia, on July 19, with prescribing regulations to assign Protection Division, U.S. Environmental 2011. the use of airspace necessary to ensure Protection Agency, Region III, 1650 the safety of aircraft and the efficient Mark D. Ward, Arch Street, Philadelphia, Pennsylvania use of airspace. This regulation is Manager, Operations Support Group, Eastern 19103. Copies of the State submittal are within the scope of that authority as it Service Center, Air Traffic Organization. available at the West Virginia amends Class E airspace at Lakeland, [FR Doc. 2011–19166 Filed 8–3–11; 8:45 am] Department of Environmental FL. BILLING CODE 4910–13–P Protection, Division of Air Quality, 601

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47063

57th Street SE, Charleston, West emissions during periods of start-up, as explicit or implicit reapproval of any Virginia 25304. shutdown, or malfunction (SSM) at existing provisions that relate to these FOR FURTHER INFORMATION CONTACT: sources, that may be contrary to the four substantive issues. Irene Shandruk, (215) 814–2166, or by CAA and EPA’s policies addressing Unfortunately, the commenters and e-mail at [email protected]. such excess emissions; and (ii) existing others evidently interpreted these SUPPLEMENTARY INFORMATION: provisions related to ‘‘director’s statements to mean that EPA considered Throughout this document, whenever variance’’ or ‘‘director’s discretion’’ that action upon the SSM provisions and the ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean purport to permit revisions to SIP other three substantive issues to be EPA. approved emissions limits with limited integral parts of acting on an public process or without requiring infrastructure SIP submission, and I. Background further approval by EPA, that may be therefore that EPA was merely On May 17, 2010 (75 FR 27510), EPA contrary to the CAA. EPA notes that postponing taking final action on the published a notice of proposed there are two other substantive issues issue in the context of the infrastructure rulemaking (NPR) for the State of West for which EPA likewise stated in other SIPs. This was not EPA’s intention. To Virginia. The NPR proposed approval of proposals that it would address the the contrary, EPA only meant to convey West Virginia’s submittals that provide issues separately: (i) Existing provisions its awareness of the potential for certain the basic program elements specified in for minor source new source review types of deficiencies in existing SIPs the CAA section 110(a)(2)(A), (B), (C), programs that may be inconsistent with and to prevent any misunderstanding (D)(ii), (E), (F), (G), (H), (J), (K), (L), and the requirements of the CAA and EPA’s that it was reapproving any such (M), or portions thereof, necessary to regulations that pertain to such existing provisions. EPA’s intention was implement, maintain, and enforce the programs (‘‘minor source NSR’’) and (ii) to convey its position that the statute 1997 8-hour ozone and PM2.5 NAAQS existing provisions for Prevention of does not require that infrastructure SIPs and the 2006 PM2.5 NAAQS. The formal Significant Deterioration programs that address these specific substantive issues submittals by the State of West Virginia may be inconsistent with current in existing SIPs and that these issues on December 3, 2007, May 21, 2008, and requirements of EPA’s ‘‘Final NSR may be dealt with separately, outside October 1, 2009 addressed the section Improvement Rule,’’ (67 FR 80186, the context of acting on the 110(a)(2) requirements for the 1997 8- December 31, 2002), as amended by the infrastructure SIP submission of a state. hour ozone NAAQS; the submittals NSR Reform Rule (72 FR 32526, June 13, To be clear, EPA did not mean to imply dated April 3, 2008, May 21, 2008, 2007) (NSR Reform). In light of the that it was not taking a full final agency October 1, 2009, and March 18, 2010 comments, EPA now believes that its action on the infrastructure SIP addressed the section 110(a)(2) statements in various proposed actions submission with respect to any requirements for the 1997 PM2.5 on infrastructure SIPs with respect to substantive issue that EPA considers to NAAQS; and the submittals dated these four individual issues should be be a required part of acting on such October 1, 2009 and March 18, 2010 explained in greater depth. submissions under section 110(k) or under section 110(c). Given the addressed the section 110(a)(2) EPA intended the statements in the requirements for the 2006 PM confusion evidently resulting from 2.5 other proposals concerning these four NAAQS. EPA’s statements in those proposals, issues merely to be informational and to however, we want to explain more fully II. Scope of Action on Infrastructure provide general notice of the potential EPA’s reasons for concluding that these Submissions existence of provisions within the four potential substantive issues in EPA is currently acting upon State existing SIPs of some states that might existing SIPs may be addressed Implementation Plans (SIPs) that require future corrective action. EPA did separately. address the infrastructure requirements not want states, regulated entities, or The requirement for the SIP of CAA section 110(a)(1) and (2) for the members of the public to be under the submissions at issue arises out of CAA ozone and PM2.5 NAAQS for various misconception that EPA’s approval of section 110(a)(1). That provision states across the country. Commenters the infrastructure SIP submission of a requires that states must make a SIP on EPA’s recent proposals for some given state should be interpreted as a submission ‘‘within 3 years (or such states raised concerns about EPA reapproval of certain types of provisions shorter period as the Administrator may statements that it was not addressing that might exist buried in the larger prescribe) after the promulgation of a certain substantive issues in the context existing SIP for such state. Thus, for national primary ambient air quality of acting on those infrastructure SIP example, EPA explicitly noted that we standard (or any revision thereof)’’ and submissions.1 Those commenters believe that some states may have that these SIPs are to provide for the specifically raised concerns involving existing SIP approved SSM provisions ‘‘implementation, maintenance, and provisions in existing SIPs and with that are contrary to the CAA and EPA enforcement’’ of such NAAQS. Section EPA’s statements in other proposals that policy, but that ‘‘in this rulemaking, 110(a)(2) includes a list of specific it would address two issues separately EPA is not proposing to approve or elements that ‘‘[e]ach such plan’’ and not as part of actions on the disapprove any existing State provisions submission must meet. EPA has infrastructure SIP submissions: (i) with regard to excess emissions during historically referred to these particular Existing provisions related to excess SSM of operations at facilities.’’ EPA submissions that states must make after further explained, for informational the promulgation of a new or revised 1 See, Comments of Midwest Environmental purposes, that ‘‘EPA plans to address NAAQS as ‘‘infrastructure SIPs.’’ This Defense Center, dated May 31, 2011. Docket # EPA– such State regulations in the future.’’ specific term does not appear in the R05–OAR–2007–1179 (adverse comments on EPA made similar statements, for statute, but EPA uses the term to proposals for three states in Region 5). EPA notes that these public comments on another proposal are similar reasons, with respect to the distinguish this particular type of SIP not relevant to this rulemaking and do not have to director’s discretion, minor source NSR, submission designed to address basic be directly addressed in this rulemaking. EPA will and NSR Reform issues. EPA’s objective structural requirements of a SIP from respond to these comments in the appropriate was to make clear that approval of an other types of SIP submissions designed rulemaking action to which they apply. EPA did receive specific adverse comments in this action infrastructure SIP for these ozone and to address other different requirements, that are discussed in more detail in section IV. PM2.5 NAAQS should not be construed such as ‘‘nonattainment SIP’’

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47064 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

submissions required to address the illustrates that EPA must determine would not need to meet the portion of nonattainment planning requirements of which provisions of section 110(a)(2) section 110(a)(2)(C) that pertains to part part D, ‘‘regional haze SIP’’ submissions may be applicable for a given C, i.e., the PSD requirements applicable required to address the visibility infrastructure SIP submission. in attainment areas. Nonattainment SIPs protection requirements of CAA section Similarly, EPA has previously decided required by part D also would not need 169A, new source review permitting that it could take action on different to address the requirements of section program submissions required to parts of the larger, general 110(a)(2)(G) with respect to emergency address the requirements of part D, and ‘‘infrastructure SIP’’ for a given NAAQS episodes, as such requirements would a host of other specific types of SIP without concurrent action on all not be limited to nonattainment areas. submissions that address other specific subsections, such as section As this example illustrates, each type of matters. 110(a)(2)(D)(i), because EPA bifurcated SIP submission may implicate some Although section 110(a)(1) addresses the action on these latter ‘‘interstate subsections of section 110(a)(2) and not the timing and general requirements for transport’’ provisions within section others. these infrastructure SIPs and section 110(a)(2) and worked with states to Given the potential for ambiguity of 110(a)(2) provides more details address each of the four prongs of the statutory language of section concerning the required contents of section 110(a)(2)(D)(i) with substantive 110(a)(1) and (2), EPA believes that it is these infrastructure SIPs, EPA believes administrative actions proceeding on appropriate for EPA to interpret that that many of the specific statutory different tracks with different language in the context of acting on the provisions are facially ambiguous. In schedules.5 This illustrates that EPA infrastructure SIPs for a given NAAQS. particular, the list of required elements may conclude that subdividing the Because of the inherent ambiguity of the provided in section 110(a)(2) contains a applicable requirements of section list of requirements in section 110(a)(2), wide variety of disparate provisions, 110(a)(2) into separate SIP actions may EPA has adopted an approach in which some of which pertain to required legal sometimes be appropriate for a given it reviews infrastructure SIPs against authority, some of which pertain to NAAQS where a specific substantive this list of elements ‘‘as applicable.’’ In required substantive provisions, and action is necessitated, beyond a mere other words, EPA assumes that Congress some of which pertain to requirements submission addressing basic structural could not have intended that each and for both authority and substantive aspects of the state’s SIP. Finally, EPA every SIP submission, regardless of the provisions.2 Some of the elements of notes that not every element of section purpose of the submission or the section 110(a)(2) are relatively 110(a)(2) would be relevant, or as NAAQS in question, would meet each straightforward, but others clearly relevant, or relevant in the same way, require interpretation by EPA through of the requirements, or meet each of for each new or revised NAAQS and the them in the same way. EPA elected to rulemaking, or recommendations attendant infrastructure SIP submission through guidance, in order to give use guidance to make recommendations for that NAAQS. For example, the for infrastructure SIPs for these NAAQS. specific meaning for a particular monitoring requirements that might be 3 On October 2, 2007, EPA issued NAAQS. necessary for purposes of section Notwithstanding that section 110(a)(2) guidance making recommendations for 110(a)(2)(B) for one NAAQS could be states that ‘‘each’’ SIP submission must the infrastructure SIP submissions for very different than what might be meet the list of requirements therein, both the 1997 8-hour ozone NAAQS and necessary for a different pollutant. Thus, 7 EPA has long noted that this literal the 1997 PM2.5 NAAQS. Within this the content of an infrastructure SIP reading of the statute is internally guidance document, EPA described the submission to meet this element from a inconsistent, insofar as section duty of states to make these submissions state might be very different for an 110(a)(2)(I) pertains to nonattainment to meet what EPA characterized as the entirely new NAAQS, versus a minor SIP requirements that could not be met ‘‘infrastructure’’ elements for SIPs, revision to an existing NAAQS.6 on the schedule provided for these SIP which it further described as the ‘‘basic Similarly, EPA notes that other types submissions in section 110(a)(1).4 This SIP requirements, including emissions of SIP submissions required under the inventories, monitoring, and modeling statute also must meet the requirements 2 For example, section 110(a)(2)(E) provides that to assure attainment and maintenance of states must provide assurances that they have of section 110(a)(2), and this also the standards.’’ 8 As further adequate legal authority under state and local law demonstrates the need to identify the to carry out the SIP; section 110(a)(2)(C) provides identification of these basic structural applicable elements for other SIP SIP requirements, ‘‘attachment A’’ to the that states must have a substantive program to submissions. For example, address certain sources as required by part C of the guidance document included a short CAA; section 110(a)(2)(G) provides that states must nonattainment SIPs required by part D description of the various elements of have both legal authority to address emergencies likewise have to meet the relevant and substantive contingency plans in the event of section 110(a)(2) and additional subsections of section 110(a)(2) such as information about the types of issues such an emergency. section 110(a)(2)(A) or (E). By contrast, 3 For example, section 110(a)(2)(D)(i) requires that EPA considered germane in the EPA to be sure that each state’s SIP contains it is clear that nonattainment SIPs context of such infrastructure SIPs. EPA adequate provisions to prevent significant emphasized that the description of the contribution to nonattainment of the NAAQS in 5 EPA issued separate guidance to states with other states. This provision contains numerous respect to SIP submissions to meet section basic requirements listed on attachment terms that require substantial rulemaking by EPA in 110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5 A was not intended ‘‘to constitute an order to determine such basic points as what NAAQS. See, ‘‘Guidance for State Implementation interpretation of’’ the requirements and constitutes significant contribution. See, e.g., ‘‘Rule Plan (SIP) Submissions to Meet Current was merely a ‘‘brief description of the To Reduce Interstate Transport of Fine Particulate Outstanding Obligations Under Section Matter and Ozone (Clean Air Interstate Rule); 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 Revisions to Acid Rain Program; Revisions to the National Ambient Air Quality Standards,’’ from 7 See, ‘‘Guidance on SIP Elements Required NOX SIP Call; Final Rule,’’ (70 FR 25162, May 12, William T. Harnett, Director Air Quality Policy Under Section 110(a)(1) and (2) for the 1997 8-hour 2005) (defining, among other things, the phrase Division OAQPS, to Regional Air Division Director, Ozone and PM2.5 National Ambient Air Quality ‘‘contribute significantly to nonattainment’’). Regions I–X, dated August 15, 2006. Standards,’’ from William T. Harnett, Director Air 4 6 See, e.g., Id., (70 FR 25162, at 63–65, May 12, For example, implementation of the 1997 PM2.5 Quality Policy Division, to Air Division Directors, 2005) (explaining relationship between timing NAAQS required the deployment of a system of Regions I–X, dated October 2, 2007 (the ‘‘2007 requirement of section 110(a)(2)(D) versus section new monitors to measure ambient levels of that new Guidance’’). 110(a)(2)(I)). indicator species for the new NAAQS. 8 Id., at page 2.

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47065

required elements.’’ 9 EPA also stated its 110(a)(2)(C). In the 2007 Guidance, mechanisms to address specific belief that with one exception, these however, EPA did not indicate to states substantive deficiencies in existing SIPs. requirements were ‘‘relatively self that it intended to interpret these These other statutory tools allow EPA to explanatory, and past experience with provisions as requiring a substantive take appropriate tailored action, SIPs for other NAAQS should enable submission to address these specific depending upon the nature and severity states to meet these requirements with issues in the context of the of the alleged SIP deficiency. Section assistance from EPA Regions.’’ 10 For the infrastructure SIPs for these NAAQS. 110(k)(5) authorizes EPA to issue a ‘‘SIP one exception to that general Instead, EPA’s 2007 Guidance merely call’’ whenever EPA determines that a assumption, however, i.e., how states indicated its belief that the states should state’s SIP is substantially inadequate to should proceed with respect to the make submissions in which they attain or maintain the NAAQS, to requirements of section 110(a)(2)(G) for established that they have the basic SIP mitigate interstate transport, or the 1997 PM2.5 NAAQS, EPA gave much structure necessary to implement, otherwise to comply with the CAA.12 more specific recommendations. But for maintain, and enforce the NAAQS. EPA Section 110(k)(6) authorizes EPA to other infrastructure SIP submittals, and believes that states can establish that correct errors in past actions, such as for certain elements of the submittals for they have the basic SIP structure, past approvals of SIP submissions.13 the 1997 PM2.5 NAAQS, EPA assumed notwithstanding that there may be Significantly, EPA’s determination that that each state would work with its potential deficiencies within the an action on the infrastructure SIP is not corresponding EPA regional office to existing SIP. Thus, EPA’s other the appropriate time and place to refine the scope of a state’s submittal proposals mentioned these issues not address all potential existing SIP based on an assessment of how the because EPA considers them issues that problems does not preclude EPA’s requirements of section 110(a)(2) should must be addressed in the context of an subsequent reliance on provisions in reasonably apply to the basic structure infrastructure SIP as required by section section 110(a)(2) as part of the basis for of the state’s SIP for the NAAQS in 110(a)(1) and (2), but rather because action at a later time. For example, question. EPA wanted to be clear that it considers although it may not be appropriate to On September 25, 2009, EPA issued these potential existing SIP problems as require a state to eliminate all existing guidance to make recommendations to separate from the pending infrastructure inappropriate director’s discretion states with respect to the infrastructure SIP actions. provisions in the course of acting on the 11 SIPs for the 2006 PM2.5 NAAQS. In the EPA believes that this approach to the infrastructure SIP, EPA believes that 2009 Guidance, EPA addressed a infrastructure SIP requirement is section 110(a)(2)(A) may be among the number of additional issues that were reasonable, because it would not be statutory bases that EPA cites in the not germane to the infrastructure SIPs feasible to read section 110(a)(1) and (2) course of addressing the issue in a for the 1997 8-hour ozone and 1997 to require a top to bottom, stem to stern, subsequent action.14 PM2.5 NAAQS, but were germane to review of each and every provision of an EPA’s proposed approval of the these SIP submissions for the 2006 existing SIP merely for purposes of infrastructure SIP submissions from PM2.5 NAAQS, e.g., the requirements of assuring that the state in question has West Virginia predated the actions on section 110(a)(2)(D)(i) that EPA had the basic structural elements for a the submissions of other states and thus bifurcated from the other infrastructure functioning SIP for a new or revised occurred before EPA decided to provide elements for those specific 1997 ozone NAAQS. Because SIPs have grown by the informational statements concerning and PM2.5 NAAQS. accretion over the decades as statutory the SSM, director’s discretion, minor Significantly, neither the 2007 and regulatory requirements under the source NSR, and NSR Reform issues as Guidance nor the 2009 Guidance CAA have evolved, they may include specific substantive issues that EPA was explicitly referred to the SSM, director’s some outmoded provisions and not addressing in this context. However, discretion, minor source NSR, or NSR historical artifacts that, while not fully EPA determined that these four issues Reform issues as among specific up to date, nevertheless may not pose a substantive issues EPA expected states significant problem for the purposes of 12 EPA has recently issued a SIP call to rectify a to address in the context of the ‘‘implementation, maintenance, and specific SIP deficiency related to the SSM issue. infrastructure SIPs, nor did EPA give enforcement’’ of a new or revised See, ‘‘Finding of Substantial Inadequacy of any more specific recommendations NAAQS when EPA considers the overall Implementation Plan; Call for Utah State with respect to how states might address Implementation Plan Revision,’’ (74 FR 21639, effectiveness of the SIP. To the contrary, April 18, 2011). such issues even if they elected to do so. EPA believes that a better approach is 13 EPA has recently utilized this authority to The SSM and director’s discretion for EPA to determine which specific SIP correct errors in past actions on SIP submissions issues implicate section 110(a)(2)(A), elements from section 110(a)(2) are related to PSD programs. See, ‘‘Limitation of and the minor source NSR and NSR applicable to an infrastructure SIP for a Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas-Emitting Reform issues implicate section given NAAQS, and to focus attention on Sources in State Implementation Plans; Final Rule,’’ those elements that are most likely to (75 FR 82536, Dec. 30, 2010). EPA has previously 9 Id., at attachment A, page 1. need a specific SIP revision in light of used its authority under CAA 110(k)(6) to remove 10 Id., at page 4. In retrospect, the concerns raised the new or revised NAAQS. Thus, for numerous other SIP provisions that EPA by commenters with respect to EPA’s approach to determined it had approved in error. See, e.g., (61 some substantive issues indicates that the statute is example, EPA’s 2007 Guidance FR 38664, July 25, 1996) and (62 FR 34641, June not so ‘‘self explanatory,’’ and indeed is sufficiently specifically directed states to focus on 27, 1997) (corrections to American Samoa, Arizona, ambiguous that EPA needs to interpret it in order the requirements of section 110(a)(2)(G) California, Hawaii, and Nevada SIPs); (69 FR 67062, November 16, 2004) (corrections to California SIP); to explain why these substantive issues do not need for the 1997 PM2.5 NAAQS because of to be addressed in the context of infrastructure SIPs and (74 FR 57051, November 3, 2009) (corrections and may be addressed at other times and by other the absence of underlying EPA to Arizona and Nevada SIPs). means. regulations for emergency episodes for 14 EPA has recently disapproved a SIP submission 11 See, ‘‘Guidance on SIP Elements Required this NAAQS and an anticipated absence from Colorado on the grounds that it would have Under Sections 110(a)(1) and (2) for the 2006 24- of relevant provisions in existing SIPs. included a director’s discretion provision Hour Fine Particle (PM2.5) National Ambient Air Finally, EPA believes that its inconsistent with CAA requirements, including Quality Standards (NAAQS),’’ from William T, section 110(a)(2)(A). See, e.g., (75 FR 42342–42344, Harnett, Director Air Quality Policy Division, to approach is a reasonable reading of July 21, 2010) (proposed disapproval of director’s Regional Air Division Directors, Regions I–X, dated section 110(a)(1) and (2) because the discretion provisions); (76 FR 4540, Jan. 26, 2011) September 25, 2009 (the ‘‘2009 Guidance’’). statute provides other avenues and (final disapproval of such provisions).

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47066 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

should be addressed, as appropriate, commenter specifically objected to EPA is not evaluating the merits of the separately from the action on the EPA’s proposed approval because of commenter’s claims with respect to the infrastructure SIPs for this state for the existing provisions of the West Virginia particular provisions identified in the same reasons. Given this determination, SIP that pertain to opacity limits comments in this action because EPA EPA did not address these substantive applicable to certain indirect heat considers these to be beyond the scope issues in the prior proposals. exchanger sources. According to the of this action. Accordingly, EPA emphasizes that commenter, these provisions allow Comment: The commenter asserted today’s action should not be construed exceedences of the otherwise applicable that the existing West Virginia SIP as a reapproval of any potential opacity standards during SSM events. needs to be strengthened with respect to problematic provisions related to these Response: EPA disagrees with the specific ‘‘affirmative defense’’ substantive issues that may be buried commenter’s view that if a state’s provisions applicable to indirect heat within the existing SIP of this state. To existing SIP contains any arguably exchanger sources during malfunctions. the extent that there is any such existing illegal existing SSM provision, then The commenter stated that the problematic provision that EPA EPA cannot approve the infrastructure provisions in question conform to EPA determines should be addressed, EPA SIP submission of that state. As guidance ‘‘in some respects,’’ but argued plans to address such provisions in the discussed in more detail in section II of that the provisions do not meet all of the future. In the meantime, EPA this final rulemaking, EPA does not recommendations of EPA guidance and encourages any state that may have a agree that an action upon the provided its views as to how the deficient provision related to these infrastructure SIP required by section provisions should be revised. The issues to take steps to correct it as soon 110(a)(1) and (2) requires that EPA commenter argued that such provisions as possible. address any existing SSM provisions. are necessary to ‘‘ensure compliance EPA shares the commenter’s concerns with the PM2.5 NAAQS.’’ III. Summary of SIP Revision that certain existing SSM provisions Response: EPA disagrees with the The submittals referenced in the may be contrary to the CAA and existing commenter’s view that if a state’s Background section above address the EPA guidance, and that such provisions existing SIP contains any arguably infrastructure elements specified in the can have an adverse impact on air illegal existing SSM provision, CAA section 110(a)(2). These submittals quality control efforts in a given state. including a provision that includes an refer to the implementation, EPA plans to address such provisions in ‘‘affirmative defense’’ during maintenance, and enforcement of the the future, as appropriate, and in the malfunctions that may not fully comply 1997 8-hour ozone, the 1997 PM2.5 meantime encourages any state having a with EPA’s policy for such defenses, NAAQS, and the 2006 PM2.5 NAAQS. deficient SSM provision to take steps to then EPA cannot approve the The rationale supporting EPA’s correct it as soon as possible. EPA is not infrastructure SIP submission of that proposed action is explained in the NPR evaluating the merits of the state. As discussed in more detail in and the technical support document commenter’s claims with respect to the section IV of this final rulemaking, EPA (TSD) and will not be restated here. EPA particular provisions identified in the does not agree that an action upon the is also revising the portion of the TSD comments in this action because EPA infrastructure SIP required by section relating to section 110(a)(2)(D)(ii) in considers these to be beyond the scope 110(a)(1) and (2) requires that EPA order to provide a more accurate and of this action. address any existing SSM provisions. detailed explanation of the rationale Comment: The commenter also This would include reviewing any supporting EPA’s approval. The TSD is objected to EPA’s proposed approval of affirmative defense provisions that available online at http:// the infrastructure SIP submission relate to excess emissions during SSM www.regulations.gov, Docket number because of existing provisions of the events. EPA is not evaluating the merits EPA–R03–OAR–2010–0157. Finally, on West Virginia SIP that pertain to opacity of the commenter’s claims with respect June 16, 2010, EPA received comments standards applicable to hot mix asphalt to the particular provisions identified in on its May 17, 2010 NPR. A summary sources. According to the commenter, the comments in this action because of the comments submitted and EPA’s these provisions enable the sources to EPA considers these to be beyond the responses are provided in Section IV of have higher opacity during SSM events scope of this action. this document. and that such provisions do not meet Comment: In addition to more general EPA guidance with respect to such concerns about the impacts of excess IV. Summary of Public Comments and higher limits in order to minimize emissions during SSM events, the EPA Responses excess emissions. The commenter commenter specifically expressed Comment: The commenter objected argued that because the emissions limits concern that such emissions could have generally to EPA’s proposed approval of at issue are part of the existing SIP, the impacts contrary to the CAA ‘‘whether the infrastructure SIP submissions on state should be required to remove the in the State of West Virginia, or the grounds that the existing West provisions unless they meet certain elsewhere downwind.’’ Thus, the Virginia SIP contains provisions criteria. commenter argued that such provisions addressing excess emissions during Response: As stated in the previous would be contrary to both section periods of SSM that do not meet the response, EPA disagrees with the ‘‘110(a)(2)(A) and (D).’’ EPA presumes requirements of the CAA. The commenter’s view that if a state’s that the commenter’s reference to ‘‘D’’ commenter argued that even though the existing SIP contains any arguably was intended to be a reference to the SIP revision that EPA proposed to illegal existing SSM provision, then interstate transport provisions of section approve in this action did not contain EPA cannot approve the infrastructure 110(a)(2)(D)(i)(I), given the context of the provisions to which the commenter SIP submission of that state. As the statements about impacts of objects, the presence of existing startup, discussed in more detail in section II of emissions on attainment of the NAAQS shutdown, and malfunction provisions this final rulemaking, EPA does not in other states. in West Virginia’s SIP that are contrary agree that an action upon the Response: EPA disagrees with the to the CAA compromise the State’s infrastructure SIP required by section commenter’s assertion. First, as was ability to ensure compliance with the 110(a)(1) and (2) requires that EPA explained in the proposed action, EPA PM2.5 and ozone NAAQS. The address any existing SSM provisions. is not addressing the requirement of

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47067

section 110(a)(D)(i) in these actions. EPA determined that while West those imposed by state law. For that Therefore, the comment is not germane Virginia had an approved PSD program reason, this action: to this action. Second, the commenter in its SIP codified at 40 CFR 52.2520, • Is not a ‘‘significant regulatory did not provide support for the West Virginia’s regulation, 45CSR14, action’’ subject to review by the Office contention that excess emissions during did not fully incorporate NOX as a of Management and Budget under such events do have the impacts on precursor for ozone. On July 20, 2009, Executive Order 12866 (58 FR 51735, other states prohibited by section West Virginia submitted revisions to October 4, 1993); • 110(a)(2)(D)(i). At this time, EPA does 45CSR14 to include NOX as a precursor Does not impose an information not have information indicating that for ozone. EPA has approved this PSD collection burden under the provisions such excess emissions could have such SIP revision and element 110(a)(2)(C) as of the Paperwork Reduction Act (44 impacts on any areas. Absent it pertains to the PSD permit program U.S.C. 3501 et seq.); information indicating such impacts, for the 1997 8-hour ozone NAAQS was • Is certified as not having a EPA believes that there is no factual addressed in this separate action. A significant economic impact on a basis for the commenter’s contention. notice of proposed rulemaking was substantial number of small entities under the Regulatory Flexibility Act V. Final Action published on December 17, 2010 (75 FR 78949) and a final rulemaking notice (5 U.S.C. 601 et seq.); • EPA is approving the State of West was published on May 27, 2011 (76 FR Does not contain any unfunded Virginia’s submittals that provide the 30832). mandate or significantly or uniquely basic program elements specified in the Two elements identified in section affect small governments, as described CAA sections 110(a)(2)(A), (B), (C), 110(a)(2) are not governed by the three in the Unfunded Mandates Reform Act (D)(ii), (E), (F), (G), (H), (J), (K), (L), and year submission deadline of section of 1995 (Pub. L. 104–4); • (M), or portions thereof, necessary to 110(a)(1) because SIPs incorporating Does not have Federalism implement, maintain, and enforce the necessary local nonattainment area implications as specified in Executive 1997 8-hour ozone and PM2.5 NAAQS controls are not due within three years Order 13132 (64 FR 43255, August 10, and the 2006 PM2.5 NAAQS to West 1999); after promulgation of a new or revised • Virginia’s SIP. NAAQS, but rather are due at the time Is not an economically significant EPA made completeness findings for the nonattainment area plan regulatory action based on health or the 1997 8-hour ozone NAAQS on requirements are due pursuant to safety risks subject to Executive Order March 27, 2008 (73 FR 16205) and on 13045 (62 FR 19885, April 23, 1997); section 172. These elements are: (i) • October 22, 2008 (73 FR 62902) for the Submissions required by section Is not a significant regulatory action 1997 PM NAAQS. These findings 2.5 110(a)(2)(C) to the extent that subsection subject to Executive Order 13211 (66 FR pertained only to whether the pertains to a permit program in Part D 28355, May 22, 2001); submissions were complete, pursuant to • Title I of the CAA; and (ii) any Is not subject to requirements of section 110(k)(1)(A), and did not submissions required by section Section 12(d) of the National constitute EPA approval or disapproval 110(a)(2)(I), which pertain to the Technology Transfer and Advancement of such submissions. The March 27, nonattainment planning requirements of Act of 1995 (15 U.S.C. 272 note) because 2008 (73 FR 16205) action made a Part D Title I of the CAA. This action application of those requirements would completeness finding that the West does not cover these specific elements. be inconsistent with the CAA; and Virginia submittals of December 3, 2007 • Does not provide EPA with the This action also does not address the and April 3, 2008 addressed some but discretionary authority to address, as requirements of section 110(a)(2)(D)(i) not all of the 110(a)(2) requirements. appropriate, disproportionate human for the 1997 8-hour ozone and PM Specifically, EPA found that West 2.5 health or environmental effects, using NAAQS and the 2006 PM NAAQS. A Virginia failed to address sections 2.5 practicable and legally permissible portion of these 110(a)(2)(D)(i) 110(a)(2)(B), (E)(i), (G) (with respect to methods, under Executive Order 12898 requirements have been addressed by authority comparable to section 303), (59 FR 7629, February 16, 1994). (H) and (J) (relating to public separate findings issued by EPA (see (70 In addition, this rule does not have notification under section 127), (M), and FR 21147, April 25, 2005); (75 FR Tribal implications as specified by Part C PSD permit program required by 32673, June 9, 2010); and (75 FR 45210, Executive Order 13175 (65 FR 67249, the November 29, 2005 (70 FR 71612, August 2, 2010)). A portion of these November 9, 2000), because the SIP is page 71699) final rule that made requirements are addressed through not approved to apply in Indian country 110(a)(2) SIP submittals, which EPA nitrogen oxides (NOX) a precursor for located in the state, and EPA notes that ozone in the Part C regulations found in will be addressing through separate it will not impose substantial direct 40 CFR 51.166 and in 40 CFR 52.21. The action. costs on Tribal governments or preempt May 21, 2008 West Virginia submittal, VI. Statutory and Executive Order Tribal law. described above and in the technical Reviews support document, addressed these B. Submission to Congress and the findings, with the exception of the Part A. General Requirements Comptroller General C PSD. Under the CAA, the Administrator is The Congressional Review Act, 5 EPA has taken separate action on the required to approve a SIP submission U.S.C. 801 et seq., as added by the Small portions of section 110(a)(2)(C) and (J) that complies with the provisions of the Business Regulatory Enforcement for the 1997 8-hour ozone NAAQS as CAA and applicable Federal regulations. Fairness Act of 1996, generally provides they relate to West Virginia’s PSD 42 U.S.C. 7410(k); 40 CFR 52.02(a). that before a rule may take effect, the permit program. With respect to this Thus, in reviewing SIP submissions, agency promulgating the rule must permit program, on November 29, 2005 EPA’s role is to approve state choices, submit a rule report, which includes a (70 FR 71612), EPA promulgated a provided that they meet the criteria of copy of the rule, to each House of the change that made NOX a precursor for the CAA. Accordingly, this action Congress and to the Comptroller General ozone in the Part C regulations at 40 merely approves state law as meeting of the United States. EPA will submit a CFR 51.166 and 40 CFR 52.21. In the Federal requirements and does not report containing this action and other March 27, 2008 completeness findings, impose additional requirements beyond required information to the U.S. Senate,

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47068 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

the U.S. House of Representatives, and such rule or action. This action PART 52—[AMENDED] the Comptroller General of the United pertaining to West Virginia’s section States prior to publication of the rule in 110(a)(2) infrastructure requirements for ■ 1. The authority citation for part 52 the Federal Register. A major rule the 1997 8-hour ozone and PM2.5 continues to read as follows: cannot take effect until 60 days after it NAAQS, and the 2006 PM2.5 NAAQS, Authority: 42 U.S.C. 7401 et seq. is published in the Federal Register. may not be challenged later in This action is not a ‘‘major rule’’ as proceedings to enforce its requirements. Subpart XX—West Virginia defined by 5 U.S.C. 804(2). (See section 307(b)(2).) ■ 2. In § 52.2520, the table in paragraph C. Petitions for Judicial Review List of Subjects in 40 CFR Part 52 (e) is amended by adding entries at the Under section 307(b)(1) of the CAA, Environmental protection, Air end of the table for Section 110(a)(2) petitions for judicial review of this pollution control, Incorporation by Infrastructure Requirements for the 1997 action must be filed in the United States reference, Nitrogen dioxide, Ozone, 8-Hour Ozone NAAQS, Section Court of Appeals for the appropriate Reporting and recordkeeping 110(a)(2) Infrastructure Requirements circuit by October 3, 2011. Filing a requirements, Volatile organic for the 1997 PM2.5 NAAQS, and Section petition for reconsideration by the compounds. 110(a)(2) Infrastructure Requirements Administrator of this final rule does not for the 2006 PM2.5 NAAQS. The affect the finality of this action for the Dated: July 22, 2011. amendments read as follows: purposes of judicial review nor does it W.C. Early, § 52.2520 Identification of plan. extend the time within which a petition Acting, Regional Administrator, Region III. for judicial review may be filed, and * * * * * shall not postpone the effectiveness of 40 CFR part 52 is amended as follows: (e) * * *

Name of non-regulatory SIP Applicable revision geographic area State submittal date EPA approval date Additional explanation

******* Section 110(a)(2) Infrastructure Statewide ...... 12/3/07, 5/21/08 8/4/11 [Insert page number This action addresses the fol- Requirements for the 1997 8- where the document begins]. lowing CAA elements or por- Hour Ozone NAAQS. tions thereof: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Section 110(a)(2) Infrastructure Statewide ...... 4/3/08, 5/21/08, 8/4/11 [Insert page number This action addresses the fol- Requirements for the 1997 7/9/08, 3/18/10 where the document begins]. lowing CAA elements or por- PM2.5 NAAQS. tions thereof: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). Section 110(a)(2) Infrastructure Statewide ...... 10/1/09, 3/18/10 8/4/11 [Insert page number This action addresses the fol- Requirements for the 2006 where the document begins]. lowing CAA elements or por- PM2.5 NAAQS. tions thereof: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M).

[FR Doc. 2011–19692 Filed 8–3–11; 8:45 am] address the infrastructure elements available, i.e., confidential business BILLING CODE 6560–50–P specified in the CAA section 110(a)(2), information (CBI) or other information necessary to implement, maintain, and whose disclosure is restricted by statute. enforce the 1997 8-hour ozone and fine Certain other material, such as ENVIRONMENTAL PROTECTION particulate matter (PM2.5) national copyrighted material, is not placed on AGENCY ambient air quality standards (NAAQS) the Internet and will be publicly and the 2006 PM2.5 NAAQS. This final available only in hard copy form. 40 CFR Part 52 rule is limited to the following Publicly available docket materials are [EPA–R03–OAR–2010–0158; FRL–9447–7] infrastructure elements which were available either electronically through subject to EPA’s completeness findings http://regulations.gov or in hard copy Approval and Promulgation of Air pursuant to CAA section (k)(1) for the for public inspection during normal Quality Implementation Plans; 1997 8-hour ozone NAAQS dated March business hours at the Air Protection Delaware; Section 110(a)(2) 27, 2008 and the 1997 PM2.5 NAAQS Division, U.S. Environmental Protection Infrastructure Requirements for the dated October 22, 2008: 110(a)(2)(A), Agency, Region III, 1650 Arch Street, 1997 8-Hour Ozone and the 1997 and (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), Philadelphia, Pennsylvania 19103. 2006 Fine Particulate Matter National (L), and (M), or portions thereof. Copies of the State submittal are Ambient Air Quality Standards DATES: Effective Date: This final rule is available at the Delaware Department of Natural Resources and Environmental AGENCY: Environmental Protection effective on September 6, 2011. Control, 89 Kings Highway, P.O. Box Agency (EPA). ADDRESSES: EPA has established a 1401, Dover, Delaware 19903. ACTION: Final rule. docket for this action under Docket ID Number EPA–R03–OAR–2010–0158. All FOR FURTHER INFORMATION CONTACT: SUMMARY: EPA is approving submittals documents in the docket are listed in Ellen Wentworth, (215) 814–2034, or by from the State of Delaware pursuant to the http://regulations.gov Web site. e-mail at [email protected]. the Clean Air Act (CAA) sections Although listed in the electronic docket, SUPPLEMENTARY INFORMATION: 110(k)(2) and (3). These submittals some information is not publicly Throughout this document, whenever

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47069

‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean purport to permit revisions to SIP integral parts of acting on an EPA. approved emissions limits with limited infrastructure SIP submission, and public process or without requiring therefore that EPA was merely I. Background further approval by EPA, that may be postponing taking final action on the On June 3, 2010 (75 FR 31340), EPA contrary to the CAA. EPA notes that issue in the context of the infrastructure published a notice of proposed there are two other substantive issues SIPs. This was not EPA’s intention. To rulemaking (NPR) for the State of for which EPA likewise stated in other the contrary, EPA only meant to convey Delaware. The NPR proposed approval proposals that it would address the its awareness of the potential for certain of Delaware’s submittals that provide issues separately: (i) Existing provisions types of deficiencies in existing SIPs the basic program elements specified in for minor source new source review and to prevent any misunderstanding the CAA sections 110(a)(2)(A), (B), (C), programs that may be inconsistent with that it was reapproving any such (D)(ii), (E), (F), (G), (H), (J), (K), (L), and the requirements of the CAA and EPA’s existing provisions. EPA’s intention was (M), or portions thereof, necessary to regulations that pertain to such to convey its position that the statute implement, maintain, and enforce the programs (‘‘minor source NSR’’) and (ii) does not require that infrastructure SIPs 1997 8-hour ozone and PM2.5 NAAQS existing provisions for Prevention of address these specific substantive issues and the 2006 PM2.5 NAAQS. The formal Significant Deterioration programs that in existing SIPs and that these issues submittals submitted by the State of may be inconsistent with current may be dealt with separately, outside Delaware on December 13, 2007, requirements of EPA’s ‘‘Final NSR the context of acting on the September 19, 2008, and September 16, Improvement Rule,’’ (67 FR 80186, infrastructure SIP submission of a state. 2009 addressed the section 110(a)(2) December 31, 2002), as amended by the To be clear, EPA did not mean to imply requirements for the 1997 8-hour ozone NSR Reform Rule (72 FR 32526, June 13, that it was not taking a full final agency NAAQS; the submittals dated December 2007) (NSR Reform). In light of the action on the infrastructure SIP 13, 2007, March 12, 2008, September 16, comments, EPA now believes that its submission with respect to any 2009, and March 10, 2010 addressed the statements in various proposed actions substantive issue that EPA considers to section 110(a)(2) requirements for the on infrastructure SIPs with respect to be a required part of acting on such 1997 PM2.5 NAAQS; and the submittals these four individual issues should be submissions under section 110(k) or dated September 16, 2009 and March explained in greater depth. under section 110(c). Given the 10, 2010 addressed the section 110(a)(2) EPA intended the statements in the confusion evidently resulting from

requirements for the 2006 PM2.5 other proposals concerning these four EPA’s statements in those proposals, NAAQS. issues merely to be informational and to however, we want to explain more fully II. Scope of Action on Infrastructure provide general notice of the potential EPA’s reasons for concluding that these Submissions existence of provisions within the four potential substantive issues in existing SIPs of some states that might EPA is currently acting upon State existing SIPs may be addressed require future corrective action. EPA did separately. Implementation Plans (SIPs) that not want states, regulated entities, or address the infrastructure requirements members of the public to be under the The requirement for the SIP of CAA section 110(a)(1) and (2) for the misconception that EPA’s approval of submissions at issue arises out of CAA ozone and PM2.5 NAAQS for various the infrastructure SIP submission of a section 110(a)(1). That provision states across the country. Commenters given state should be interpreted as a requires that states must make a SIP on EPA’s recent proposals for some reapproval of certain types of provisions submission ‘‘within 3 years (or such states raised concerns about EPA that might exist buried in the larger shorter period as the Administrator may statements that it was not addressing existing SIP for such state. Thus, for prescribe) after the promulgation of a certain substantive issues in the context example, EPA explicitly noted that we national primary ambient air quality of acting on those infrastructure SIP believe that some states may have standard (or any revision thereof)’’ and submissions.1 Those commenters existing SIP approved SSM provisions that these SIPs are to provide for the specifically raised concerns involving that are contrary to the CAA and EPA ‘‘implementation, maintenance, and provisions in existing SIPs and with policy, but that ‘‘in this rulemaking, enforcement’’ of such NAAQS. Section EPA’s statements in other proposals that EPA is not proposing to approve or 110(a)(2) includes a list of specific it would address two issues separately disapprove any existing State provisions elements that ‘‘[e]ach such plan’’ and not as part of actions on the with regard to excess emissions during submission must meet. EPA has infrastructure SIP submissions: (i) SSM of operations at facilities.’’ EPA historically referred to these particular Existing provisions related to excess further explained, for informational submissions that states must make after emissions during periods of start-up, purposes, that ‘‘EPA plans to address the promulgation of a new or revised shutdown, or malfunction (SSM) at such State regulations in the future.’’ NAAQS as ‘‘infrastructure SIPs.’’ This sources, that may be contrary to the EPA made similar statements, for specific term does not appear in the CAA and EPA’s policies addressing similar reasons, with respect to the statute, but EPA uses the term to such excess emissions; and (ii) existing director’s discretion, minor source NSR, distinguish this particular type of SIP provisions related to ‘‘director’s and NSR Reform issues. EPA’s objective submission designed to address basic variance’’ or ‘‘director’s discretion’’ that was to make clear that approval of an structural requirements of a SIP from infrastructure SIP for these ozone and other types of SIP submissions designed 1 See, Comments of Midwest Environmental PM2.5 NAAQS should not be construed to address other different requirements, Defense Center, dated May 31, 2011. Docket #EPA– as explicit or implicit reapproval of any such as ‘‘nonattainment SIP’’ R05–OAR–2007–1179 (adverse comments on proposals for three states in Region 5). EPA notes existing provisions that relate to these submissions required to address the that these public comments on another proposal are four substantive issues. nonattainment planning requirements of not relevant to this rulemaking and do not have to Unfortunately, the commenters and part D, ‘‘regional haze SIP’’ submissions be directly addressed in this rulemaking. EPA will others evidently interpreted these required to address the visibility respond to these comments in the appropriate rulemaking action to which they apply. EPA did statements to mean that EPA considered protection requirements of CAA section receive specific adverse comments in this action action upon the SSM provisions and the 169A, new source review permitting that are discussed in more detail in section IV. other three substantive issues to be program submissions required to

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47070 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

address the requirements of part D, and ‘‘infrastructure SIP’’ for a given NAAQS episodes, as such requirements would a host of other specific types of SIP without concurrent action on all not be limited to nonattainment areas. submissions that address other specific subsections, such as section As this example illustrates, each type of matters. 110(a)(2)(D)(i), because EPA bifurcated SIP submission may implicate some Although section 110(a)(1) addresses the action on these latter ‘‘interstate subsections of section 110(a)(2) and not the timing and general requirements for transport’’ provisions within section others. these infrastructure SIPs and section 110(a)(2) and worked with states to Given the potential for ambiguity of 110(a)(2) provides more details address each of the four prongs of the statutory language of section concerning the required contents of section 110(a)(2)(D)(i) with substantive 110(a)(1) and (2), EPA believes that it is these infrastructure SIPs, EPA believes administrative actions proceeding on appropriate for EPA to interpret that that many of the specific statutory different tracks with different language in the context of acting on the provisions are facially ambiguous. In schedules.5 This illustrates that EPA infrastructure SIPs for a given NAAQS. particular, the list of required elements may conclude that subdividing the Because of the inherent ambiguity of the provided in section 110(a)(2) contains a applicable requirements of section list of requirements in section 110(a)(2), wide variety of disparate provisions, 110(a)(2) into separate SIP actions may EPA has adopted an approach in which some of which pertain to required legal sometimes be appropriate for a given it reviews infrastructure SIPs against authority, some of which pertain to NAAQS where a specific substantive this list of elements ‘‘as applicable.’’ In required substantive provisions, and action is necessitated, beyond a mere other words, EPA assumes that Congress some of which pertain to requirements submission addressing basic structural could not have intended that each and for both authority and substantive aspects of the state’s SIP. Finally, EPA every SIP submission, regardless of the provisions.2 Some of the elements of notes that not every element of section purpose of the submission or the section 110(a)(2) are relatively 110(a)(2) would be relevant, or as NAAQS in question, would meet each straightforward, but others clearly relevant, or relevant in the same way, of the requirements, or meet each of require interpretation by EPA through for each new or revised NAAQS and the them in the same way. EPA elected to rulemaking, or recommendations attendant infrastructure SIP submission through guidance, in order to give use guidance to make recommendations for that NAAQS. For example, the for infrastructure SIPs for these NAAQS. specific meaning for a particular monitoring requirements that might be 3 On October 2, 2007, EPA issued NAAQS. necessary for purposes of section guidance making recommendations for Notwithstanding that section 110(a)(2) 110(a)(2)(B) for one NAAQS could be the infrastructure SIP submissions for states that ‘‘each’’ SIP submission must very different than what might be both the 1997 8-hour ozone NAAQS and meet the list of requirements therein, necessary for a different pollutant. Thus, the 1997 PM NAAQS.7 Within this EPA has long noted that this literal the content of an infrastructure SIP 2.5 reading of the statute is internally guidance document, EPA described the submission to meet this element from a inconsistent, insofar as section duty of states to make these submissions state might be very different for an 110(a)(2)(I) pertains to nonattainment to meet what EPA characterized as the entirely new NAAQS, versus a minor SIP requirements that could not be met ‘‘infrastructure’’ elements for SIPs, revision to an existing NAAQS.6 on the schedule provided for these SIP which it further described as the ‘‘basic Similarly, EPA notes that other types submissions in section 110(a)(1).4 This SIP requirements, including emissions of SIP submissions required under the illustrates that EPA must determine inventories, monitoring, and modeling statute also must meet the requirements which provisions of section 110(a)(2) to assure attainment and maintenance of of section 110(a)(2), and this also may be applicable for a given the standards.’’ 8 As further demonstrates the need to identify the infrastructure SIP submission. identification of these basic structural applicable elements for other SIP Similarly, EPA has previously decided SIP requirements, ‘‘attachment A’’ to the submissions. For example, that it could take action on different guidance document included a short nonattainment SIPs required by part D parts of the larger, general description of the various elements of likewise have to meet the relevant section 110(a)(2) and additional subsections of section 110(a)(2) such as 2 For example, section 110(a)(2)(E) provides that information about the types of issues section 110(a)(2)(A) or (E). By contrast, states must provide assurances that they have that EPA considered germane in the adequate legal authority under state and local law it is clear that nonattainment SIPs context of such infrastructure SIPs. EPA to carry out the SIP; section 110(a)(2)(C) provides would not need to meet the portion of emphasized that the description of the that states must have a substantive program to section 110(a)(2)(C) that pertains to part address certain sources as required by part C of the basic requirements listed on attachment C, i.e., the PSD requirements applicable CAA; section 110(a)(2)(G) provides that states must A was not intended ‘‘to constitute an have both legal authority to address emergencies in attainment areas. Nonattainment SIPs interpretation of’’ the requirements and and substantive contingency plans in the event of required by part D also would not need was merely a ‘‘brief description of the such an emergency. to address the requirements of section 3 For example, section 110(a)(2)(D)(i) requires required elements.’’ 9 EPA also stated its 110(a)(2)(G) with respect to emergency EPA to be sure that each state’s SIP contains belief that with one exception, these adequate provisions to prevent significant contribution to nonattainment of the NAAQS in 5 EPA issued separate guidance to states with requirements were ‘‘relatively self other states. This provision contains numerous respect to SIP submissions to meet section explanatory, and past experience with terms that require substantial rulemaking by EPA in 110(a)(2)(D)(i) for the 1997 ozone and 1997 PM2.5 SIPs for other NAAQS should enable order to determine such basic points as what NAAQS. See, ‘‘Guidance for State Implementation states to meet these requirements with constitutes significant contribution. See, e.g., ‘‘Rule Plan (SIP) Submissions to Meet Current To Reduce Interstate Transport of Fine Particulate Outstanding Obligations Under Section 7 Matter and Ozone (Clean Air Interstate Rule); 110(a)(2)(D)(i) for the 8-Hour Ozone and PM2.5 See, ‘‘Guidance on SIP Elements Required Revisions to Acid Rain Program; Revisions to the National Ambient Air Quality Standards,’’ from Under Section 110(a)(1) and (2) for the 1997 8-hour NOx SIP Call; Final Rule,’’ (70 FR 25162, May 12, William T. Harnett, Director Air Quality Policy Ozone and PM2.5 National Ambient Air Quality 2005) (defining, among other things, the phrase Division OAQPS, to Regional Air Division Director, Standards,’’ from William T. Harnett, Director Air ‘‘contribute significantly to nonattainment’’). Regions I–X, dated August 15, 2006. Quality Policy Division, to Air Division Directors, 4 6 See, e.g., Id., (70 FR 25162, at 63–65, May 12, For example, implementation of the 1997 PM2.5 Regions I–X, dated October 2, 2007 (the ‘‘2007 2005) (explaining relationship between timing NAAQS required the deployment of a system of Guidance’’). requirement of section 110(a)(2)(D) versus section new monitors to measure ambient levels of that new 8 Id., at page 2. 110(a)(2)(I)). indicator species for the new NAAQS. 9 Id., at attachment A, page 1.

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47071

assistance from EPA Regions.’’ 10 For the Instead, EPA’s 2007 Guidance merely call’’ whenever EPA determines that a one exception to that general indicated its belief that the states should state’s SIP is substantially inadequate to assumption, however, i.e., how states make submissions in which they attain or maintain the NAAQS, to should proceed with respect to the established that they have the basic SIP mitigate interstate transport, or requirements of section 110(a)(2)(G) for structure necessary to implement, otherwise to comply with the CAA.12 the 1997 PM2.5 NAAQS, EPA gave much maintain, and enforce the NAAQS. EPA Section 110(k)(6) authorizes EPA to more specific recommendations. But for believes that states can establish that correct errors in past actions, such as other infrastructure SIP submittals, and they have the basic SIP structure, past approvals of SIP submissions.13 for certain elements of the submittals for notwithstanding that there may be Significantly, EPA’s determination that the 1997 PM2.5 NAAQS, EPA assumed potential deficiencies within the an action on the infrastructure SIP is not that each state would work with its existing SIP. Thus, EPA’s other the appropriate time and place to corresponding EPA regional office to proposals mentioned these issues not address all potential existing SIP refine the scope of a state’s submittal because EPA considers them issues that problems does not preclude EPA’s based on an assessment of how the must be addressed in the context of an subsequent reliance on provisions in requirements of section 110(a)(2) should infrastructure SIP as required by section section 110(a)(2) as part of the basis for reasonably apply to the basic structure 110(a)(1) and (2), but rather because action at a later time. For example, of the state’s SIP for the NAAQS in EPA wanted to be clear that it considers although it may not be appropriate to question. these potential existing SIP problems as require a state to eliminate all existing On September 25, 2009, EPA issued separate from the pending infrastructure inappropriate director’s discretion guidance to make recommendations to SIP actions. provisions in the course of acting on the states with respect to the infrastructure EPA believes that this approach to the infrastructure SIP, EPA believes that 11 SIPs for the 2006 PM2.5 NAAQS. In the infrastructure SIP requirement is section 110(a)(2)(A) may be among the 2009 Guidance, EPA addressed a reasonable, because it would not be statutory bases that EPA cites in the number of additional issues that were feasible to read section 110(a)(1) and (2) course of addressing the issue in a not germane to the infrastructure SIPs to require a top to bottom, stem to stern, subsequent action.14 for the 1997 8-hour ozone and 1997 review of each and every provision of an EPA’s proposed approval of the PM2.5 NAAQS, but were germane to existing SIP merely for purposes of infrastructure SIP submissions from these SIP submissions for the 2006 assuring that the state in question has Delaware predated the actions on the PM2.5 NAAQS, e.g., the requirements of the basic structural elements for a submissions of other states and thus section 110(a)(2)(D)(i) that EPA had functioning SIP for a new or revised occurred before EPA decided to provide bifurcated from the other infrastructure NAAQS. Because SIPs have grown by the informational statements concerning elements for those specific 1997 ozone accretion over the decades as statutory the SSM, director’s discretion, minor and PM2.5 NAAQS. and regulatory requirements under the source NSR, and NSR Reform issues as Significantly, neither the 2007 CAA have evolved, they may include specific substantive issues that EPA was Guidance nor the 2009 Guidance some outmoded provisions and not addressing in this context. However, explicitly referred to the SSM, director’s historical artifacts that, while not fully EPA determined that these four issues discretion, minor source NSR, or NSR up to date, nevertheless may not pose a should be addressed, as appropriate, Reform issues as among specific significant problem for the purposes of separately from the action on the substantive issues EPA expected states ‘‘implementation, maintenance, and infrastructure SIPs for this state for the to address in the context of the enforcement’’ of a new or revised same reasons. Given this determination, infrastructure SIPs, nor did EPA give NAAQS when EPA considers the overall EPA did not address these substantive any more specific recommendations effectiveness of the SIP. To the contrary, issues in the prior proposals. with respect to how states might address EPA believes that a better approach is Accordingly, EPA emphasizes that such issues even if they elected to do so. for EPA to determine which specific SIP The SSM and director’s discretion elements from section 110(a)(2) are 12 EPA has recently issued a SIP call to rectify a issues implicate section 110(a)(2)(A), applicable to an infrastructure SIP for a specific SIP deficiency related to the SSM issue. and the minor source NSR and NSR given NAAQS, and to focus attention on See, ‘‘Finding of Substantial Inadequacy of Reform issues implicate section those elements that are most likely to Implementation Plan; Call for Utah State 110(a)(2)(C). In the 2007 Guidance, Implementation Plan Revision,’’ (74 FR 21639, need a specific SIP revision in light of April 18, 2011). however, EPA did not indicate to states the new or revised NAAQS. Thus, for 13 EPA has recently utilized this authority to that it intended to interpret these example, EPA’s 2007 Guidance correct errors in past actions on SIP submissions provisions as requiring a substantive specifically directed states to focus on related to PSD programs. See, ‘‘Limitation of submission to address these specific the requirements of section 110(a)(2)(G) Approval of Prevention of Significant Deterioration Provisions Concerning Greenhouse Gas Emitting- issues in the context of the for the 1997 PM2.5 NAAQS because of Sources in State Implementation Plans; Final Rule,’’ infrastructure SIPs for these NAAQS. the absence of underlying EPA (75 FR 82536, Dec. 30, 2010). EPA has previously regulations for emergency episodes for used its authority under CAA 110(k)(6) to remove 10 Id., at page 4. In retrospect, the concerns raised this NAAQS and an anticipated absence numerous other SIP provisions that EPA by commenters with respect to EPA’s approach to of relevant provisions in existing SIPs. determined it had approved in error. See, e.g., (61 some substantive issues indicates that the statute is FR 38664, July 25, 1996) and (62 FR 34641, June not so ‘‘self explanatory,’’ and indeed is sufficiently Finally, EPA believes that its 27, 1997) (corrections to American Samoa, Arizona, ambiguous that EPA needs to interpret it in order approach is a reasonable reading of California, Hawaii, and Nevada SIPs); (69 FR 67062, to explain why these substantive issues do not need section 110(a)(1) and (2) because the November 16, 2004) (corrections to California SIP); to be addressed in the context of infrastructure SIPs statute provides other avenues and and (74 FR 57051, November 3, 2009) (corrections and may be addressed at other times and by other to Arizona and Nevada SIPs). means. mechanisms to address specific 14 EPA has recently disapproved a SIP submission 11 See, ‘‘Guidance on SIP Elements Required substantive deficiencies in existing SIPs. from Colorado on the grounds that it would have Under Sections 110(a)(1) and (2) for the 2006 24- These other statutory tools allow EPA to included a director’s discretion provision Hour Fine Particle (PM2.5) National Ambient Air take appropriate tailored action, inconsistent with CAA requirements, including Quality Standards (NAAQS),’’ from William T, depending upon the nature and severity section 110(a)(2)(A). See, e.g., (75 FR 42342–42344, Harnett, Director Air Quality Policy Division, to July 21, 2010)(proposed disapproval of director’s Regional Air Division Directors, Regions I–X, dated of the alleged SIP deficiency. Section discretion provisions); (76 FR 4540, Jan. 26, 2011) September 25, 2009 (the ‘‘2009 Guidance’’). 110(k)(5) authorizes EPA to issue a ‘‘SIP (final disapproval of such provisions).

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47072 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

today’s action should not be construed state’s ability to achieve and maintain 110(a)(1) and (2) requires that EPA as a reapproval of any potential the PM2.5 and ozone NAAQS.’’ address any existing director’s problematic provisions related to these Response: EPA disagrees with the discretion provisions, or such substantive issues that may be buried commenter’s view that if a state’s provisions in combination with existing within the existing SIP of this state. To existing SIP contains any arguably SSM provisions. the extent that there is any such existing illegal existing SSM provision, then EPA shares the commenter’s concerns problematic provision that EPA EPA cannot approve the infrastructure that certain existing director’s discretion determines should be addressed, EPA SIP submission of that state. As provisions in combination with existing plans to address such provisions in the discussed in more detail in section II of SSM provisions may be contrary to the future. In the meantime, EPA this final rulemaking, EPA does not CAA and existing EPA guidance and encourages any state that may have a agree that an action upon the that such provisions can have an deficient provision related to these infrastructure SIP required by section adverse impact on air quality control issues to take steps to correct it as soon 110(a)(1) and (2) requires that EPA efforts in a given state. EPA plans to as possible. address any existing SSM provisions. take action in the future to address such EPA shares the commenter’s concerns provisions, as appropriate, and in the III. Summary of Relevant Submissions that certain existing SSM provisions meantime encourages any state having a The submittals referenced in the may be contrary to the CAA and existing deficient director’s discretion or Background section above address the EPA guidance, and that such provisions director’s variance provision to take infrastructure elements specified in the can have an adverse impact on air steps to correct it as soon as possible. CAA section 110(a)(2). These submittals quality control efforts in a given state. EPA is not evaluating the merits of the refer to the implementation, EPA plans to address such provisions in commenter’s claims with respect to the maintenance and enforcement of the the future, as appropriate, and in the particular provisions identified in the 1997 8-hour ozone, the 1997 PM2.5 meantime encourages any state having a comments in this action because EPA NAAQS, and the 2006 PM2.5 NAAQS. deficient SSM provision to take steps to considers these to be beyond the scope The rationale supporting EPA’s correct it as soon as possible. EPA is not of this action. proposed action is explained in the NPR evaluating the merits of the Comment: The commenter asserted and the technical support document commenter’s claims with respect to the that Delaware’s New Source (TSD) and will not be restated here. On particular provisions identified in the Performance Standards (NSPS) July 6, 2010, EPA received adverse comments in this action because EPA regulations are not SIP approved but comments on the June 3, 2010 NPR. A considers these to be beyond the scope nevertheless contain ‘‘loopholes’’ for summary of the comments submitted of this action. emissions during periods of startup, and EPA’s responses are provided in Comment: The commenter also shutdown, and/or malfunction that are Section IV of this document. EPA is also objected to EPA’s proposed approval of less stringent than, or inconsistent with, revising the portion of the TSD relating the infrastructure SIP submission federal law. The commenter provided to section 110(a)(2)(D)(ii) in order to because of existing provisions of the details on specific regulatory provisions provide a more accurate and detailed Delaware SIP that pertain to NOX that the commenter characterized as explanation of the rationale supporting emission from certain stationary inconsistent with federal law. The EPA’s approval. The TSD is available on sources. According to the commenter, commenter acknowledged that these line at http://regulations.gov, Docket these provisions enable the state to specific provisions are not SIP number EPA–R03–OAR–2010–0158. allow sources to avoid otherwise approved, but argued that the provisions applicable NOX emissions limits during affect the ability to enforce emissions IV. Summary of Public Comments and SSM events. Moreover, the commenter limits in state court or administrative EPA Responses objected to the provisions on the proceedings and therefore potentially Comment: The commenter objected to grounds that they allegedly allow the undermine the CAA and EPA’s ability to EPA’s proposed approval of the state to make such revisions to the NOX ensure implementation of the CAA. infrastructure SIP submission on the limits ‘‘outside the SIP-revision Response: EPA disagrees with these grounds that the existing Delaware SIP process,’’ thereby precluding EPA from comments. First, as the commenter contain provisions addressing excess ensuring that such revisions would meet agrees, provisions of state law that are emissions during periods of SSM, that EPA’s applicable guidance on not SIP approved are by definition not do not meet the requirements of the provisions related to SSM. Thus, something that is relevant to EPA’s CAA. The commenter argued that even according to the commenter, the action on the specific infrastructure SIP though the SIP revisions that EPA existing provisions combine an under consideration in this action. proposed to approve in this action did impermissible director’s discretion EPA’s review of the infrastructure SIP is not contain the provisions to which the provision with an impermissible SSM to evaluate the basic structural commenter objects, the presence of provision, and these director’s components of the SIP to assure that it existing SSM provisions in Delaware’s discretion and variance provisions are meets basic requirements for SIP that are contrary to the CAA contrary to the CAA. implementation, maintenance, and compromise the State’s ability to ensure Response: EPA also disagrees with the enforcement of the NAAQS. Provisions compliance with the PM2.5 and ozone commenter’s conclusion that if a state’s of state law that are not within the SIP NAAQS. The commenter provided existing SIP contains any arguably are outside the scope of this action, even details on specific regulatory provisions illegal director’s discretion or director’s if they related to an issue that was that the commenter characterized as variance provision in combination with otherwise germane to this action. inconsistent with Federal law. an arguably illegal SSM provision, then Second, as explained in response to According to the commenter, these EPA cannot approve the infrastructure commenters other concerns with provisions ‘‘potentially create blanket SIP submission of that state. As provisions that are within the SIP, EPA exemptions’’ for emissions during SSM discussed in more detail in section II of does not agree that an action upon an events and these exemptions enable this final rulemaking, EPA does not infrastructure SIP submission required sources to emit excessive amounts of agree that an action upon the by section 110(a)(1) and (2) requires that pollutants that could ‘‘compromise the infrastructure SIP required by section EPA address any existing SSM

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47073

provisions. The bases for EPA’s view by separate findings issued by EPA (See In addition, this rule does not have that such provisions should be (70 FR 21147, April 25, 2005); (75 FR tribal implications as specified by addressed separately is explained in 32673, June 9, 2010), and (76 FR 2853, Executive Order 13175 (65 FR 67249, more detail in section II of this final January 18, 2011)). A portion of these November 9, 2000), because the SIP is rulemaking, requirements are addressed through not approved to apply in Indian country 110(a)(2) SIP submittals, which EPA V. Final Action located in the state, and EPA notes that will be addressing through separate it will not impose substantial direct EPA is approving the State of action. costs on tribal governments or preempt Delaware’s submittals that provide the tribal law. basic program elements specified in the VI. Statutory and Executive Order CAA sections 110(a)(2)(A), (B), (C), Reviews B. Submission to Congress and the (D)(ii), (E), (F), (G), (H), (J), (K), (L), and A. General Requirements Comptroller General (M), or portions thereof, necessary to Under the CAA, the Administrator is implement, maintain, and enforce the The Congressional Review Act, 5 required to approve a SIP submission 1997 8-hour ozone and PM NAAQS U.S.C. 801 et seq., as added by the Small 2.5 that complies with the provisions of the and the 2006 PM NAAQS. EPA made Business Regulatory Enforcement 2.5 CAA and applicable Federal regulations. completeness findings for the 1997 8- Fairness Act of 1996, generally provides 42 U.S.C. 7410(k); 40 CFR 52.02(a). hour ozone NAAQS on March 27, 2008 that before a rule may take effect, the Thus, in reviewing SIP submissions, (73 FR 16205) and on October 22, 2008 agency promulgating the rule must EPA’s role is to approve state choices, (73 FR 62902) for the 1997 PM submit a rule report, which includes a 2.5 provided that they meet the criteria of NAAQS. These findings pertained only copy of the rule, to each House of the the CAA. Accordingly, this action to whether the submissions were Congress and to the Comptroller General merely approves state law as meeting complete, pursuant to 110(k)(1)(A), and of the United States. EPA will submit a Federal requirements and does not did not constitute EPA approval or report containing this action and other impose additional requirements beyond disapproval of such submissions. The required information to the U.S. Senate, those imposed by state law. For that March 27, 2008 finding noted that the U.S. House of Representatives, and reason, this action: the Comptroller General of the United Delaware failed to submit a complete • Is not a ‘‘significant regulatory SIP addressing the portions of (C) and States prior to publication of the rule in action’’ subject to review by the Office the Federal Register. A major rule (J) relating to the Part C permit program of Management and Budget under for the 1997 8-hour ozone NAAQS. cannot take effect until 60 days after it Executive Order 12866 (58 FR 51735, is published in the Federal Register. Specifically, EPA found that Delaware October 4, 1993); failed to address sections 110(a)(2)(C) • This action is not a ‘‘major rule’’ as Does not impose an information defined by 5 U.S.C. 804(2). and (J) pertaining to changes to its Part collection burden under the provisions C PSD permit program required by the of the Paperwork Reduction Act (44 C. Petitions for Judicial Review November 29, 2005 (70 FR 71612, page U.S.C. 3501 et seq.); 71699) final rule that made nitrogen • Is certified as not having a Under section 307(b)(1) of the CAA, oxides (NOX) a precursor for ozone in significant economic impact on a petitions for judicial review of this the Part C regulations found at 40 CFR substantial number of small entities action must be filed in the United States 51.166 and in 40 CFR 52.21. EPA has under the Regulatory Flexibility Act Court of Appeals for the appropriate taken separate action on the portions of (5 U.S.C. 601 et seq.); circuit by October 3, 2011. Filing a section 110(a)(2)(C) and (J) for the 1997 • Does not contain any unfunded petition for reconsideration by the 8-hour ozone NAAQS as they relate to mandate or significantly or uniquely Administrator of this final rule does not Delaware’s PSD permit program (76 FR affect small governments, as described affect the finality of this action for the 26679). in the Unfunded Mandates Reform Act purposes of judicial review nor does it Two elements identified in section of 1995 (Pub. L. 104–4); extend the time within which a petition 110(a)(2) are not governed by the three • Does not have Federalism for judicial review may be filed, and year submission deadline of section implications as specified in Executive shall not postpone the effectiveness of 110(a)(1) because SIPs incorporating Order 13132 (64 FR 43255, August 10, such rule or action. This action necessary local nonattainment area 1999); pertaining to Delaware’s section controls are not due within three years • Is not an economically significant 110(a)(2) infrastructure requirements for after promulgation of a new or revised regulatory action based on health or the 1997 8-hour ozone and PM2.5 NAAQS, but rather are due at the time safety risks subject to Executive Order NAAQS, and the 2006 PM2.5 NAAQS, the nonattainment area plan 13045 (62 FR 19885, April 23, 1997); may not be challenged later in requirements are due pursuant to • Is not a significant regulatory action proceedings to enforce its requirements. section 172. These elements are: (i) subject to Executive Order 13211 (66 FR (See section 307(b)(2).) Submissions required by section 28355, May 22, 2001); 110(a)(2)(C) to the extent that subsection • Is not subject to requirements of List of Subjects in 40 CFR Part 52 pertains to a permit program in Part D Section 12(d) of the National Environmental protection, Air Title I of the CAA; and (ii) any Technology Transfer and Advancement pollution control, Incorporation by submissions required by section Act of 1995 (15 U.S.C. 272 note) because reference, Nitrogen dioxide, Ozone, 110(a)(2)(I), which pertain to the application of those requirements would Reporting and recordkeeping nonattainment planning requirements of be inconsistent with the CAA; and Part D Title I of the CAA. This action • Does not provide EPA with the requirements, Volatile organic does not cover these specific elements. discretionary authority to address, as compounds. This action also does not address the appropriate, disproportionate human Dated: July 22, 2011. requirements of 110(a)(2)(D)(i) for the health or environmental effects, using W.C. Early, 1997 8-hour ozone and PM2.5 NAAQS or practicable and legally permissible Acting, Regional Administrator, Region III. for the 2006 PM2.5 NAAQS. A portion of methods, under Executive Order 12898 these requirements have been addressed (59 FR 7629, February 16, 1994). 40 CFR part 52 is amended as follows:

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47074 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

PART 52—[AMENDED] Subpart I—Delaware NAAQS, and Section 110(a)(2) Infrastructure Requirements for the 2006 ■ 2. In § 52.420, the table in paragraph ■ 1. The authority citation for part 52 PM2.5 NAAQS. The amendments read as (e) is amended by adding entries at the continues to read as follows: follows: end of the table for Delaware’s section Authority: 42 U.S.C. 7401 et seq. 110(a)(2) Infrastructure Requirements § 52.420 Identification of plan. for the 1997 8-Hour Ozone NAAQS, * * * * * Section 110(a)(2) Infrastructure (e) * * * Requirements for the 1997 PM2.5

Name of non-regulatory SIP Applicable geographic State submittal revision or nonattainment area date EPA approval date Additional explanation

******* Section 110(a)(2) Infrastructure Statewide ...... 12/13/07 8/4/11 [Insert Federal Register This action address the fol- Requirements for the 1997 8- 9/19/08 page number where the doc- lowing CAA elements: Hour Ozone NAAQS. 9/16/09 ument begins] 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M) or portions thereof. Section 110(a)(2) Infrastructure Statewide ...... 12/13/07 8/4/11 [Insert Federal Register This action addresses the fol- Requirements for the 1997 3/12/08 page number where the doc- lowing CAA elements: PM2.5 NAAQS. 9/16/09 ument begins] 110(a)(2)(A), (B), (C), (D)(ii) 3/10/10 (E), (F), (G), (H), (J), (K), (L), and (M) or portions thereof. Infrastructure Requirements for Statewide ...... 9/16/09 8/4/11 [Insert Federal Register This action addresses the fol- the 2006 PM2.5 NAAQS. 3/10/10 page number where the doc- lowing CAA elements: ument begins] 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M), or portions thereof.

[FR Doc. 2011–19694 Filed 8–3–11; 8:45 am] ADDRESSES: Submit comments, the use of special characters, any form BILLING CODE 6560–50–P identified by docket number EPA–R09– of encryption, and be free of any defects OAR–2011–0462, by one of the or viruses. following methods: Docket: Generally, documents in the ENVIRONMENTAL PROTECTION 1. Federal eRulemaking Portal: docket for this action are available AGENCY http://www.regulations.gov. Follow the electronically at http:// on-line instructions. www.regulations.gov and in hard copy 40 CFR Part 52 2. E-mail: [email protected]. at EPA Region IX, 75 Hawthorne Street, 3. Mail or deliver: Andrew Steckel San Francisco, California. While all [EPA–R09–OAR–2011–0462; FRL–9437–6] (Air-4), U.S. Environmental Protection documents in the docket are listed at http://www.regulations.gov, some Revision to the California State Agency Region IX, 75 Hawthorne Street, San Francisco, CA 94105–3901. information may be publicly available Implementation Plan; South Coast Air only at the hard copy location (e.g., Quality Management District Instructions: All comments will be included in the public docket without copyrighted material, large maps), and AGENCY: Environmental Protection change and may be made available some may not be publicly available in Agency (EPA). online at http://www.regulations.gov, either location (e.g., CBI). To inspect the hard copy materials, please schedule an ACTION: Direct final rule. including any personal information provided, unless the comment includes appointment during normal business SUMMARY: EPA is taking direct final Confidential Business Information (CBI) hours with the contact listed in the FOR action to approve a revision to the South or other information whose disclosure is FURTHER INFORMATION CONTACT section. Coast Air Quality Management District restricted by statute. Information that FOR FURTHER INFORMATION CONTACT: Mae portion of the California State you consider CBI or otherwise protected Wang, EPA Region IX, (415) 947–4124, Implementation Plan (SIP). This should be clearly identified as such and [email protected]. revision concerns volatile organic should not be submitted through SUPPLEMENTARY INFORMATION: compound (VOC) emissions from http://www.regulations.gov or e-mail. Throughout this document, ‘‘we,’’ ‘‘us,’’ polymeric foam manufacturing http://www.regulations.gov is an and ‘‘our’’ refer to EPA. operations. We are approving a local ‘‘anonymous access’’ system, and EPA Table of Contents rule that regulates these emission will not know your identity or contact sources under the Clean Air Act as information unless you provide it in the I. The State’s Submittal amended in 1990 (CAA). body of your comment. If you send e- A. What rule did the State submit? DATES: This rule is effective on October mail directly to EPA, your e-mail B. Are there other versions of this rule? 3, 2011 without further notice, unless address will be automatically captured C. What is the purpose of the submitted EPA receives adverse comments by and included as part of the public rule? September 6, 2011. If we receive such comment. If EPA cannot read your II. EPA’s Evaluation and Action A. How is EPA evaluating the rule? comments, we will publish a timely comment due to technical difficulties B. Does the rule meet the evaluation withdrawal in the Federal Register to and cannot contact you for clarification, criteria? notify the public that this direct final EPA may not be able to consider your C. Public Comment and Final Action rule will not take effect. comment. Electronic files should avoid III. Statutory and Executive Order Reviews

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47075

I. The State’s Submittal effect before November 15, 1990 (see parameters in a federally enforceable section 193 of the CAA). The SCAQMD permit. A. What rule did the State submit? regulates an ozone nonattainment area The currently submitted version, We are approving South Coast Air (see 40 CFR part 81), so Rule 1175 must amended on November 5, 2010, Quality Management District fulfill RACT as well as CAA section contains added language to require that (SCAQMD) Rule 1175, adopted on 110(l) requirements. techniques and parameters related to November 5, 2010, and submitted by the Guidance and policy documents that operation of emission control systems California Air Resources Board (CARB) we use to evaluate enforceability and be incorporated in a federally on April 5, 2011. On May 6, 2011, EPA RACT requirements consistently enforceable permit. Source testing determined that the submittal for Rule include the following: requirements were also added. These 1175 met the completeness criteria in 40 1. ‘‘Issues Relating to VOC Regulation revisions address the previously CFR Part 51 Appendix V, which must be Cutpoints, Deficiencies, and identified deficiencies. Additional rule met before formal EPA review. Deviations,’’ EPA, May 25, 1988 (the revisions address recommendations to B. Are there other versions of this rule? Bluebook). improve the clarity of the rule. We find 2. ‘‘Guidance Document for Correcting We approved an earlier version of that the currently submitted version of Common VOC & Other Rule Rule 1175 fulfills the relevant criteria Rule 1175 into the SIP on August 25, Deficiencies,’’ EPA Region 9, August 21, 1994 (see 59 FR 43751). The SCAQMD summarized earlier. The TSD has more 2001 (the Little Bluebook). information on our evaluation. adopted revisions to the SIP-approved 3. ‘‘Control of VOC Emissions from version on September 7, 2007, and Polystyrene Foam Manufacturing’’ C. Public Comment and Final Action CARB submitted them to us on March (EPA–450/3–90–020, September 1990). 7, 2008. We disapproved this version on As authorized in section 110(k)(3) of May 10, 2010 (see 75 FR 25775). B. Does the rule meet the evaluation the Act, EPA is fully approving the criteria? submitted rule because we believe it C. What is the purpose of the submitted fulfills all relevant requirements. We do rule? We believe this rule is consistent with the relevant policy and guidance not think anyone will object to this VOCs help produce ground-level regarding enforceability, RACT, and approval, so we are finalizing it without ozone and smog, which harm human CAA section 110(l). The SIP revision proposing it in advance. However, in health and the environment. Section would not interfere with the on-going the Proposed Rules section of this 110(a) of the CAA requires States to process for ensuring that requirements Federal Register, we are simultaneously submit regulations that control VOC for reasonable further progress and proposing approval of the same emissions. Rule 1175 was designed to attainment of the National Ambient Air submitted rule. If we receive adverse control VOC emissions from the Quality Standards are met, and the comments by September 6, 2011, we manufacturing, processing, and storage submitted SIP revision is at least as will publish a timely withdrawal in the of polymeric foam products. The rule stringent as the rule previously Federal Register to notify the public essentially prohibits the use of approved into the SIP. that the direct final approval will not chlorofluorocarbons, VOC, and The previous version of Rule 1175, take effect and we will address the methylene chloride in polymeric amended on September 7, 2007, and comments in a subsequent final action cellular foam product operations except submitted to EPA on March 7, 2008, was based on the proposal. If we do not for expandable polystyrene molding and disapproved on May 10, 2010 (75 FR receive timely adverse comments, the extrudable polystyrene foam operations. 25775). As discussed in more detail in direct final approval will be effective Expandable polystyrene molding and EPA’s TSD associated with that action, without further notice on October 3, extrudable polystyrene foam operations EPA disapproved the earlier version 2011. This will incorporate the rule into are required to demonstrate that because it did not contain adequate the federally enforceable SIP. emissions do not exceed 2.4 pounds of provisions to ensure rule enforceability Please note that if EPA receives VOC per 100 pounds of raw materials in the following areas: adverse comment on an amendment, processed, or to install an approved (1) For sources choosing to comply paragraph, or section of this rule and if emission control system. EPA’s with the new option for expanded that provision may be severed from the technical support document (TSD) has polystyrene block molding operations, remainder of the rule, EPA may adopt more information about this rule. the rule needed to require as final those provisions of the rule that II. EPA’s Evaluation and Action demonstration through source testing are not the subject of an adverse that the 93% collection and reduction of comment. A. How is EPA evaluating the rule? emissions is being achieved. III. Statutory and Executive Order Generally, SIP rules must be (2) For sources choosing to comply Reviews enforceable (see section 110(a) of the with the new option for expanded CAA), must require Reasonably polystyrene block molding operations, Under the CAA, the Administrator is Available Control Technology (RACT) the rule needed to clarify and identify required to approve a SIP submission for each category of sources covered by the operational techniques and that complies with the provisions of the a Control Techniques Guidelines (CTG) parameters needed to achieve 93% CAA and applicable Federal regulations. document as well as each major source control, and include those techniques 42 U.S.C. 7410(k); 40 CFR 52.02(a). in nonattainment areas (see sections and parameters in a federally Thus, in reviewing SIP submissions, 182(a)(2) and (b)(2)), must not interfere enforceable permit. EPA’s role is to approve State choices, with any applicable requirement (3) For sources with an emission provided that they meet the criteria of concerning attainment and reasonable control system designed to meet the the CAA. Accordingly, this action further progress or any other applicable 90% collection and 95% destruction merely approves State law as meeting requirement of the CAA (see section requirements, the rule needed to clarify Federal requirements and does not 110(l) of the CAA), and must not and identify the operational techniques impose additional requirements beyond modify, in a nonattainment area, any and parameters needed for compliance those imposed by State law. For that SIP-approved control requirement in and include those techniques and reason, this action:

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47076 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

• Is not a ‘‘significant regulatory cannot take effect until 60 days after it Cellular (Foam) Products,’’ amended action’’ subject to review by the Office is published in the Federal Register. November 5, 2010. of Management and Budget under This action is not a ‘‘major rule’’ as * * * * * Executive Order 12866 (58 FR 51735, defined by 5 U.S.C. 804(2). [FR Doc. 2011–19390 Filed 8–3–11; 8:45 am] October 4, 1993); Under section 307(b)(1) of the CAA, BILLING CODE 6560–50–P • Does not impose an information petitions for judicial review of this collection burden under the provisions action must be filed in the United States of the Paperwork Reduction Act (44 Court of Appeals for the appropriate ENVIRONMENTAL PROTECTION U.S.C. 3501 et seq.); circuit by October 3, 2011. Filing a AGENCY • Is certified as not having a petition for reconsideration by the significant economic impact on a Administrator of this final rule does not 40 CFR Part 52 substantial number of small entities affect the finality of this action for the [EPA–R09–OAR–2011–0429; FRL–9444–3] under the Regulatory Flexibility Act purposes of judicial review nor does it (5 U.S.C. 601 et seq.); extend the time within which a petition Revision to the California State • Does not contain any unfunded for judicial review may be filed, and Implementation Plan, San Joaquin mandate or significantly or uniquely shall not postpone the effectiveness of Valley Unified Air Pollution Control affect small governments, as described such rule or action. Parties with District in the Unfunded Mandates Reform Act objections to this direct final rule are AGENCY: Environmental Protection of 1995 (Pub. L. 104–4); encouraged to file a comment in • Agency (EPA). Does not have Federalism response to the parallel notice of ACTION: Final rule. implications as specified in Executive proposed rulemaking for this action Order 13132 (64 FR 43255, August 10, published in the Proposed Rules section SUMMARY: EPA is finalizing approval of 1999); of today’s Federal Register, rather than a revision to the San Joaquin Valley • Is not an economically significant file an immediate petition for judicial Unified Air Pollution Control District regulatory action based on health or review of this direct final rule, so that (SJVUAPCD) portion of the California safety risks subject to Executive Order EPA can withdraw this direct final rule State Implementation Plan (SIP). This 13045 (62 FR 19885, April 23, 1997); and address the comment in the revision was proposed in the Federal • Is not a significant regulatory action proposed rulemaking. This action may Register on June 8, 2011 and concerns subject to Executive Order 13211 (66 FR not be challenged later in proceedings to volatile organic compound (VOC) 28355, May 22, 2001); enforce its requirements (see section emissions from brandy and wine aging • Is not subject to requirements of 307(b)(2)). operations. We are approving a local Section 12(d) of the National rule that regulates these emission Technology Transfer and Advancement List of Subjects in 40 CFR Part 52 sources under the Clean Air Act as Act of 1995 (15 U.S.C. 272 note) because Environmental protection, Air amended in 1990 (CAA or the Act). application of those requirements would pollution control, Incorporation by be inconsistent with the CAA; and DATES: Effective Date: This rule is • reference, Intergovernmental relations, effective on September 6, 2011. Does not provide EPA with the Ozone, Reporting and recordkeeping discretionary authority to address ADDRESSES: EPA has established docket requirements, Volatile organic number EPA–R09–OAR–2011–0429 for disproportionate human health or compounds. environmental effects with practical, this action. Generally, documents in the appropriate, and legally permissible Dated: June 21, 2011. docket for this action are available methods under Executive Order 12898 Jared Blumenfeld, electronically at http:// (59 FR 7629, February 16, 1994). Regional Administrator, Region IX. www.regulations.gov or in hard copy at In addition, this rule does not have Part 52, chapter I, title 40 of the Code EPA Region IX, 75 Hawthorne Street, tribal implications as specified by of Federal Regulations is amended as San Francisco, California. While all Executive Order 13175 (65 FR 67249, follows: documents in the docket are listed at November 9, 2000), because the SIP is http://www.regulations.gov, some not approved to apply in Indian country PART 52—[AMENDED] information may be publicly available located in the State, and EPA notes that only at the hard copy location (e.g., it will not impose substantial direct ■ 1. The authority citation for Part 52 copyrighted material, large maps, multi- costs on tribal governments or preempt continues to read as follows: volume reports), and some may not be available in either location (e.g., tribal law. Authority: 42 U.S.C. 7401 et seq. The Congressional Review Act, 5 confidential business information U.S.C. 801 et seq., as added by the Small Subpart F—California (CBI)). To inspect the hard copy Business Regulatory Enforcement materials, please schedule an Fairness Act of 1996, generally provides ■ 2. Section 52.220, is amended by appointment during normal business FOR that before a rule may take effect, the adding paragraph (c)(388)(i)(A)(3) to hours with the contact listed in the agency promulgating the rule must read as follows: FURTHER INFORMATION CONTACT section. submit a rule report, which includes a FOR FURTHER INFORMATION CONTACT: copy of the rule, to each House of the § 52.220 Identification of plan. Christine Vineyard, EPA Region IX, Congress and to the Comptroller General * * * * * (415) 947–947–41225, of the United States. EPA will submit a (c) * * * [email protected]. report containing this action and other (388) * * * SUPPLEMENTARY INFORMATION: required information to the U.S. Senate, (i) * * * Throughout this document, ‘‘we,’’ ‘‘us’’ the U.S. House of Representatives, and and ‘‘our’’ refer to EPA. the Comptroller General of the United (A) * * * States prior to publication of the rule in (3) Rule 1175, ‘‘Control of Emissions Table of Contents the Federal Register. A major rule from the Manufacture of Polymeric I. Proposed Action

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47077

II. Public Comments and EPA Responses I. Proposed Action III. EPA Action On June 8, 2011 (76 FR 33181), EPA IV. Statutory and Executive Order Reviews proposed to approve the following rule into the California SIP.

Local agency Rule No. Rule title Adopted Submitted

SJVUAPCD ...... 4695 Brandy Aging and Wine Aging Operations ...... 09/17/09 05/17/10

We proposed to approve this rule • Does not have Federalism appropriate circuit by October 3, 2011. because we determined that it complied implications as specified in Executive Filing a petition for reconsideration by with the relevant CAA requirements. Order 13132 (64 FR 43255, August 10, the Administrator of this final rule does Our proposed action contains more 1999); not affect the finality of this action for information on the rule and our • Is not an economically significant the purposes of judicial review nor does evaluation. regulatory action based on health or it extend the time within which a safety risks subject to Executive Order petition for judicial review may be filed, II. Public Comments and EPA 13045 (62 FR 19885, April 23, 1997); Responses • and shall not postpone the effectiveness Is not a significant regulatory action of such rule or action. This action may EPA’s proposed action provided a subject to Executive Order 13211 (66 FR not be challenged later in proceedings to 30-day public comment period. During 28355, May 22, 2001); enforce its requirements (see section this period, we received no comments. • Is not subject to requirements of Section 12(d) of the National 307(b)(2)). III. EPA Action Technology Transfer and Advancement List of Subjects in 40 CFR Part 52 No comments were submitted that Act of 1995 (15 U.S.C. 272 note) because change our assessment that the application of those requirements would Environmental protection, Air submitted rule complies with the be inconsistent with the Clean Air Act; pollution control, Incorporation by relevant CAA requirements. Therefore, and reference, Intergovernmental relations, as authorized in section 110(k)(3) of the • Does not provide EPA with the Ozone, Reporting and recordkeeping Act, EPA is fully approving this rule discretionary authority to address requirements, Volatile organic into the California SIP. disproportionate human health or compounds. environmental effects with practical, IV. Statutory and Executive Order Dated: July 18, 2011. appropriate, and legally permissible Reviews methods under Executive Order 12898 Jared Blumenfeld, Under the Clean Air Act, the (59 FR 7629, February 16, 1994). Regional Administrator, Region IX. Administrator is required to approve a In addition, this rule does not have Part 52, Chapter I, Title 40 of the Code SIP submission that complies with the Tribal implications as specified by provisions of the Act and applicable of Federal Regulations is amended as Executive Order 13175 (65 FR 67249, follows: Federal regulations. 42 U.S.C. 7410(k); November 9, 2000), because the SIP is 40 CFR 52.02(a). Thus, in reviewing SIP not approved to apply in Indian country PART 52—[AMENDED] submissions, EPA’s role is to approve located in the State, and EPA notes that State choices, provided that they meet it will not impose substantial direct ■ 1. The authority citation for Part 52 the criteria of the Clean Air Act. costs on Tribal governments or preempt continues to read as follows: Accordingly, this action merely Tribal law. approves State law as meeting Federal The Congressional Review Act, 5 Authority: 42 U.S.C. 7401 et seq. requirements and does not impose U.S.C. 801 et seq., as added by the Small additional requirements beyond those Business Regulatory Enforcement Subpart F—California imposed by State law. For that reason, Fairness Act of 1996, generally provides this action: that before a rule may take effect, the ■ 2. Section 52.220 is amended by • Is not a ‘‘significant regulatory agency promulgating the rule must adding paragraph (c)(379)(i)(C)(2) to action’’ subject to review by the Office submit a rule report, which includes a read as follows: of Management and Budget under copy of the rule, to each House of the Executive Order 12866 (58 FR 51735, Congress and to the Comptroller General § 52.220 Identification of plan. October 4, 1993); of the United States. EPA will submit a * * * * * • Does not impose an information report containing this action and other (c) * * * collection burden under the provisions required information to the U.S. Senate, of the Paperwork Reduction Act (44 the U.S. House of Representatives, and (379) * * * U.S.C. 3501 et seq.); the Comptroller General of the United (i) * * * • Is certified as not having a States prior to publication of the rule in (C) * * * significant economic impact on a the Federal Register. A major rule (2) Rule 4695, ‘‘Brandy Aging and substantial number of small entities cannot take effect until 60 days after it under the Regulatory Flexibility Act is published in the Federal Register. Wine Aging Operations’’ adopted on (5 U.S.C. 601 et seq.); This action is not a ‘‘major rule’’ as September 17, 2010. • Does not contain any unfunded defined by 5 U.S.C. 804(2). * * * * * mandate or significantly or uniquely Under section 307(b)(1) of the Clean [FR Doc. 2011–19384 Filed 8–3–11; 8:45 am] affect small governments, as described Air Act, petitions for judicial review of BILLING CODE 6560–60–P in the Unfunded Mandates Reform Act this action must be filed in the United of 1995 (Pub. L. 104–4); States Court of Appeals for the

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00023 Fmt 4700 Sfmt 9990 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47078 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

DEPARTMENT OF TRANSPORTATION Washington, DC 20590–0001 for access regulation involves information and to the docket. disclosure requirements and limits the National Highway Traffic Safety FOR FURTHER INFORMATION CONTACT: For extent of modifications that may be Administration technical issues: Ms. Gayle Dalrymple, made. NHTSA Office of Crash Avoidance Under the regulation, a motor vehicle 49 CFR Part 595 Standards, NVS–123, telephone (202– repair business that modifies a vehicle 366–5559), fax (202–493–2739). to enable a person with a disability to [Docket No. NHTSA–2011–0108] For legal issues: Mr. Jesse Chang, operate or ride as a passenger in the motor vehicle and that avails itself of RIN 2127–AK22 NHTSA Office of Chief Counsel, NCC– 112, telephone (202–366–2992), fax the exemption provided by 49 CFR part Make Inoperative Exemptions; Vehicle (202–366–3820). 595 subpart C must register itself with Modifications To Accommodate People The mailing address for these officials NHTSA. The modifier is exempted from With Disabilities, Head Restraints is: National Highway Traffic Safety the make inoperative provision of the Administration, 1200 New Jersey Safety Act, but only to the extent that AGENCY: National Highway Traffic Avenue, SE., Washington, DC 20590. the modifications affect the vehicle’s Safety Administration (NHTSA), compliance with the FMVSSs specified SUPPLEMENTARY INFORMATION: This final Department of Transportation (DOT). in 49 CFR 595.7(c) and only to the rule amends one of the ‘‘make extent specified in § 595.7(c). ACTION: Final rule. inoperative exemptions’’ found in 49 Modifications that would take the CFR part 595. Specifically, this final SUMMARY: This final rule updates and vehicle out of compliance with any rule amends Subpart C, ‘‘Vehicle expands an existing exemption from other FMVSS, or with an FMVSS listed Modifications To Accommodate People certain requirements of our head in § 595.7(c) but in a manner not With Disabilities,’’ to update and restraints standard that is available in specified in that paragraph are not expand a reference in an exemption the context of vehicle modifications to exempted by the regulation. The relating to our head restraints standard, accommodate people with disabilities. modifier must affix a permanent label to Federal Motor Vehicle Safety Standard The rule facilitates the mobility of the vehicle identifying itself as the (FMVSS) No. 202. The notice of drivers and passengers with disabilities modifier and the vehicle as no longer proposed rulemaking (NPRM), on which by updating the exemption to include complying with all FMVSS in effect at this final rule is based, was published the corresponding portions of a new, original manufacture, and must provide in the Federal Register (74 FR 67156) on upgraded version of the standard, the and retain a document listing the December 18, 2009 (Docket No. right front passenger seating position, FMVSSs with which the vehicle no NHTSA–2009–0065). and an exemption for persons with longer complies and indicating any limited ability to support their head. Regulatory Background reduction in the load carrying capacity DATES: Effective Date: October 3, 2011. The National Traffic and Motor of the vehicle of more than 100 Petitions for Reconsideration: Vehicle Safety Act (49 U.S.C. Chapter kilograms (220 pounds). Petitions for reconsideration of this final 301) (‘‘Safety Act’’) and NHTSA’s Upgraded Head Restraint Standard and rule must be received by the agency by regulations require vehicle the Exemption in Part 595 Subpart C September 19, 2011. manufacturers to certify that their Before today’s final rule, 49 CFR part ADDRESSES: If you wish to petition for vehicles comply with all applicable 595 subpart C allowed two exemptions reconsideration of this rule, you should Federal motor vehicle safety standards from FMVSS No. 202. Under 49 CFR refer in your petition to the docket (see 49 U.S.C. 30112; 49 CFR part 567). 595.7(c)(8), modifiers were exempted number of this document and submit A vehicle manufacturer, distributor, from the entirety of FMVSS No. 202 in your petition to: Administrator, dealer, or repair business generally may any situation where the driver or the National Highway Traffic Safety not knowingly make inoperative any front right passenger is seated in a Administration, 1200 New Jersey part of a device or element of design wheelchair and no seat is supplied with Avenue, SE., West Building, installed in or on a motor vehicle in the vehicle. Under 49 CFR 595.7(c)(9), Washington, DC 20590. The petition compliance with an applicable FMVSS modifiers were only exempted from the will be placed in the docket. Anyone is (see 49 U.S.C. 30122). NHTSA has the driver seat (and not passenger seat) head able to search the electronic form of all authority to issue regulations that restraint height and width requirements documents received into any of our exempt regulated entities from the found in paragraphs S4.3(b)(1)–(2) in dockets by the name of the individual ‘‘make inoperative’’ provision (49 U.S.C. order to accommodate rearward submitting the comment (or signing the 30122(c)). The agency has used that visibility for drivers who cannot easily comment, if submitted on behalf of an authority to promulgate 49 CFR part 595 turn their head due to a disability. association, business, labor union, etc.). subpart C, ‘‘Vehicle Modifications to However, in 2004, this agency You may review DOT’s complete Accommodate People with Disabilities.’’ published a final rule that made two Privacy Act Statement in the Federal 49 CFR part 595 subpart C sets forth changes to our head restraints standard Register published on April 11, 2000 exemptions from the make inoperative which affect the make inoperative (Volume 65, Number 70; Pages 19477– provision to permit, under limited exemptions in § 595.7(c)(8)–(9). The 78). circumstances, vehicle modifications 2004 final rule established an upgraded For access to the docket to read that take the vehicles out of compliance head restraints standard, designated background documents or comments with certain FMVSSs when the vehicles FMVSS No. 202a, to eventually replace received, go to http:// are modified to be used by persons with FMVSS No. 202, while allowing a www.regulations.gov and follow the disabilities after the first retail sale of several year period during which online instructions for accessing the the vehicle for purposes other than manufacturers could comply with either docket. You may also visit DOT’s resale. The regulation was promulgated standard.1 Additionally, the 2004 final Docket Management Facility, 1200 New to facilitate the modification of motor Jersey Avenue, SE., West Building vehicles so that persons with disabilities 1 69 FR 74848. We note that the upgraded Ground Floor, Room W12–140, can drive or ride in them. The standard was subsequently amended. FMVSS No.

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47079

rule made certain changes to FMVSS 1995, 7,121 wheelchair users were in order to accommodate accessibility No. 202 itself, which included killed or injured due to any of the devices such as Bruno’s TAS system. redesignating paragraphs S4.3(b)(1)–(2) following reasons: (1) Improper or no In regards to the first issue, we (the height and width requirements) as securement, (2) lift malfunction, (3) proposed to extend the exemption for paragraphs S4.2(b)(1)–(2). transferring to or from a motor vehicle, the entirety of FMVSS No. 202, in Thus, before today’s final rule, the (4) falling on or off the ramp, or (5) a situations where the driver or the front make inoperative exemption in collision between the wheelchair and a right passenger is seated in a wheelchair § 595.7(c)(8)–(9) did not provide for an motor vehicle.3 According to Bruno’s and no seat is supplied with the vehicle, exemption to the head restraint petition, the TAS will help prevent 74% to also cover the entirety of FMVSS No. requirements for vehicles manufactured of those injuries—which includes all 202a under 49 CFR 595.7(c)(8).4 and certified under FMVSS No. 202a. injuries except those occurring when a Additionally, we proposed to exempt Further, § 595.7(c)(9) did not correctly wheelchair is struck by a motor vehicle. driver head restraints from the height refer to the re-designated height and Bruno contends that this is possible and width requirements in S4.3 (for width requirements of FMVSS No. 202. because the TAS will provide vehicles manufactured before March 14, wheelchair users an easy and safe way 2005 5) and S4.2 (for vehicles Petition for Rulemaking to enter and exit these vehicles. manufactured after March 14, 2005) On January 2, 2007 our agency Bruno indicated in its petition that under 49 CFR Part 595.7(c)(9) in order received a petition for rulemaking from the TAS currently complies with to reflect the re-designation of S4.3 as Bruno Independent Living Aids, Inc. FMVSS No. 202. However, the clearance S4.2 in FMVSS No. 202.6 Finally, we (Bruno) requesting that we amend Part between the top of the head restraint proposed to extend the exemption for 595 to account for FMVSS No. 202a, and the door opening can restrict the the height and width requirements in including adding an exemption for number of viable vehicle applications. FMVSS No. 202 for the driver head passengers’ side head restraint systems. Bruno also stated that the increased restraint to cover the equivalent In submitting its petition, Bruno wished head restraint height required by the provisions of FMVSS No. 202a. to facilitate use of its product, called new FMVSS No. 202a will significantly In making these proposals, our agency Turning Automotive Seating (TAS), reduce the number of available vehicle sought to preserve the original which provides access to motor vehicles applications. exemptions to FMVSS No. 202. The to people with disabilities. Bruno’s To facilitate the installation of the agency recognized in the NPRM that, description of its TAS system in the TAS on vehicles, Bruno requested that after the 2004 final rule, modifiers may petition is summarized below: the make inoperative exemptions of 49 seek to apply the exemptions in • The device consists of a rotating, CFR part 595 (for persons not riding in § 595.7(c)(8)–(9) to vehicles certified motorized seat, which replaces the OEM a wheelchair) be expanded and updated under either FMVSS No. 202 or the seat in a motor vehicle. to cover both driver and passenger side upgraded FMVSS No. 202a (depending • The TAS pivots from the forward- head restraints. Further, Bruno on the date of vehicle manufacture). facing driving position to the side-facing requested that the make inoperative Thus, the agency sought to extend the entry position and extends outward and provisions that provide exemptions to exemptions that applied to FMVSS No. lowers to a suitable transfer height, portions of FMVSS No. 202 be extended 202 to the equivalent portions of providing the driver and/or passenger to cover the equivalent portions of FMVSS No. 202a and correct the easy entry into the vehicle. FMVSS No. 202a. Additionally, it reference to S4.3 (which had been re- • The transfer into the seat takes requested that the exemptions in Part designated as S4.2 by the 2004 final place while outside the vehicle, and the 595 be expanded to cover several rule). occupant remains in the seat during the aspects of FMVSS No. 202a that are not In regards to the second issue, we entry process, using OEM seat belts currently provided for in FMVSS No. proposed to extend the exemption from while traveling in the vehicle. Exiting 202. Specifically, Bruno requested more the height requirements (but not the the vehicle is accomplished by reversing broadly that Part 595 be updated to width requirements) of FMVSS No. 202a the process. include an exemption for 49 CFR to cover the front passenger seat head Bruno also described another TAS 571.202a S4.2.1 through S4.2.7. These restraint.7 We recognized in the NPRM option that has a mobility base. This paragraphs encompass requirements on that this extension may create some system converts the automotive seat into minimum height, width, backsets, gaps, additional degradation of whiplash a wheelchair, eliminating the need for energy absorption, height retention, protection beyond the current transferring from the seat altogether. backset retention, displacement, and exemptions. However, the agency Bruno states that TAS systems provide strength. Finally, Bruno also noted the tentatively concluded that the benefits mobility-impaired persons with safer error where § 595.7(c)(9) mistakenly of safer ingress and egress for persons and easier ways to enter and exit a refers to S4.3 of FMVSS No. 202, instead with mobility needs would outweigh vehicle. of S4.2. the potential drawbacks. In spite of this In its petition, Bruno states that the Notice of Proposed Rulemaking tentative conclusion, the agency sought TAS provides substantial safety to propose the narrowest appropriate benefits. As a basis for this claim, Bruno On December 18, 2009, NHTSA exemption in order to appropriately cites a NHTSA research report published in the Federal Register (74 balance the mobility needs of people published in 1997.2 In this note, the FR 67156) an NPRM to amend Part 595. who must have vehicle modifications to agency stated that between 1991 and The agency proposed the exemptions described in the following paragraphs in 4 74 FR 67156. 202a is titled Head restraints; Mandatory order to address two different issues: (1) 5 March 14, 2005 was the effective date of the applicability begins on September 1, 2009. FMVSS Amending § 595.7(c)(8)–(9) to reflect the 2004 final rule. We proposed to include the No. 202 is titled Head restraints; Applicable at the changes to FMVSS No. 202 resulting reference to S4.3 for vehicles manufactured before manufacturers option until September 1, 2009. from the 2004 final rule, and (2) the March 14, 2005 because those vehicles would have 2 Wheelchair Users Injuries and Deaths been certified to FMVSS No. 202 as written before Associated with Motor Vehicle related Incidents, requested expansion of the exemptions it was amended by the 2004 final rule. September 1997, available at http:// 6 74 FR 67156. www.nhtsa.dot.gov. 3 Id., Table 2. 7 Id.

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47080 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

accommodate a disability with the restraint in order to provide head be made inoperative because the vehicle safety benefits of FMVSSs No. 202 and support. seat—along with the head restraint—has 202a. been completely removed. The agency The Final Rule Since the exemption sought by the believes that this issue continues with petitioner seemed for the purpose of Based on consideration of the FMVSS No. 202a which requires more ensuring that the head restraint on the available information, including Bruno’s stringent requirements for head TAS seat cleared the door frame to petition and comment, this agency restraints. For these reasons, the agency provide easy access, we tentatively decided to issue this final rule adopting expands the coverage of the exemption concluded that the aforementioned the exemptions as proposed by the in § 595.7(c)(8) to include FMVSS No. exemption only to the height NPRM and also further expanding the 202a through today’s final rule. requirements of FMVSSs No. 202 and exemptions to enable modification or replacement of the head restraint of the Updating and Extending the Height and 202a would be appropriate. Specifically, Width Exemptions in § 595.7(c)(9) we were not aware of any rationale that front passenger seat of a vehicle in order would support extending the to support or position the passenger’s Today’s final rule also adopts the exemptions to include the width head or neck to accommodate a proposals in the NPRM to update and requirement for the front passenger head disability. expand the exemptions from the height restraint or any of the other additional Specifically, this final rule amends and width requirements for head exemptions requested by Bruno.8 § 595.7(c)(8)–(9) to: (1) Expand the restraints in FMVSSs No. 202 and 202a. However, we requested comment in the exemption from all head restraint As discussed in the NPRM, the original NPRM in regards to whether the requirements in situations where a exemption in § 595.7(c)(9) was additional exemptions requested by wheelchair is used in place of a vehicle established in order to accommodate Bruno would be relevant to facilitating seat, (2) correctly refer to the re- drivers with a limited range of motion the mobility needs of persons with designated S4.2 in FMVSS No. 202, (3) turning their heads. The agency disabilities. extend the height and width exemptions reasoned that this accommodation was from the driver head restraint necessary in order to facilitate the Comment requirements in FMVSS No. 202 to ability of these drivers to look The agency received one comment on include FMVSS No. 202a, and (4) backwards when conducting lane the 2009 NPRM. This comment was extend the height exemption for the change or backing maneuvers. As there submitted by Bruno. Bruno stated that a driver head restraint to cover the is a continuing need to accommodate more expansive exemption is required passenger head restraint in FMVSS drivers in this manner, we adopt the in order to accommodate the functions 202a. Further, this final rule also proposal in the NPRM to extend the of a type of TAS system called the extends the exemption to cover S4.2.1 height and width exemptions from Carony Transportation System (Carony). through S4.2.7 of FMVSS No. 202a (and FMVSS No. 202 to cover the equivalent In its comment, Bruno described the the corresponding provisions of FMVSS provision for FMVSS No. 202a. Carony system as a TAS seat that has No. 202) in order to accommodate the However, we decline to extend the the ability to detach from the vehicle neck positioning needs of persons with exemption to cover the width and convert into a wheelchair. Intended disabilities. requirements of FMVSS No. 202a for the to function as a typical wheelchair The agency remains concerned about front passenger seat as Bruno requested outside of the vehicle, the seat portion the potential for degradation in head in its petition and comments to the of the wheelchair detaches from the and neck whiplash protection and the NPRM. As the agency desires to grant wheelbase and can reattach to the TAS negative effect that an exemption may the narrowest exemption possible to balance both the needs of persons with carriage and be repositioned into the have on the safety benefits afforded to disabilities and the safety concerns, we vehicle. Bruno contends that this type of disabled persons who require decline to extend the width exemption seating device can be used to facilitate modifications to their vehicles. to the front passenger because front the positioning needs of the person with However, we are unaware at this time of passengers are not required to look a disability (such as high level any other reasonable alternatives that backwards in the same manner as quadriplegia, cerebral palsy, or can appropriately balance the mobility drivers. In the NPRM, this agency hydrocephalus) through the inclusion of needs of people who must have vehicle requested comment on whether or not positioning belts, posture vests, body modifications to accommodate a there exists any other reason to expand supports, lumbar supports, and disability with the head restraint the width exemption to the front specialized head positioning devices requirements of FMVSS No. 202 and passenger seat. Since this agency did devised by therapists. FMVSS No. 202a. not receive any comments that provided In subsequent conversations with a Updating § 595.7(c)(8) To Include a rationale for extending the width NHTSA staff member, Bruno further FMVSS No. 202a requirement exemption to the front clarified that it is seeking the additional Today’s final rule adopts the proposal passenger seat, this final rule adopts the exemptions from FMVSS No. 202a in in the NPRM to update § 595.7(c)(8) to proposal from the NPRM which does order to accommodate the needs of include an exemption for the entirety of not extend the width exemption from persons that have limited or no muscle FMVSS No. 202 and FMVSS No. 202a FMVSS No. 202a to cover the front tone in the neck and do not have the 9 in situations where a person with a passenger seat. ability to support the head. Bruno disability requires the use of a However, the advent of new products asserts that such needs generally arise wheelchair in place of a vehicle seat in such as the TAS system by Bruno for persons who use the Carony system order to drive or ride in a motor vehicle. prompted this agency to tentatively and that their needs can require the As stated in the NPRM, the original conclude in the NPRM that an extension complete replacement of the head purpose of this exemption was to enable of the exemption from the height wheelchair users to make modifications requirement of FMVSS No. 202a to 8 The NPRM did not propose to include exemptions for paragraphs S4.2.1(a) and S4.2.3 to the motor vehicle so as to use the cover the front passenger seat is through S4.2.7. wheelchair in place of the vehicle seat. necessary to accommodate persons who 9 See Docket No. NHTSA–2009–0065–0003. In this situation, FMVSS No. 202 would require a chair such as the TAS system

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47081

in order to ride in a motor vehicle. Users After explaining that the agency was and the Department of Transportation’s of the TAS system and similar systems not aware of any rationale that would regulatory policies and procedures. This require an exemption to the height support Bruno’s request for additional rulemaking document was not reviewed requirement in FMVSS No. 202a exemptions, the NPRM requested by the Office of Management and because a compliant head restraint may comment on whether any of the Budget under E.O. 12866, ‘‘Regulatory be too tall and can prevent the seat additional exemptions requested by Planning and Review.’’ It is not portion of the TAS system from clearing Bruno would be relevant in facilitating considered to be significant under E.O. the A-pillar of a motor vehicle. Since mobility for persons with disabilities. In 12866 or the Department’s Regulatory users of these systems may be drivers or its comments, Bruno stated that it offers Policies and Procedures (44 FR 11034; passengers in a motor vehicle, this a type of TAS system seat called the February 26, 1979). NHTSA has exemption is required for the front Carony which functions as a ‘‘typical determined that the effects are minor passenger seat as well as the driver seat. wheelchair outside the vehicle’’ and and that a regulatory evaluation is not As we stated in the NPRM, such seating unlatches from the wheeled base in needed to support the subject systems allow persons with disabilities order to be transferred into the motor rulemaking. Today’s final rule imposes to enter the vehicle in a sitting position, vehicle. Bruno further stated in its no costs on the vehicle modification without the need to perform the comments (and clarified through its industry. If there is any effect, it will be sometimes dangerous act of ascending subsequent conversations) that this a cost savings due to the exemptions. or descending into the vehicle. Since system facilitates special positioning Regulatory Flexibility Act this exemption may degrade the needs for their clients with high level whiplash protection afforded to users of quadriplegia, cerebral palsy, or Pursuant to the Regulatory Flexibility the TAS system and other similar hydrocephalus and can require Act (5 U.S.C. 601 et seq., as amended by systems, we adopt in today’s final rule specialized alterations or replacement the Small Business Regulatory the proposal in the NPRM which head restraints as medically necessary. Enforcement Fairness Act (SBREFA) of extends only the exemption from the Based on this information, we believe 1996), whenever an agency is required height requirements of FMVSS No. 202a that the additional exemptions to S4.2.1 to publish a notice of proposed to the front passenger seat. through S4.2.7 requested by Bruno are rulemaking or final rule, it must prepare necessary in order to accommodate the and make available for public comment Updating § 595.7(c)(9) To Correctly mobility needs of these individuals a regulatory flexibility analysis that Refer to S4.2 in FMVSS No. 202 because these modifications to the head describes the effect of the rule on small entities (i.e., small businesses, small Today’s final rule also adopts the restraint can involve replacing the entire head restraint unit. In addition, NHTSA organizations, and small governmental proposal in the NPRM to update jurisdictions). No regulatory flexibility § 595.7(c)(9) to refer to S4.2 in FMVSS anticipates that similar exemptions will be required for persons seeking to analysis is required if the head of an No. 202. As discussed in the NPRM, the agency certifies the rule will not have a agency found that § 595.7(c)(9) did not accommodate similar medical needs for vehicles certified under FMVSS No. significant economic impact on a reflect the 2004 final rule’s re- substantial number of small entities. 202. Thus, in addition to paragraphs designation of the height and width SBREFA amended the Regulatory S4.2.1 through S4.2.7 of FMVSS No. requirements for the head restraints in Flexibility Act to require Federal 202a, this final rule adds exemption FMVSS No. 202 from S4.3 to S4.2. As agencies to provide a statement of the from the entirety of paragraph S4.2 (or there is a continuing need to exempt factual basis for certifying that a rule paragraph S4.3 for vehicles driver seats from the height and width will not have a significant economic manufactured before March 14, 2005) of requirements of FMVSS No. 202 for the impact on a substantial number of small FMVSS No. 202 in situations in which reasons discussed in previous entities. the head restraint must be removed or paragraphs, today’s final rule updates NHTSA has considered the effects of modified to position or support a § 595.7(c)(9) to correctly refer to S4.2 this final rule under the Regulatory passenger’s head or neck due to a instead of S4.3. However, for vehicles Flexibility Act. Many dealerships and disability. However, in order to ensure manufactured before the effective date repair businesses would be considered that this exemption does not cover of the 2004 final rule (March 14, 2005), small entities, and some of these situations beyond the mobility needs of § 595.7(c)(9) will continue to refer to businesses modify vehicles to these individuals, this final rule S4.3. accommodate individuals with establishes these exemptions for the disabilities. I certify that this final rule Expanding the Exemption To Account front passenger seat only and only for does not have a significant economic for Persons Who Require Head situations where the head restraint must impact on a substantial number of small Positioning Devices be modified or replaced in order to entities. While many dealers and repair support or position the passenger’s head In the NPRM, the agency businesses are considered small entities, or neck due to a disability. contemplated denying Bruno’s request this exemption does not impose any As this final rule relieves the for exemptions from S4.2.1 through new requirements, but instead provides regulatory burdens on certain entities, S4.2.7 of FMVSS No. 202a beyond the additional flexibility. Therefore, the the agency believes that an effective aforementioned exemptions, but sought impacts on any small businesses date 60 days after publication in the public comment on this issue. Today’s affected by this rulemaking would not Federal Register is appropriate. final rule grants these exemptions (and be substantial. their equivalent exemptions in FMVSS Rulemaking Analyses and Notices No. 202) for the limited circumstance in Executive Order 13132 (Federalism) which the head restraint of the front Executive Order 12866, Executive Order NHTSA has examined today’s final passenger seat must be modified or 13563, and DOT Regulatory Policies and rule pursuant to Executive Order 13132 completely replaced in order to position Procedures (64 FR 43255; Aug. 10, 1999) and or support the head of a person with NHTSA has considered the impact of concluded that no additional limited or no ability to support his or this rulemaking action under Executive consultation with States, local her head due to a disability. Order 12866, Executive Order 13563, governments, or their representatives is

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47082 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

mandated beyond the rulemaking established by an FMVSS are minimum today’s final rule is discussed above. process. The agency has concluded that standards, a State common law tort NHTSA notes further that there is no the final rule does not have sufficient cause of action that seeks to impose a requirement that individuals submit a federalism implications to warrant higher standard on motor vehicle petition for reconsideration or pursue consultation with State and local manufacturers will generally not be other administrative proceeding before officials or the preparation of a preempted. However, if and when such they may file suit in court. federalism summary impact statement. a conflict does exist—for example, when National Technology Transfer and The final rule does not have the standard at issue is both a minimum ‘‘substantial direct effects on the States, and a maximum standard—the State Advancement Act on the relationship between the national common law tort cause of action is Under the National Technology government and the States, or on the impliedly preempted. See Geier v. Transfer and Advancement Act of 1995 distribution of power and American Honda Motor Co., 529 U.S. (NTTAA) (Pub. L. 104–113), ‘‘all Federal responsibilities among the various 861 (2000). agencies and departments shall use levels of government.’’ Today’s final Pursuant to Executive Order 13132, technical standards that are developed rule does not impose any additional NHTSA has considered whether this or adopted by voluntary consensus requirements. Instead, it lessens rule could or should preempt State standards bodies, using such technical burdens on the exempted entities. common law causes of action. The standards as a means to carry out policy NHTSA rules can have preemptive agency’s ability to announce its objectives or activities determined by effect in two ways. First, the National conclusion regarding the preemptive the agencies and departments.’’ Traffic and Motor Vehicle Safety Act effect of one of its rules reduces the Voluntary consensus standards are contains an express preemption likelihood that preemption will be an technical standards (e.g., materials provision: issue in any subsequent tort litigation. specifications, test methods, sampling When a motor vehicle safety standard is in To this end, the agency has examined procedures, and business practices) that effect under this chapter, a State or a political the nature (e.g., the language and are developed or adopted by voluntary subdivision of a State may prescribe or structure of the regulatory text) and consensus standards bodies, such as the continue in effect a standard applicable to objectives of today’s rule and finds that Society of Automotive Engineers (SAE). the same aspect of performance of a motor this rule merely increases flexibility for The NTTAA directs us to provide vehicle or motor vehicle equipment only if certain exempted entities. As such, Congress, through OMB, explanations the standard is identical to the standard NHTSA does not intend that this rule prescribed under this chapter. when we decide not to use available and preempt state tort law that would applicable voluntary consensus 49 U.S.C. 30103(b)(1). It is this statutory effectively impose a higher standard on standards. No voluntary standards exist command by Congress that preempts motor vehicle manufacturers than that regarding this exemption for any non-identical State legislative and established by today’s rule. modification of vehicles to administrative law address the same Establishment of a higher standard by accommodate persons with disabilities. aspect of performance. However, this means of State tort law would not provision is not relevant to this final conflict with the exemption announced Unfunded Mandates Reform Act rule as this rule does not involve the here. Without any conflict, there could The Unfunded Mandates Reform Act establishing, amending or revoking of a not be any implied preemption of a of 1995 requires agencies to prepare a Federal motor vehicle safety standard. State common law tort cause of action. written assessment of the costs, benefits The express preemption provision Further, we are unaware of any State and other effects of proposed or final described above is subject to a savings law or action that would prohibit the rules that include a Federal mandate clause under which ‘‘[c]ompliance with actions that this final rule would permit. likely to result in the expenditure by a motor vehicle safety standard Civil Justice Reform State, local or tribal governments, in the prescribed under this chapter does not aggregate, or by the private sector, of exempt a person from liability at When promulgating a regulation, more than $100 million annually common law.’’ 49 U.S.C. 30103(e) agencies are required under Executive (adjusted for inflation with base year of Pursuant to this provision, State Order 12988 to make every reasonable 1995). This exemption will not result in common law tort causes of action effort to ensure that the regulation, as expenditures by State, local or tribal against motor vehicle manufacturers appropriate: (1) Specifies in clear governments, in the aggregate, or by the that might otherwise be preempted by language the preemptive effect; (2) private sector in excess of $100 million the express preemption provision are specifies in clear language the effect on annually. generally preserved. However, the existing Federal law or regulation, Supreme Court has recognized the including all provisions repealed, National Environmental Policy Act possibility, in some instances, of circumscribed, displaced, impaired, or NHTSA has analyzed today’s final implied preemption of State common modified; (3) provides a clear legal rule for the purposes of the National law tort causes of action by virtue of standard for affected conduct rather Environmental Policy Act. The agency NHTSA’s rules—even if not expressly than a general standard, while has determined that implementation of preempted. promoting simplification and burden today’s final rule will not have any This second way that NHTSA rules reduction; (4) specifies in clear language significant impact on the quality of the can preempt is dependent upon the the retroactive effect; (5) specifies human environment. existence of an actual conflict between whether administrative proceedings are an FMVSS and the higher standard that to be required before parties may file Paperwork Reduction Act would effectively be imposed on motor suit in court; (6) explicitly or implicitly Under the Paperwork Reduction Act vehicle manufacturers if someone defines key terms; and (7) addresses of 1995 (PRA), a person is not required obtained a State common law tort other important issues affecting clarity to respond to a collection of information judgment against the manufacturer— and general draftsmanship of by a Federal agency unless the notwithstanding the manufacturer’s regulations. collection displays a valid OMB control compliance with the NHTSA standard. Pursuant to this Order, NHTSA notes number. Today’s final rule does not Because most NHTSA standards as follows. The preemptive effect of contain new reporting requirements or

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47083

requests for information beyond what is wheelchair and no other seat is supplied DEPARTMENT OF COMMERCE already required by 49 CFR Part 595 with the vehicle for the driver; Subpart C. (ii) A motor vehicle is modified to National Oceanic and Atmospheric Administration Plain Language transport a right front passenger seated in a wheelchair and no other right front Executive Order 12866 requires each passenger seat is supplied with the 50 CFR Part 679 agency to write all rules in plain vehicle; or language. Application of the principles [Docket No. 101126521–0640–2] (9)(i) For vehicles manufactured of plain language includes consideration RIN 0648–XA616 of the following questions: before March 14, 2005, S4.3(b)(1) and • Have we organized the material to (2) of 49 CFR 571.202, in any case in Fisheries of the Exclusive Economic suit the public’s needs? which the driver’s head restraint must Zone Off Alaska; Pacific Cod for • Are the requirements in the rule be modified to accommodate a driver American Fisheries Act Catcher/ clearly stated? with a disability. Processors Using Trawl Gear in the • Does the rule contain technical (ii) For vehicles manufactured on or Bering Sea and Aleutian Islands language or jargon that isn’t clear? • after March 14, 2005 and certified to Management Area Would a different format (grouping FMVSS No. 202, S4.2(b)(1) and (2) of 49 and order of sections, use of headings, CFR 571.202, in any case in which the AGENCY: National Marine Fisheries paragraphing) make the rule easier to head restraint must be modified to Service (NMFS), National Oceanic and understand? accommodate a driver with a disability. Atmospheric Administration (NOAA), • Would more (but shorter) sections Commerce. (iii) For vehicles manufactured on or be better? ACTION: Temporary rule; closure. • Could we improve clarity by adding after March 14, 2005 and certified to tables, lists, or diagrams? FMVSS No. 202a, S4.2.1(b) of 49 CFR SUMMARY: NMFS is prohibiting directed • What else could we do to make the 571.202a, in any case in which the head fishing for Pacific cod by American rule easier to understand? restraint must be modified to Fisheries Act (AFA) trawl catcher/ If you have any responses to these accommodate a driver or a front processors in the Bering Sea and questions, please notify the agency in outboard passenger with a disability. Aleutian Islands management area writing. (iv) For vehicles manufactured on or (BSAI). This action is necessary to Regulation Identifier Number (RIN) after March 14, 2005 and certified to prevent exceeding the 2011 Pacific cod FMVSS No. 202a, S4.2.2 of 49 CFR total allowable catch (TAC) specified for The Department of Transportation 571.202a, in any case in which the head AFA trawl catcher-processors in the assigns a regulation identifier number restraint must be modified to BSAI. (RIN) to each regulatory action listed in accommodate a driver with a disability. the Unified Agenda of Federal DATES: Effective 1200 hrs, Alaska local Regulations. The Regulatory Information (v) For vehicles manufactured before time (A.l.t.), August 1, 2011, through Service Center publishes the Unified March 14, 2005 and certified to FMVSS 2400 hrs, A.l.t., December 31, 2011. Agenda in April and October of each No. 202, S4.3 of 49 CFR 571.202, in any FOR FURTHER INFORMATION CONTACT: Josh year. You may use the RIN contained in case in which the head restraint of the Keaton, 907–586–7228. front passenger seat of a vehicle must be the heading at the beginning of this SUPPLEMENTARY INFORMATION: NMFS modified or replaced by a device to document to find this action in the manages the groundfish fishery in the support or position the passenger’s head Unified Agenda. BSAI exclusive economic zone or neck due to a disability. List of Subjects in 49 CFR Part 595 according to the Fishery Management (vi) For vehicles manufactured on or Plan for Groundfish of the Bering Sea Motor vehicle safety, Motor vehicles. after March 14, 2005 and certified to and Aleutian Islands Management Area In consideration of the foregoing, we FMVSS No. 202, S4.2 of 49 CFR (FMP) prepared by the North Pacific amend 49 CFR part 595 to read as 571.202, in any case in which the head Fishery Management Council under follows: restraint of the front passenger seat of a authority of the Magnuson-Stevens vehicle must be modified or replaced by Fishery Conservation and Management PART 595—MAKE INOPERATIVE a device to support or position the Act. Regulations governing fishing by EXEMPTIONS passenger’s head or neck due to a U.S. vessels in accordance with the FMP ■ 1. The authority citation for part 595 disability. appear at subpart H of 50 CFR part 600 continues to read as follows: (vii) For vehicles manufactured on or and 50 CFR part 679. after March 14, 2005 and certified to The 2011 Pacific cod TAC allocated to Authority: 49 U.S.C. 322, 30111, 30115, 30117, 30122 and 30166; delegation of FMVSS No. 202a, S4.2.1, S4.2.2, S4.2.3, AFA trawl catcher/processors in the authority at 49 CFR 1.50. S4.2.4, S4.2.5, S4.2.6, and S4.2.7 of 49 BSAI is 4,682 metric tons (mt) as CFR 571.202a, in any case in which the established by the final 2011 and 2012 ■ 2. Amend § 595.7 by revising head restraint of the front passenger seat harvest specifications for groundfish in paragraphs (c)(8) and (c)(9) to read as of a vehicle must be modified or the BSAI (76 FR 11139, March 1, 2011). follows: replaced by a device to support or In accordance with § 679.20(d)(1)(i) § 595.7 Requirements for vehicle position the passenger’s head or neck and (d)(1)(ii)(B), the Administrator, modifications to accommodate people with due to a disability. Alaska Region, NMFS (Regional disabilities. * * * * * Administrator), has determined that the 2011 Pacific cod TAC allocated to AFA * * * * * Issued on: July 29, 2011. (c) * * * trawl catcher/processors in the BSAI (8) 49 CFR 571.202 and 571.202a, in David L. Strickland, will soon be reached. Therefore, the any case in which: Administrator. Regional Administrator is establishing a (i) A motor vehicle is modified to be [FR Doc. 2011–19802 Filed 8–3–11; 8:45 am] directed fishing allowance of 4,440 mt, operated by a driver seated in a BILLING CODE 4910–59–P and is setting aside the remaining 242

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47084 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

mt as bycatch to support other (AA), finds good cause to waive the The AA also finds good cause to anticipated groundfish fisheries. In requirement to provide prior notice and waive the 30-day delay in the effective accordance with § 679.20(d)(1)(iii), the opportunity for public comment date of this action under 5 U.S.C. Regional Administrator finds that this pursuant to the authority set forth at 5 553(d)(3). This finding is based upon directed fishing allowance has been U.S.C. 553(b)(B) as such requirement is the reasons provided above for waiver of reached. Consequently, NMFS is impracticable and contrary to the public prior notice and opportunity for public prohibiting directed fishing for Pacific interest. This requirement is comment. cod by AFA trawl catcher/processors in impracticable and contrary to the public This action is required by § 679.20 the BSAI. interest as it would prevent NMFS from and is exempt from review under After the effective date of this closure responding to the most recent fisheries Executive Order 12866. the maximum retainable amounts at § 679.20(e) and (f) apply at any time data in a timely fashion and would Authority: 16 U.S.C. 1801 et seq. during a trip. delay the closure of Pacific cod by AFA trawl catcher/processors in the BSAI. Dated: August 1, 2011. Classification NMFS was unable to publish a notice Emily H. Menashes, This action responds to the best providing time for public comment Acting Director, Office of Sustainable available information recently obtained because the most recent, relevant data Fisheries, National Marine Fisheries Service. from the fishery. The Assistant only became available as of July 29, [FR Doc. 2011–19797 Filed 8–1–11; 4:15 pm] Administrator for Fisheries, NOAA, 2011. BILLING CODE 3510–22–P

VerDate Mar<15>2010 15:19 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00030 Fmt 4700 Sfmt 9990 E:\FR\FM\04AUR1.SGM 04AUR1 rmajette on DSK89S0YB1PROD with RULES 47085

Proposed Rules Federal Register Vol. 76, No. 150

Thursday, August 4, 2011

This section of the FEDERAL REGISTER materials related to the proposed rule wishes to continue to market the device contains notices to the public of the proposed and proposed draft guidance document will need to submit a PMA within 90 issuance of rules and regulations. The can be found at http:// days of the effective date of the final purpose of these notices is to give interested www.regulations.gov by searching on rule. Please see section XII of this persons an opportunity to participate in the Docket ID NRC–2009–0079 for the document for the effective date of any rule making prior to the adoption of the final rules. proposed rule and Docket ID NRC– final rule that may publish based on this 2011–0080 for the proposed draft proposal. guidance document. ADDRESSES: You may submit comments, NUCLEAR REGULATORY Dated at Rockville, Maryland, this 29th day identified by [Docket No. FDA–2011–N– COMMISSION of July 2011. 0526], by any of the following methods: For the Nuclear Regulatory Commission. 10 CFR Part 40 Cindy Bladey, Electronic Submissions [NRC–2009–0079 and NRC–2011–0080] Chief, Rules, Announcements and Directives Submit electronic comments in the Branch, Division of Administrative Services, RIN 3150–AI50 following way: Office of Administration. • Federal eRulemaking Portal: http:// Domestic Licensing of Source [FR Doc. 2011–19726 Filed 8–3–11; 8:45 am] www.regulations.gov. Follow the Material—Amendments/Integrated BILLING CODE 7590–01–P instructions for submitting comments. Safety Analysis; Correction Written Submissions AGENCY: Nuclear Regulatory DEPARTMENT OF HEALTH AND Submit written submissions in the Commission. HUMAN SERVICES ACTION: Extension of public comment following ways: period and public meeting; correction. Food and Drug Administration • Fax: 301–827–6870. • SUMMARY: Mail/Hand delivery/Courier (for The U.S. Nuclear Regulatory 21 CFR Part 870 Commission (NRC) is correcting a notice paper, disk, or CD–ROM submissions): appearing in the Federal Register on [Docket No. FDA–2011–N–0526] Division of Dockets Management (HFA– July 27, 2011 (76 FR 44865), that 305), Food and Drug Administration, extended the public comment period Effective Date of Requirement for 5630 Fishers Lane, Rm. 1061, Rockville, and provided a date for a public meeting Premarket Approval for a Pacemaker MD 20852. for the proposed rule, ‘‘Domestic Programmer Instructions: All submissions received must include the agency name and Licensing of Source Material— AGENCY: Food and Drug Administration, Amendments/Integrated Safety HHS. Docket Number and Regulatory Information Number (RIN) (if a RIN Analysis.’’ This action is necessary to ACTION: Proposed rule. correct the date of the public meeting in number has been assigned) for this the DATES section, and to correct the SUMMARY: The Food and Drug rulemaking. All comments received may Docket ID information for accessing Administration (FDA) is proposing to be posted without change to http:// publicly available documents related to require the filing of a premarket www.regulations.gov, including any the proposed rule and draft guidance approval application (PMA) or a notice personal information provided. For document in the ADDRESSES section. of completion of a product development additional information on submitting FOR FURTHER INFORMATION CONTACT: protocol (PDP) for the class III comments, see the Comments heading Cindy Bladey, Chief, Rules, preamendments device pacemaker of the SUPPLEMENTARY INFORMATION Announcements and Directives Branch, programmers. The agency is also section of this document. Office of Administration, U.S. Nuclear summarizing its proposed findings Docket: For access to the docket to Regulatory Commission, Washington, regarding the degree of risk of illness or read background documents or DC 20555–0001; telephone: 301–492– injury designed to be eliminated or comments received, go to http:// 3667 or e-mail: [email protected]. reduced by requiring this device to meet www.regulations.gov and insert the SUPPLEMENTARY INFORMATION: On page the statute’s approval requirements and docket number(s), found in brackets in 44865 of Federal Register document the benefits to the public from the use the heading of this document, into the 2011–14060, published July 27, 2011 of the devices. In addition, FDA is Search box and follow the prompts and/ (76 FR 44865), in the third column, announcing the opportunity for or go to the Division of Dockets under the section titled DATES, second interested persons to request that the Management, 5630 Fishers Lane, Rm. paragraph, ‘‘August 7, 2011’’ is agency change the classification of the 1061, Rockville, MD 20852. aforementioned device based on new corrected to read ‘‘August 17, 2011.’’ FOR FURTHER INFORMATION CONTACT: information. This action implements Also, on page 44866 of the same Elias Mallis, Food and Drug certain statutory requirements. document, in the first column, the last Administration, Center for Devices and bulleted item before the section titled DATES: Submit either electronic or Radiological Health, 10903 New FOR FURTHER INFORMATION CONTACT is written comments by November 2, 2011. Hampshire Ave., Bldg. 66, Rm. 1538, removed and the following bulleted Submit requests for a change in Silver Spring, MD 20993, 301–796– item is added in its place: classification by August 19, 2011. FDA 6216. • Federal Rulemaking Web site: intends that, if a final rule based on this Public comments and supporting proposed rule is issued, anyone who SUPPLEMENTARY INFORMATION:

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47086 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

I. Background—Regulatory Authorities without submission of a PMA until FDA together with the reasons for such The Federal Food, Drug, and Cosmetic issues a final regulation under section termination. If FDA terminates the Act (the FD&C Act), as amended by the 515(b) of the FD&C Act (21 U.S.C. proceeding, FDA is required to initiate Medical Device Amendments of 1976 360e(b)) requiring premarket approval. reclassification of the device under (the 1976 amendments) (Pub. L. 94– Section 515(b)(1) of the FD&C Act (21 section 513(e) of the FD&C Act, unless 295), the Safe Medical Devices Act of U.S.C. 360e(b)(1)) establishes the the reason for termination is that the 1990 (the SMDA) (Pub. L. 101–629), and requirement that a preamendments device is a banned device under section the Food and Drug Administration device that FDA has classified into class 516 of the FD&C Act (21 U.S.C. 360f). If a proposed rule to require Modernization Act of 1997 (FDAMA) III is subject to premarket approval. A premarket approval for a (Pub. L. 105–115), the Medical Device preamendments class III device may be commercially distributed without an preamendments device is finalized, User Fee and Modernization Act of 2002 approved PMA or a notice of section 501(f)(2)(B) of the FD&C Act (21 (Pub. L. 107–250), the Medical Devices completion of a PDP until 90 days after U.S.C. 351(f)(2)(B)) requires that a PMA Technical Corrections Act (Pub. L. 108– FDA issues a final rule requiring or notice of completion of a PDP for any 214), and the Food and Drug premarket approval for the device, or 30 such device be filed within 90 days of Administration Amendments Act of months after final classification of the the date of issuance of the final rule or 2007 (Pub. L. 110–85), establish a device under section 513 of the FD&C 30 months after the final classification comprehensive system for the regulation Act, whichever is later. Also, a of the device under section 513 of the of medical devices intended for human preamendments device subject to the FD&C Act, whichever is later. If a PMA use. Section 513 of the FD&C Act (21 rulemaking procedure under section or notice of completion of a PDP is not U.S.C. 360c) established three categories 515(b) of the FD&C Act is not required filed by the later of the two dates, (classes) of devices, reflecting the to have an approved investigational commercial distribution of the device is regulatory controls needed to provide device exemption (IDE) (see 21 CFR part required to cease since the device would reasonable assurance of their safety and 812) contemporaneous with its be deemed adulterated under section effectiveness. The three categories of interstate distribution until the date 501(f) of the FD&C Act. devices are class I (general controls), identified by FDA in the final rule The device may, however, be class II (special controls), and class III requiring the submission of a PMA for distributed for investigational use if the (premarket approval). the device. At that time, an IDE is manufacturer, importer, or other Under section 513 of the FD&C Act, required only if a PMA has not been sponsor of the device complies with the devices that were in commercial submitted or a PDP completed. IDE regulations. If a PMA or notice of distribution before the enactment of the Section 515(b)(2)(A) of the FD&C Act completion of a PDP is not filed by the 1976 amendments, May 28, 1976 provides that a proceeding to issue a later of the two dates, and the device (generally referred to as preamendments final rule to require premarket approval does not comply with IDE regulations, devices), are classified after FDA has: (1) shall be initiated by publication of a the device is deemed to be adulterated Received a recommendation from a notice of proposed rulemaking within the meaning of section device classification panel (an FDA containing: (1) The regulation; (2) 501(f)(1)(A) of the FD&C Act, and advisory committee); (2) published the proposed findings with respect to the subject to seizure and condemnation panel’s recommendation for comment, degree of risk of illness or injury under section 304 of the FD&C Act (21 along with a proposed regulation designed to be eliminated or reduced by U.S.C. 334) if its distribution continues. classifying the device; and (3) published requiring the device to have an Shipment of devices in interstate a final regulation classifying the device. approved PMA or a declared completed commerce will be subject to injunction FDA has classified most PDP and the benefit to the public from under section 302 of the FD&C Act (21 preamendments devices under these the use of the device; (3) an opportunity U.S.C. 332), and the individuals procedures. for the submission of comments on the responsible for such shipment will be Devices that were not in commercial proposed rule and the proposed subject to prosecution under section 303 distribution prior to May 28, 1976 findings; and (4) an opportunity to of the FD&C Act (21 U.S.C. 333). In the (generally referred to as request a change in the classification of past, FDA has requested that postamendments devices) are the device based on new information manufacturers take action to prevent the automatically classified by section relevant to the classification of the further use of devices for which no PMA 513(f) of the FD&C Act into class III device. or PDP has been filed and may without any FDA rulemaking process. Section 515(b)(2)(B) of the FD&C Act determine that such a request is Those devices remain in class III and provides that if FDA receives a request appropriate for the class III devices that require premarket approval unless, and for a change in the classification of the are the subjects of this regulation. until, the device is reclassified into class device within 15 days of the publication The FD&C Act does not permit an I or II or FDA issues an order finding the of the notice, FDA shall, within 60 days extension of the 90-day period after device to be substantially equivalent, in of the publication of the notice, consult issuance of a final rule within which an accordance with section 513(i) of the with the appropriate FDA advisory application or a notice is required to be FD&C Act, to a predicate device that committee and publish a notice denying filed. The House Report on the 1976 does not require premarket approval. the request for change in reclassification amendments states that:‘‘[t]he thirty The agency determines whether new or announcing its intent to initiate a month grace period afforded after devices are substantially equivalent to proceeding to reclassify the device classification of a device into class III predicate devices by means of under section 513(e) of the FD&C Act. * * * is sufficient time for premarket notification procedures in Section 515(b)(3) of the FD&C Act manufacturers and importers to develop section 510(k) of the FD&C Act (21 provides that FDA shall, after the close the data and conduct the investigations U.S.C. 360(k)) and 21 CFR part 807. of the comment period on the proposed necessary to support an application for A preamendments device that has rule and consideration of any comments premarket approval (H. Rept. 94–853, been classified into class III may be received, issue a final rule to require 94th Cong., 2d sess. 42 (1976)).’’ marketed by means of premarket premarket approval or publish a The SMDA added section 515(i) to the notification procedures (510(k) process) document terminating the proceeding FD&C Act requiring FDA to review the

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47087

classification of preamendments class III which a PMA or notice of completion of because the panel also recommended devices for which no final rule requiring a PDP is not filed by that date, or for that pacemakers be classified into class the submission of PMAs has been which PMA approval has been denied III. The panel believed that premarket issued, and to determine whether or not or withdrawn. approval was necessary to assure the each device should be reclassified into If a PMA or notice of completion of safety and effectiveness of pacemakers, class I or class II or remain in class III. a PDP for a class III device is not filed which are life-supporting devices, and For devices remaining in class III, the with FDA within 90 days after the date that the same level of control was SMDA directed FDA to develop a of issuance of any final rule requiring necessary for both devices because schedule for issuing regulations to premarket approval for the device, pacemaker programmers must be require premarket approval. The SMDA commercial distribution of the device designed to operate with a specific does not, however, prevent FDA from must cease. The device may be pacemaker as a system. The panel proceeding immediately to rulemaking distributed for investigational use only believed that general controls alone under section 515(b) of the FD&C Act on if the requirements of the IDE would not provide sufficient control specific devices, in the interest of public regulations are met. The requirements over the performance characteristics of health, independent of the procedures for significant risk devices include this device, that a performance standard of section 515(i). Proceeding directly to submitting an IDE application to FDA would not provide reasonable assurance rulemaking under section 515(b) of the for its review and approval. An of the safety and effectiveness of the FD&C Act is consistent with Congress’ approved IDE is required to be in effect device, and, moreover, that there are objective in enacting section 515(i), i.e., before an investigation of the device insufficient data to establish a standard that preamendments class III devices for may be initiated or continued under 21 to provide such assurance. which PMAs have not been previously CFR 812.30. FDA, therefore, cautions Consequently, the panel believed that required either be reclassified to class I that IDE applications should be premarket approval was necessary to or class II or be subject to the submitted to FDA at least 30 days before assure the safety and effectiveness of the requirements of premarket approval. the end of the 90-day period after the device. FDA continues to agree with the Moreover, in this proposal, interested issuance of the final rule to avoid panel’s recommendation. persons are being offered the interrupting investigations. opportunity to request reclassification of C. Risks to Health any of the devices. III. Proposed Findings With Respect to 1. Cardiac arrhythmias or electrical Risks and Benefits shock: Excessive electrical leakage II. Dates New Requirements Apply As required by section 515(b) of the current can disturb the normal In accordance with section 515(b) of FD&C Act, FDA is publishing its electrophysiology of the heart, leading the FD&C Act, FDA is proposing to proposed findings regarding: (1) The to the onset of cardiac arrhythmias. require that a PMA or a notice of degree of risk of illness or injury 2. Improper pacemaker operation: completion of a PDP be filed with the designed to be eliminated or reduced by Inadequate design of the device’s agency for class III devices within 90 requiring that this device have an programming function can cause the days after issuance of any final rule approved PMA or a declared completed pacemaker to lose its sensing or pacing based on this proposal. An applicant PDP, and (2) the benefits to the public ability, or to pace at an improper rate. whose device was legally in commercial from the use of the device. 3. Misdiagnosis: Inadequate design of distribution before May 28, 1976, or These findings are based on the the device’s ability to sense pacemaker whose device has been found to be reports and recommendations of the function can lead to the generation of substantially equivalent to such a advisory committee (panel) for the inaccurate diagnostic data. If inaccurate device, will be permitted to continue classification of this device along with diagnostic data are used in managing marketing such class III devices during information submitted in response to the patient, the physician may prescribe FDA’s review of the PMA or notice of the 515(i) Order (74 FR 16214, April 9, a course of treatment that places the completion of the PDP. FDA intends to 2009), and any additional information patient at risk unnecessarily. review any PMA for the device within 4. Inability to change pacing therapy: that FDA has encountered. Additional 180 days, and any notice of completion Inadequate matching of the programmer information regarding the risks as well of a PDP for the device within 90 days to the pacemaker could lead to a as classification associated with this of the date of filing. FDA cautions that situation where the pacemaker could device type can be found in the under section 515(d)(1)(B)(i) of the not be programmed, thereby preventing following proposed and final rules and FD&C Act, the agency may not enter a needed change in pacing therapy and notices published in the Federal into an agreement to extend the review placing the patient at risk unnecessarily. period for a PMA beyond 180 days Register: 44 FR 13382, March 9, 1979; unless the agency finds that ‘‘the 45 FR 7907–7971, February 5, 1980; and V. PMA Requirements continued availability of the device is 52 FR 17736, May 11, 1987. A PMA for this device must include necessary for the public health.’’ IV. Device Subject to This Proposal— the information required by section FDA intends that under 21 CFR Pacemaker Programmers (21 CFR 515(c)(1) of the FD&C Act. Such a PMA 812.2(d), the preamble to any final rule 870.3700) should also include a detailed based on this proposal will state that, as discussion of the risks identified of the date on which the filing of a PMA A. Identification previously, as well as a discussion of or a notice of completion of a PDP is A pacemaker programmer is a device the effectiveness of the device for which required to be filed, the exemptions used to change noninvasively one or premarket approval is sought. In from the requirements of the IDE more of the electrical operating addition, a PMA must include all data regulations for preamendments class III characteristics of a pacemaker. and information on: (1) Any risks devices in 21 CFR 812.2(c)(1) and (c)(2) known, or that should be reasonably will cease to apply to any device that is: B. Summary of Data known, to the applicant that have not (1) Not legally on the market on or The Cardiovascular Device been identified in this document; (2) the before that date, or (2) legally on the Classification Panel recommended that effectiveness of the device that is the market on or before that date but for this device be classified as class III subject of the application; and (3) full

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47088 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

reports of all preclinical and clinical the form of a reclassification petition little or no interest in marketing these information from investigations on the containing the information required by devices in the future. Therefore, the safety and effectiveness of the device for § 860.123, including new information agency proposes to certify that the which premarket approval is sought. relevant to the classification of the proposed rule, if issued as a final rule, A PMA must include valid scientific device. would not have a significant economic evidence to demonstrate reasonable The agency advises that to ensure impact on a substantial number of small assurance of the safety and effectiveness timely filing of any such petition, any entities. We specifically request detailed of the device for its intended use (see 21 request should be submitted to the comment regarding the appropriateness CFR 860.7(c)(2)). Valid scientific Division of Dockets Management (see of our assumptions regarding the evidence is ‘‘evidence from well- ADDRESSES) and not to the address potential economic impact of this controlled investigations, partially provided in § 860.123(b)(1). If a timely controlled studies, studies and objective request for a change in the classification proposed rule. trials without matched controls, well- of these devices is submitted, the agency Section 202(a) of the Unfunded documented case histories conducted by will, within 60 days after receipt of the Mandates Reform Act of 1995 requires qualified experts, and reports of petition, and after consultation with the that agencies prepare a written significant human experience with a appropriate FDA resources, publish an statement, which includes an marketed device, from which it can order in the Federal Register that either assessment of anticipated costs and fairly and responsibly be concluded by denies the request or gives notice of its benefits, before proposing ‘‘any rule that qualified experts that there is reasonable intent to initiate a change in the includes any Federal mandate that may assurance of the safety and effectiveness classification of the device in result in the expenditure by State, local of a device under its conditions of use. accordance with section 513(e) of the and tribal governments, in the aggregate, * * * Isolated case reports, random FD&C Act and 21 CFR 860.130 of the or by the private sector, of $100,000,000 experience, reports lacking sufficient regulations. or more (adjusted annually for inflation) details to permit scientific evaluation, VIII. Environmental Impact in any one year.’’ The current threshold and unsubstantiated opinions are not after adjustment for inflation is $136 regarded as valid scientific evidence to The agency has determined under 21 show safety or effectiveness.’’ (21 CFR CFR 25.30(h) that this action is of a type million, using the most current (2010) 860.7(c)(2)) that does not individually or Implicit Price Deflator for the Gross cumulatively have a significant effect on Domestic Product. FDA does not expect VI. PDP Requirements the human environment. Therefore, this proposed rule to result in any 1- A PDP for this device may be neither an environmental assessment year expenditure that would meet or submitted in lieu of a PMA, and must nor an environmental impact statement exceed this amount. follow the procedures outlined in is required. FDA proposes to certify that this section 515(f) of the FD&C Act. A PDP IX. Analysis of Impacts proposed rule, if issued as a final rule, must provide: (1) A description of the FDA has examined the impacts of the would not have a significant economic device, (2) preclinical trial information impact. We base this determination on (if any), (3) clinical trial information (if proposed rule under Executive Order an analysis of registration and listing any), (4) a description of the 12866 and the Regulatory Flexibility Act and other data for the device. There manufacturing and processing of the (5 U.S.C. 601–612), and the Unfunded have been no 510(k) submissions for device, (5) the labeling of the device, Mandates Reform Act of 1995 (Pub. L. and (6) all other relevant information 104–4). Executive Order 12866 directs pacemaker programmers since 1995 about the device. In addition, the PDP agencies to assess all costs and benefits with the exception of one 510(k) must include progress reports and of available regulatory alternatives and, submission cleared in 2009 for a Pacing records of the trials conducted under when regulation is necessary, to select System Analyzer cleared for use with a the protocol on the safety and regulatory approaches that maximize PMA approved programmer. This effectiveness of the device for which the net benefits (including potential device was inappropriately reviewed as completed PDP is sought. economic, environmental, public health a 510(k) submission, because this device and safety, and other advantages; should have been regulated under PMA. VII. Opportunity To Request a Change distributive impacts; and equity). The Programmers currently marketed are in Classification agency believes that this proposed rule capable of programming all implantable Before requiring the filing of a PMA is not a significant regulatory action as cardiac devices including pacemakers or notice of completion of a PDP for a defined by the Executive order. and defibrillators. Because these device, FDA is required by section The Regulatory Flexibility Act programmers interact with products 515(b)(2)(A)(i) through (b)(2)(A)(iv) of requires agencies to analyze regulatory covered under several class III product the FD&C Act and 21 CFR 860.132 to options that would minimize any codes including adaptive rate provide an opportunity for interested significant impact of a rule on small pacemakers (LWP); implantable entities. There has been only one 510(k) persons to request a change in the defibrillators (LWS); cardiac submission assigned to this product classification of the device based on resynchronization pacemakers (CRT–P, new information relevant to the code within the past 15 years. Upon NKE) and implantable defibrillators classification. Any proceeding to review of this record, the agency (CRT–D, NIK) they have been entirely reclassify the device will be under the determined that this was done in error, reviewed within the PMA program for authority of section 513(e) of the FD&C which has been corrected. Accordingly, Act. since it has been determined that all of more than a decade. A request for a change in the the affected devices have fallen into This information is summarized in classification of this device is to be in disuse; FDA has concluded that there is table 1 below as follows:

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47089

TABLE 1—SUMMARY OF ELECTRONIC REGISTRATION AND LISTING INFORMATION

Replaced Device name Product code 510(k) or Last listed Last marketed by approved PMA? technology?

Pacemaker Programmer ...... KRG 510(k) 2011 1990s Yes

Based on our review of electronic XIII. Comments Dated: July 29, 2011. product registration and listing and Nancy K. Stade, Interested persons may submit to the other data, FDA concludes that there is Deputy Director for Policy, Center for Devices Division of Dockets Management (see currently little or no interest in and Radiological Health. marketing the affected devices and that ADDRESSES) either electronic or written comments regarding this document. It is [FR Doc. 2011–19733 Filed 8–3–11; 8:45 am] the proposed rule would not have a BILLING CODE P significant economic impact. We only necessary to send one set of specifically request detailed comment comments. It is no longer necessary to send two copies of mailed comments. regarding the appropriateness of our DEPARTMENT OF THE INTERIOR assumptions regarding the potential Identify comments with the docket economic impact of this proposed rule. number found in brackets in the heading of this document. Received National Indian Gaming Commission X. Federalism comments may be seen in the Division 25 CFR Chapter III FDA has analyzed this proposed rule of Dockets Management between 9 a.m. in accordance with the principles set and 4 p.m., Monday through Friday. Regulatory Review Schedule; forth in Executive Order 13132. FDA List of Subjects in 21 CFR Part 870 Cancellation of Consultation Meetings has determined that the proposed rule, if finalized, would not contain policies Medical devices. AGENCY: National Indian Gaming that would have substantial direct Therefore, under the Federal Food, Commission. effects on the States, on the relationship Drug, and Cosmetic Act and under ACTION: Notice. between the National Government and authority delegated to the Commissioner the States, or on the distribution of of Food and Drugs, it is proposed that SUMMARY: On November 18, 2010, the power and responsibilities among the 21 CFR part 870 be amended as follows: National Indian Gaming Commission various levels of government. (NIGC) issued a Notice of Inquiry and Accordingly, the agency tentatively PART 870—CARDIOVASCULAR Notice of Consultation advising the concludes that the proposed rule does DEVICES public that the NIGC was conducting a not contain policies that have comprehensive review of its regulations federalism implications as defined in 1. The authority citation for 21 CFR and requesting public comment on the the Executive order and, consequently, part 870 continues to read as follows: process for conducting the regulatory a federalism summary impact statement Authority: 21 U.S.C. 351, 360, 360c, 360e, review. On April 4, 2011, after holding is not required. 360j, 371. eight consultations and reviewing all comments, NIGC published a Notice of XI. Paperwork Reduction Act of 1995 2. Section 870.3700 is amended by Regulatory Review Schedule setting out revising paragraphs (a) and (c) to read as This proposed rule refers to a consultation schedule and process for follows: previously approved collections of review. The purpose of this document is information found in FDA regulations. § 870.3700 Pacemaker programmers. to cancel four scheduled tribal These collections of information are consultations. (a) Identification. A pacemaker subject to review by the Office of programmer is a device used to DATES: See SUPPLEMENTARY INFORMATION Management and Budget (OMB) under noninvasively change one or more of the below for dates and locations of the Paperwork Reduction Act of 1995 electrical operating characteristics of a cancelled consultations. (44 U.S.C. 3501–3520). The collections pacemaker. FOR FURTHER INFORMATION CONTACT: Lael of information in 21 CFR part 812 have Echo-Hawk, National Indian Gaming been approved under OMB Control No. (b) * * * Commission, 1441 L Street NW., Suite 0910–0078; the collections of (c) Date PMA or notice of completion 9100 Washington, DC 20005. information in 21 CFR part 807 subpart of PDP is required. A PMA or notice of Telephone: 202–632–7003; e-mail: E have been approved under OMB completion of a PDP is required to be [email protected]. Control No. 0910–0120; the collections filed with the Food and Drug of information in 21 CFR 814 subpart B Administration on or before November SUPPLEMENTARY INFORMATION: On have been approved under OMB Control 2, 2011, for any pacemaker programmer November 18, 2010, the National Indian No. 0910–0231; and the collections of that was in commercial distribution Gaming Commission (NIGC) issued a information under 21 CFR 801 have before May 28, 1976, or that has, on or Notice of Inquiry and Notice of been approved under OMB Control No. before November 2, 2011, been found to Consultation advising the public that it 0910–0485. be substantially equivalent to any was conducting a review of its pacemaker programmer that was in regulations promulgated to implement XII. Proposed Effective Date commercial distribution before May 28, 25 U.S.C. 2701–2721 of the Indian FDA is proposing that any final rule 1976. Any other pacemaker programmer Gaming Regulatory Act (IGRA) and based on this proposal become effective shall have an approved PMA or requesting public comment on the on the date of its publication in the declared completed PDP in effect before process for conducting the regulatory Federal Register or at a later date if being placed in commercial review. On April 4, 2011, after holding stated in the final rule. distribution. eight consultations and reviewing all

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47090 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

comments, NIGC published a Notice of The Commission’s regulatory review public that the following tribal Regulatory Review Schedule in the process establishes a tribal consultation consultations have been cancelled. Federal Register setting out schedule with a description of the consultation schedules and review regulation groups to be covered at each processes. (76 FR 18457, April 4, 2011). consultation. This document advises the

Regulation Consultation date Event Location group(s)

August 25–26, 2011 ...... NIGC Consultation—Southwest ...... Wild Horse Resort Casino, Scottsdale, 1, 2, 3, 4, 5 AZ. September 19–20, 2011 ...... NIGC Regional Training ...... Sky Ute Casino Resort Ignacio, CO ...... 3, 4, 5 September 27–28, 2011 ...... NIGC Consultation—Northeast ...... Turning Stone Casino, NY ...... 3, 5 November 7–12, 2011 ...... USET Annual Meeting ...... Mississippi Choctaw, MS ...... 3, 4, 5

For additional information on DATES: Written comments must be name and other contact information in consultation locations and times, please received on or before September 6, the body of your comment and with any refer to the Web site of the National 2011. disk or CD–ROM you submit. If EPA Indian Gaming Commission, http:// ADDRESSES: Submit your comments, cannot read your comment due to www.nigc.gov. identified by Docket ID Number EPA– technical difficulties and cannot contact Dated: August 1, 2011, Washington, DC. R03–OAR–2011–0623 by one of the you for clarification, EPA may not be able to consider your comment. Tracie L. Stevens, following methods: 1. http://www.regulations.gov. Follow Electronic files should avoid the use of Chairwoman. special characters, any form of Steffani A. Cochran, the on-line instructions for submitting comments. encryption, and be free of any defects or Vice-Chairwoman. 2. E-mail: [email protected]. viruses. Daniel J. Little, 3. Mail: EPA–R03–OAR–2011–0623, Docket: All documents in the Associate Commissioner. Ms. Kathleen Cox, Associate Director, electronic docket are listed in the [FR Doc. 2011–19808 Filed 8–3–11; 8:45 am] Office of Permits and Air Toxics, http://www.regulations.gov index. BILLING CODE P 3AP10, U.S. Environmental Protection Although listed in the index, some Agency, Region III, 1650 Arch Street, information is not publicly available, Philadelphia, Pennsylvania 19103. i.e., CBI or other information whose 4. Hand Delivery: At the previously- disclosure is restricted by statute. ENVIRONMENTAL PROTECTION listed EPA Region III address. Such Certain other material, such as AGENCY deliveries are only accepted during the copyrighted material, is not placed on Docket’s normal hours of operation, and the Internet and will be publicly 40 CFR Part 52 special arrangements should be made available only in hard copy form. for deliveries of boxed information. Publicly available docket materials are [EPA–R03–OAR–2011–0623; FRL–9448–1] Instructions: Direct your comments to available either electronically in http:// www.regulations.gov or in hard copy Approval and Promulgation of Air Docket ID No. EPA–R03–OAR–2011– 0623. EPA’s policy is that all comments during normal business hours at the Air Quality Implementation Plans; Protection Division, U.S. Environmental Maryland; Preconstruction Permitting received will be included in the public docket without change, and may be Protection Agency, Region III, 1650 Requirements for Electric Generating Arch Street, Philadelphia, Pennsylvania Stations in Maryland made available online at http:// www.regulations.gov, including any 19103. Copies of the State submittal are AGENCY: Environmental Protection personal information provided, unless available at the Maryland Department of Agency (EPA). the comment includes information the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, ACTION: Proposed rule. claimed to be Confidential Business Information (CBI) or other information Maryland 21230. SUMMARY: EPA is proposing to approve whose disclosure is restricted by statute. FOR FURTHER INFORMATION CONTACT: a State Implementation Plan (SIP) Do not submit information that you David Talley at 215–814–2117, or by revision submitted by the Maryland consider to be CBI or otherwise e-mail at [email protected]. Department of the Environment (MDE) protected through http:// SUPPLEMENTARY INFORMATION: on May 13, 2011 and July 15, 2011. This www.regulations.gov or e-mail. The Throughout this document, whenever SIP revision revises and supplements http://www.regulations.gov Web site is ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the preconstruction permitting an ‘‘anonymous access’’ system, which EPA. EPA is proposing approval of this requirements for electric generating means EPA will not know your identity SIP revision because it corrects the stations that are required to receive a or contact information unless you deficiencies in the Maryland SIP and Certificate of Public Convenience and provide it in the body of your comment. eliminates inconsistencies between Necessity (CPCN) from the Maryland If you send an e-mail comment directly State statutory and regulatory Public Service Commission (PSC) before to EPA without going through http:// requirements for preconstruction commencing construction. The SIP www.regulations.gov, your e-mail permitting for electric generating revision also requires electric generating address will be automatically captured stations in Maryland. It will also ensure stations to obtain a preconstruction and included as part of the comment that the SIP is adequate to prevent permit from the MDE when a CPCN is that is placed in the public docket and significant deterioration of air quality in not required under the PSC regulations made available on the Internet. If you areas designated as attainment or and statutes. This action is being taken submit an electronic comment, EPA unclassifiable as required by Sections under the Clean Air Act (CAA). recommends that you include your 110(a) and 161 of the CAA and 40 CFR

VerDate Mar<15>2010 17:12 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47091

51.166, and will ensure that the SIP provision in that they do not preserve III. Proposed Action provides for the attainment and MDE’s permitting authority for electric EPA is proposing to approve the SIP maintenance of the National Ambient generating stations that are not required revision request submitted by MDE on Air Quality Standards (NAAQS). to obtain a CPCN. We are proposing to May 13, 2011 as supplemented on July approve the SIP revision submitted by Table of Contents 15, 2011, regarding the preconstruction MDE on May 13, 2011 to include permitting requirements for electric I. Background updated provisions at COMAR generating stations because it satisfies II. Summary of SIP Revision 26.11.02.09 and .10. the applicable provisions of the CAA III. Proposed Action For the first time, MDE is also and associated Federal regulations. We IV. Statutory and Executive Order Reviews submitting for the approval into its SIP, are soliciting public comments on the I. Background Public Utility Companies Article, 7–205, 7–207, 7–207.1 and 7–208, Annotated issues discussed in this document. On May 13, 2011, MDE submitted a Code of Maryland as well as the PSC These comments will be considered SIP revision request (#11–01) to EPA. regulations at COMAR 20.79.01.01, .02, before taking final action. The MDE is the State agency designated .06 and .07, COMAR 20.79.02.01, .02, IV. Statutory and Executive Order by the Governor of the State of and .03, and COMAR 20.79.03.01 and Reviews Maryland as the official State agency .02. The Public Utility Companies Under the CAA, the Administrator is responsible for implementing the CAA. Article’s provisions and the associated required to approve a SIP submission The Maryland PSC is an agent of the PSC regulations govern more than CAA that complies with the provisions of the State of Maryland and is an requirements and air quality issues. Act and applicable Federal regulations. independent unit in the Executive Therefore, we are proposing to approve Branch of the government of the State of into the SIP only those regulatory and 42 U.S.C. 7410(k); 40 CFR 52.02(a). Maryland. The PSC regulates public statutory provisions that govern the PSC Thus, in reviewing SIP submissions, utilities including generating stations process which are necessary to EPA’s role is to approve state choices, owned by electric companies doing implement CAA requirements, and are provided that they meet the criteria of business in Maryland and is empowered taking no action on those portions of the CAA. Accordingly, this action by the State of Maryland to issue Maryland’s May 13, 2001 submittal merely proposes to approve state law as Certificates of Public Convenience and which are unrelated to requirements of meeting Federal requirements and does Necessity (CPCN) for the construction the CAA The technical support not impose additional requirements and modification of electric generating document (TSD) included in the docket beyond those imposed by state law. For stations. that reason, this proposed action: for this proposed rulemaking action • Section 110(a)(2)(C) of the CAA specifies those provisions of the May 13, Is not a ‘‘significant regulatory requires the State’s SIP to have a 2011 SIP revision request that are being action’’ subject to review by the Office program for regulation of construction proposed for approval into the SIP. The of Management and Budget under and modification of sources. This TSD also specifies those provisions Executive Order 12866 (58 FR 51735, includes the Prevention of Significant October 4, 1993); upon which EPA is taking no action. • Deterioration (PSD) and nonattainment This SIP revision, when approved, Does not impose an information New Source Review (NSR) programs as will correct deficiencies within the collection burden under the provisions required by Parts C and D of Title I of current Maryland SIP and will allow of the Paperwork Reduction Act (44 the CAA to assure that the NAAQS are Maryland’s programs for the permitting U.S.C. 3501 et seq.); protected. Electric generating stations in of electric generating stations to meet • Is certified as not having a Maryland are required to obtain a CPCN the applicable requirements of the CAA significant economic impact on a from the PSC prior to construction or and Federal regulations. substantial number of small entities modification. We are proposing to As previously stated, the May 13, under the Regulatory Flexibility Act approve the May 13, 2011 SIP revision 2011 SIP revision request includes (5 U.S.C. 601 et seq.); that requires electric generating stations (among other requirements) Title 20, • Does not contain any unfunded to obtain a CPCN prior to construction. Subtitle 79, Chapter 01, paragraph .07 mandate or significantly or uniquely This SIP revision also requires that all Waivers and Modifications and Title 20, affect small governments, as described of the air quality provisions that would Subtitle 79, Chapter 02 paragraph .03 in the Unfunded Mandates Reform Act otherwise be incorporated into a permit Proceedings on the Application, of 1995 (Pub. L. 104–4); to construct or an approval issued by specifically subparagraph C. Phased • Does not have Federalism MDE must be contained in a CPCN Proceedings Requests. On July 15, 2011, implications as specified in Executive issued by the PSC. Secretary Robert M. Summers of MDE Order 13132 (64 FR 43255, August 10, submitted a letter to Shawn M. Garvin, 1999); II. Summary of SIP Revision Regional Administrator of EPA Region • Is not an economically significant As provided in Environment Article III to supplement the May 13, 2011 SIP regulatory action based on health or 2, 2–402(3), Annotated Code of revision request. The July 15, 2011 letter safety risks subject to Executive Order Maryland, electric generating stations provides assurances that when the PSC 13045 (62 FR 19885, April 23, 1997); that are not required to obtain a CPCN implements these regulatory provisions, • Is not a significant regulatory action from the PSC for any reason remain MDE, pursuant to its authority under subject to Executive Order 13211 (66 FR subject to MDE’s preconstruction the Public Utility Companies Article, 28355, May 22, 2001); permitting requirements. However, the Subsection 7–208, paragraph (f), will • Is not subject to requirements of current SIP-approved regulations at ensure that no waivers, modifications or Section 12(d) of the National COMAR 26.11.02.09 and .10 exempt all phased applications are issued or Technology Transfer and Advancement electric generating stations constructed accepted by the PSC that do not comply Act of 1995 (15 U.S.C. 272 note) because or modified by electric generating with all applicable requirements of the application of those requirements would companies from MDE’s permitting Federal Clean Air Act and Federal be inconsistent with the CAA; and regulations. These regulations are regulations. We are proposing to make • Does not provide EPA with the inconsistent with the statutory this letter part of the Maryland SIP. discretionary authority to address, as

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47092 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

appropriate, disproportionate human made by New Jersey in accordance with technical difficulties and cannot contact health or environmental effects, using the provisions of its regulation to help you for clarification, EPA may not be practicable and legally permissible meet the national ambient air quality able to consider your comment. methods, under Executive Order 12898 standard for ozone. The intended effect Electronic files should avoid the use of (59 FR 7629, February 16, 1994). of this proposed rule is to approve special characters or any form of In addition, this proposed rule for source-specific emissions limitations encryption, and be free of any defects or clarifying the statutes and regulations in required by the Clean Air Act. viruses. For additional information the Maryland State Implementation Plan DATES: Comments must be received on about EPA’s public docket visit the EPA for the preconstruction permitting or before September 6, 2011. Docket Center homepage at http:// requirements for electric generating ADDRESSES: Submit your comments, www.epa.gov/epahome/dockets.htm. Docket: All documents in the docket stations in Maryland does not have identified by Docket Number EPA–R02– are listed in the http:// tribal implications as specified by OAR–2011–0499, by one of the www.regulations.gov index. Although Executive Order 13175 (65 FR 67249, following methods: listed in the index, some information is November 9, 2000), because the SIP is • http://www.regulations.gov: Follow not publicly available, e.g., CBI or other not approved to apply in Indian country the on-line instructions for submitting information whose disclosure is located in the state, and EPA notes that comments. it will not impose substantial direct • E-mail: [email protected]. restricted by statute. Certain other costs on Tribal governments or preempt • Fax: 212–637–3901. material, such as copyrighted material, Tribal law. • Mail: Raymond Werner, Chief, Air will be publicly available only in hard copy. Publicly available docket List of Subjects in 40 CFR Part 52 Programs Branch, Environmental Protection Agency, Region 2 Office, 290 materials are available either Environmental protection, Air Broadway, 25th Floor, New York, New electronically in http:// pollution control, Carbon monoxide, York 10007–1866. www.regulations.gov or in hard copy at Intergovernmental relations, Lead, • Hand Delivery: Raymond Werner, the Environmental Protection Agency, Nitrogen dioxide, Ozone, Particulate Chief, Air Programs Branch, Region II Office, Air Programs Branch, matter, Reporting and recordkeeping Environmental Protection Agency, 290 Broadway, 25th Floor, New York, requirements, Sulfur oxides, Volatile Region 2 Office, 290 Broadway, 25th New York 10007–1866. EPA requests, if organic compounds. Floor, New York, New York 10007– at all possible, that you contact the Authority: 42 U.S.C. 7401 et seq. 1866. Such deliveries are only accepted individual listed in the FOR FURTHER during the Regional Office’s normal INFORMATION CONTACT section to view Dated: July 22, 2011. the hard copy of the docket. You may W.C. Early, hours of operation. The Regional Office’s official hours of business are view the hard copy of the docket Acting Regional Administrator, Region III. Monday through Friday, 8:30 to 4:30 Monday through Friday, 8 a.m. to [FR Doc. 2011–19799 Filed 8–3–11; 8:45 am] excluding Federal holidays. 4 p.m., excluding Federal holidays. BILLING CODE 6560–50–P Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: Docket No. EPA–R02–OAR- 2011–0499. Raymond K. Forde, Air Programs EPA’s policy is that all comments Branch, Environmental Protection ENVIRONMENTAL PROTECTION received will be included in the public Agency, 290 Broadway, 25th Floor, New AGENCY docket without change and may be York, New York 10007–1866, (212) 637– 3716 or [email protected]. 40 CFR Part 52 made available online at http:// www.regulations.gov, including any SUPPLEMENTARY INFORMATION: [Docket No. EPA–R02–OAR–2011–0499; personal information provided, unless Table of Contents FRL–9448–3] the comment includes information I. EPA’s Proposed Action Approval and Promulgation of claimed to be Confidential Business Information (CBI) or other information A. What action is EPA proposing today? Implementation Plans; Reasonably B. Why is EPA proposing this action? whose disclosure is restricted by statute. Available Control Technology for C. What are the Clean Air Act requirements Do not submit information that you Oxides of Nitrogen for a Specific for NOX RACT? Source in the State of New Jersey consider to be CBI or otherwise D. What is EPA’s evaluation of New protected through http:// Jersey’s SIP revision? AGENCY: Environmental Protection www.regulations.gov or e-mail. The II. New Jersey’s SIP Revision Agency. http://www.regulations.gov Web site is A. What are New Jersey’s NOX RACT requirements? ACTION: Proposed rule. an ‘‘anonymous access’’ system, which means EPA will not know your identity B. What are New Jersey’s facility specific NOX RACT requirements? SUMMARY: The Environmental Protection or contact information unless you C. When was New Jersey’s RACT Agency (EPA) is proposing to approve a provide it in the body of your comment. determination proposed and adopted? revision to the State Implementation If you send an e-mail comment directly D. When was New Jersey’s proposed SIP Plan (SIP) for ozone submitted by the to EPA without going through http:// revision submitted to EPA? State of New Jersey. This SIP revision www.regulations.gov your e-mail III. Conclusion consists of a source-specific reasonably address will be automatically captured VI. Statutory and Executive Order Reviews available control technology (RACT) and included as part of the comment I. EPA’s Proposed Action determination for controlling oxides of that is placed in the public docket and nitrogen from the stationary made available on the Internet. If you A. What action is EPA proposing today? reciprocating, diesel fuel fired, internal submit an electronic comment, EPA EPA is proposing to approve New combustion engines operated by the recommends that you include your Jersey’s revision to the ozone State Naval Weapons Station Earle located in name and other contact information in Implementation Plan (SIP) submitted on Colts Neck, New Jersey. This action the body of your comment and with any May 14, 2009. This SIP revision relates proposes an approval of the source- disk or CD–ROM you submit. If EPA to New Jersey’s NOX RACT specific RACT determination that was cannot read your comment due to determination for the Naval Weapons

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47093

Station Earle (NWSE) facility located in concerning attainment and reasonable facility, item of equipment, or source Colts Neck, New Jersey, Monmouth further progress, or any other applicable operation. This procedure applies to County. The facility contains two requirement of the Act. facilities considered major for NOX, stationary reciprocating, diesel fuel After reviewing New Jersey’s SIP which are in one of the following two fired, internal combustion engines—one revision submittal, EPA found it situations: (1) If the NOX facility existing and one new engine. administratively and technically contains any source operation or item of complete. EPA has determined that the equipment of a category not listed in B. Why is EPA proposing this action? NOX emission limits identified in New section 19.2(b) or (c) which has the EPA is proposing this action to: Jersey’s Conditions of Approval potential to emit more than 10 tons of • Give the public the opportunity to document represent RACT for NWSE’s NOX per year, or (2) if the owner or submit comments on EPA’s proposed engines. The conditions contained in operator of a source operation or item of action, as discussed in the DATES and the Conditions of Approval document equipment of a category listed in section ADDRESSES sections. • currently specify emissions limits, work 19.2(b) or (c) seeks approval of an Fulfill New Jersey’s and EPA’s practice standards, testing, monitoring, alternative maximum allowable requirements under the Clean Air Act and recordkeeping/reporting emission rate. This proposal relates to a (Act). requirements. These conditions are facility in the second situation listed • Make New Jersey’s RACT consistent with the NOX RACT above. determination federally enforceable. requirements specified in Subchapter 19 New Jersey’s procedure requires C. What are the Clean Air Act of Chapter 27, Title 7 of the New Jersey either submission of a NOX control plan, requirements for NOX RACT? Administrative Code and conform to if specific emission limitations do not The Act requires certain states to EPA NOX RACT guidance. More apply to the specific source, or develop RACT regulations for stationary specifically, EPA proposes to approve submission of a request for an the current Conditions of Approval sources of NOX and to provide for the alternative maximum allowable implementation of the required document which includes the following, emission rate if specific emission measures as soon as practicable. Under to limit the: limitations do apply to the specific the Act, the definition of a major 1. NOX emissions rate from each source. In either case, the owners/ stationary source is based on the tons engine to 11.3 g/bhp-hr, operators must include a technical and per year (tpy) of air pollution a source 2. Total NOX emissions rate while economic feasibility analysis of the emits and the quality of the air in the combusting 100% distillate oil to 4.67 possible alternative control measures. area of a source. In ozone transport tons per year for both engines Also, in either case, Subchapter 19 regions, attainment/unclassified areas as combined, requires that New Jersey establish well as marginal and moderate ozone 3. Combined hours of operation for emission limits which rely on a RACT attainment areas, a major stationary both engines to less than 675 hours per determination specific to the facility. year, source for NOX is considered to be one The resulting NOX control plan or which emits or has the potential to emit 4. Operation of each engine to 75% alternative maximum allowable 100 tpy or more of NO and is subject load or less, and emission rate must be submitted to EPA X 5. Annual fuel usage to 20,047.50 to the requirements of a moderate for approval as a SIP revision. gallons per year combined for both nonattainment area. New Jersey is engines. C. When was New Jersey’s RACT within the Northeast ozone transport In addition, the Conditions of determination proposed and adopted? region, established by section 184(a) of Approval specify the NO emissions the Act, and has defined a major X New Jersey’s RACT determination limits, combustion process adjustments stationary source of NO as a source was proposed on January 16, 2009, with X mentioned above, emission testing, which has the potential to emit 25 tpy, the public comment period ending monitoring, recordkeeping and the level set for severe nonattainment February 16, 2009. New Jersey adopted reporting requirements, which States areas. For detailed information on the the RACT determination on May 12, and sources will need to provide for Act requirements for NO RACT, see the 2009 and supplemented this X through the Title V permitting process. Technical Support Document (TSD) information on May 21, 2009. prepared in support of this proposed II. New Jersey’s SIP Revision D. When was New Jersey’s SIP revision action. A copy of the TSD is available A. What are New Jersey’s NOX RACT submitted to EPA? upon request from the EPA Regional requirements? Office listed in the ADDRESSES section or New Jersey’s SIP revision was it can be viewed at http:// New Jersey’s NOX RACT requirements submitted to EPA on May 14, 2009 and www.regulations.gov. are contained in Subchapter 19 entitled supplementary information was ‘‘Control of Oxides of Nitrogen’’, of provided on May 21, 2009. EPA D. What is EPA’s evaluation of New Chapter 27, Title 7 of the New Jersey determined that the submittal was Jersey’s SIP revision? Administrative Code. New Jersey has administratively and technically EPA has determined that New Jersey’s made numerous revisions to Subchapter complete on July 13, 2009. proposed SIP revision for the NO X 19 since the original SIP submission. III. Conclusion RACT determination for NWSE’s The current SIP approved version of engines is consistent with New Jersey’s Subchapter 19 was approved by EPA on EPA is proposing to approve the New NOX RACT regulation and EPA’s August 3, 2010 (75 FR 45483). Jersey SIP revision for an alternative guidance. EPA’s basis for evaluating RACT emission limit determination for New Jersey’s proposed SIP revision is B. What are New Jersey’s facility-specific the NWSE’s engines which includes whether it meets the SIP requirements NOX RACT requirements? source-specific NOx emissions limits for described in section 110 of the Act. EPA Section 19.13 of New Jersey’s the engines, combustion process has determined that New Jersey’s regulation establishes a procedure for a adjustments, emission testing, proposed SIP revision will not interfere case-by-case determination of what monitoring, recordkeeping and with any applicable requirement represents RACT for a major NOX reporting requirements. EPA will

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47094 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

consider all comments submitted prior located in the state, and EPA notes that you consider CBI or otherwise protected to any final rulemaking action. it will not impose substantial direct should be clearly identified as such and costs on tribal governments or preempt should not be submitted through IV. Statutory and Executive Order tribal law. http://www.regulations.gov or e-mail. Reviews http://www.regulations.gov is an List of Subjects in 40 CFR Part 52 Under the Clean Air Act, the ‘‘anonymous access’’ system, and EPA Administrator is required to approve a Environmental protection, Air will not know your identity or contact SIP submission that complies with the pollution control, Intergovernmental information unless you provide it in the provisions of the Act and applicable relations, Nitrogen dioxide, Ozone, body of your comment. If you send e- Federal regulations. 42 U.S.C. 7410(k); Reporting and recordkeeping mail directly to EPA, your e-mail 40 CFR 52.02(a). Thus, in reviewing SIP requirements. address will be automatically captured submissions, EPA’s role is to approve Authority: 42 U.S.C. 7401 et seq. and included as part of the public state choices, provided that they meet comment. If EPA cannot read your Dated: July 26, 2011. the criteria of the Clean Air Act. comment due to technical difficulties Accordingly, this action merely Judith A. Enck, and cannot contact you for clarification, approves state law as meeting Federal Regional Administrator, Region 2. EPA may not be able to consider your requirements and does not impose [FR Doc. 2011–19798 Filed 8–3–11; 8:45 am] comment. Electronic files should avoid additional requirements beyond those BILLING CODE 6560–50–P the use of special characters, any form imposed by state law. For that reason, of encryption, and be free of any defects this action: or viruses. • Is not a ‘‘significant regulatory ENVIRONMENTAL PROTECTION Docket: Generally, documents in the action’’ subject to review by the Office AGENCY docket for this action are available of Management and Budget under electronically at http:// 40 CFR Part 52 Executive Order 12866 (58 FR 51735, www.regulations.gov and in hard copy October 4, 1993); [EPA–R09–OAR–2011–0462; FRL–9437–7] at EPA Region IX, 75 Hawthorne Street, • Does not impose an information San Francisco, California. While all collection burden under the provisions Revisions to the California State documents in the docket are listed at of the Paperwork Reduction Act (44 Implementation Plan; South Coast Air http://www.regulations.gov, some U.S.C. 3501 et seq.); Quality Management District • information may be publicly available Is certified as not having a only at the hard copy location (e.g., significant economic impact on a AGENCY: Environmental Protection Agency (EPA). copyrighted material, large maps), and substantial number of small entities some may not be publicly available in ACTION: Proposed rule. under the Regulatory Flexibility Act either location (e.g., CBI). To inspect the (5 U.S.C. 601 et seq.); SUMMARY: EPA is proposing to approve hard copy materials, please schedule an • Does not contain any unfunded a revision to the South Coast Air Quality appointment during normal business mandate or significantly or uniquely Management District portion of the hours with the contact listed in the FOR affect small governments, as described California State Implementation Plan FURTHER INFORMATION CONTACT section. in the Unfunded Mandates Reform Act (SIP). This revision concerns volatile FOR FURTHER INFORMATION CONTACT: Mae of 1995 (Pub. L. 104–4); organic compound (VOC) emissions • Does not have Federalism Wang, EPA Region IX, (415) 947–4124, from polymeric cellular foam product implications as specified in Executive [email protected]. manufacturing operations. We are Order 13132 (64 FR 43255, August 10, SUPPLEMENTARY INFORMATION: This proposing to approve a local rule to 1999); proposal addresses the following local • Is not an economically significant regulate these emission sources under rule: South Coast Air Quality regulatory action based on health or the Clean Air Act as amended in 1990 Management District Rule 1175, Control safety risks subject to Executive Order (CAA). of Emissions from the Manufacturing of 13045 (62 FR 19885, April 23, 1997); DATES: Any comments on this proposal Polymeric Cellular (Foam) Products. In • Is not a significant regulatory action must arrive by September 6, 2011. the Rules and Regulations section of this subject to Executive Order 13211 (66 FR ADDRESSES: Submit comments, Federal Register, we are approving this 28355, May 22, 2001); identified by docket number EPA–R09– local rule in a direct final action without • Is not subject to requirements of OAR–2011–0462, by one of the prior proposal because we believe these Section 12(d) of the National following methods: SIP revisions are not controversial. If we Technology Transfer and Advancement 1. Federal eRulemaking Portal: receive adverse comments, however, we Act of 1995 (15 U.S.C. 272 note) because http://www.regulations.gov. Follow the will publish a timely withdrawal of the application of those requirements would on-line instructions. direct final rule and address the be inconsistent with the Clean Air Act; 2. E-mail: [email protected]. comments in subsequent action based and 3. Mail or deliver: Andrew Steckel on this proposed rule. Please note that • Does not provide EPA with the (Air-4), U.S. Environmental Protection if we receive adverse comment on an discretionary authority to address, as Agency Region IX, 75 Hawthorne Street, amendment, paragraph, or section of appropriate, disproportionate human San Francisco, CA 94105–3901. this rule and if that provision may be health or environmental effects, using Instructions: All comments will be severed from the remainder of the rule, practicable and legally permissible included in the public docket without we may adopt as final those provisions methods, under Executive Order 12898 change and may be made available of the rule that are not the subject of an (59 FR 7629, February 16, 1994). online at http://www.regulations.gov, adverse comment. In addition, this rule does not have including any personal information We do not plan to open a second tribal implications as specified by provided, unless the comment includes comment period, so anyone interested Executive Order 13175 (65 FR 67249, Confidential Business Information (CBI) in commenting should do so at this November 9, 2000), because the SIP is or other information whose disclosure is time. If we do not receive adverse not approved to apply in Indian country restricted by statute. Information that comments, no further activity is

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47095

planned. For further information, please rule, call or e-mail Mr. Todd Haviland, ‘‘submit a comment’’ box, which will see the direct final action. Management & Program Analyst, Office then become highlighted in blue. In the Dated: June 21, 2011. of Great Lakes Pilotage, Commandant ‘‘Document Type’’ drop down menu (CG–5522), Coast Guard; telephone 202– Jared Blumenfeld, select ‘‘Proposed Rule’’ and insert 372–2037, e-mail ‘‘USCG–2011–0328’’ in the ‘‘Keyword’’ Regional Administrator, Region IX. [email protected], or fax 202– box. Click ‘‘Search’’ then click on the [FR Doc. 2011–19393 Filed 8–3–11; 8:45 am] 372–1909. If you have questions on balloon shape in the ‘‘Actions’’ column. BILLING CODE 6560–50–P viewing or submitting material to the If you submit your comments by mail or docket, call Renee V. Wright, Program hand delivery, submit them in an Manager, Docket Operations, telephone unbound format, no larger than 8c by 11 DEPARTMENT OF HOMELAND 202–366–9826. inches, suitable for copying and SECURITY SUPPLEMENTARY INFORMATION: electronic filing. If you submit comments by mail and would like to Table of Contents for Preamble Coast Guard know that they reached the Facility, I. Public Participation and Request for please enclose a stamped, self-addressed 46 CFR Part 401 Comments postcard or envelope. [USCG–2011–0328] A. Submitting Comments B. Viewing Comments and Documents We will consider all comments and RIN 1625–AB70 C. Privacy Act material received during the comment D. Public Meeting period and may change this proposed 2012 Rates for Pilotage on the Great II. Abbreviations rule based on your comments. Lakes III. Basis and Purpose IV. Background B. Viewing Comments and Documents AGENCY: Coast Guard, DHS. V. Discussion of Proposed Rule ACTION: Notice of proposed rulemaking. A. Summary To view comments, as well as B. Discussion of Methodology documents mentioned in this preamble SUMMARY: The Coast Guard proposes VI. Regulatory Analyses as being available in the docket, go to adjustments to the rates for pilotage A. Executive Order 12866 and Executive http://www.regulations.gov, click on the Order 13563 ‘‘read comments’’ box, which will then services on the Great Lakes, which were B. Small Entities last amended in February 2011. The C. Assistance for Small Entities become highlighted in blue. In the proposed adjustments would establish D. Collection of Information ‘‘Keyword’’ box insert ‘‘USCG–2011– new base rates and are made in E. Federalism 0328’’ and click ‘‘Search.’’ Click the accordance with a required full F. Unfunded Mandates Reform Act ‘‘Open Docket Folder’’ in the ‘‘Actions’’ ratemaking procedure. They result in an G. Taking of Private Property column. If you do not have access to the average decrease of approximately 4 H. Civil Justice Reform internet, you may view the docket percent from the rates established in I. Protection of Children online by visiting the Docket J. Indian Tribal Governments February 2011. This rulemaking K. Energy Effects Management Facility in Room W12–140 promotes the Coast Guard’s strategic L. Technical Standards on the ground floor of the Department goal of maritime safety. M. Environment of Transportation West Building, 1200 DATES: Comments and related material New Jersey Avenue, SE., Washington, I. Public Participation and Request for DC 20590, between 9 a.m. and 5 p.m., must be submitted on or before October Comments 3, 2011. Monday through Friday, except Federal We encourage you to participate in ADDRESSES: You may submit comments holidays. We have an agreement with this rulemaking by submitting identified by docket number USCG– the Department of Transportation to use comments and related materials. All 2011–0328 using any one of the the Docket Management Facility. comments received will be posted following methods: C. Privacy Act (1) Federal eRulemaking Portal: without change to http:// www.regulations.gov and will include http://www.regulations.gov. Anyone can search the electronic (2) Fax: 202–493–2251. any personal information you have form of comments received into any of (3) Mail: Docket Management Facility provided. our dockets by the name of the (M–30), U.S. Department of A. Submitting Comments individual submitting the comment (or Transportation, West Building Ground If you submit a comment, please signing the comment, if submitted on Floor, Room W12–140, 1200 New Jersey include the docket number for this behalf of an association, business, labor Avenue, SE., Washington, DC 20590– rulemaking (USCG–2011–0328), union, etc.). You may review a Privacy 0001. indicate the specific section of this Act notice regarding our public dockets (4) Hand delivery: Same as mail document to which each comment in the January 17, 2008 issue of the address above, between 9 a.m. and applies, and provide a reason for each Federal Register (73 FR 3316). 5 p.m., Monday through Friday, except suggestion or recommendation. You D. Public Meeting Federal holidays. The telephone number may submit your comments and is 202–366–9329. material online or by fax, mail, or hand We do not now plan to hold a public To avoid duplication, please use only delivery, but please use only one of meeting. But you may submit a request one of these four methods. See the these means. We recommend that you for one to the docket using one of the ‘‘Public Participation and Request for include your name and a mailing methods specified under ADDRESSES. In Comments’’ portion of the address, an e-mail address, or a phone your request, explain why you believe a SUPPLEMENTARY INFORMATION section number in the body of your document public meeting would be beneficial. If below for instructions on submitting so that we can contact you if we have we determine that one would aid this comments. questions regarding your submission. rulemaking, we will hold one at a time FOR FURTHER INFORMATION CONTACT: If To submit your comment online, go to and place announced by a later notice you have questions on this proposed http://www.regulations.gov, click on the in the Federal Register.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47096 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

II. Abbreviations on the Great Lakes, are not affected. 46 review was concluded on February 4, AMOU American Maritime Officers Union. U.S.C. 9302. 2011 (76 FR 6351) and adjusts pilotage CFR Code of Federal Regulations. The U.S. waters of the Great Lakes rates effective August 1, 2011. CPI Consumer Price Index. and the St. Lawrence Seaway are We intended to establish new base FR Federal Register. divided into three pilotage districts. rates within 5 years of the 2006 full NAICS North American Industry Pilotage in each district is provided by ratemaking, or by March 1, 2011. Classification System. an association certified by the Coast However, an initial independent NPRM Notice of proposed rulemaking. Guard Director of Great Lakes Pilotage accountant’s report on pilot association OMB Office of Management and Budget. to operate a pilotage pool. It is financial information was incomplete ROI Return on Investment. important to note that, while we set and inadequate, and could not be used § Section symbol. rates, we do not control the actual U.S.C. United States Code. for ratemaking. The resulting need to number of pilots an association contract with a new independent III. Basis and Purpose maintains, so long as the association is accountant pushed this Appendix A able to provide safe, efficient, and The basis of this rulemaking is the ratemaking back a year, as we reliable pilotage service. We also do not previously informed the public in 2009 Great Lakes Pilotage Act of 1960 (‘‘the control the actual compensation that Act’’) (46 U.S.C. Chapter 93), which and 2010 annual review rulemaking pilots receive. The actual compensation documents. 74 FR 56153 at 56154 requires U.S. vessels operating ‘‘on is determined by each of the three 1 (October 30, 2009), 75 FR 51191 at register’’ and foreign vessels to use U.S. district associations, which use different registered pilots while transiting the 51192 (August 19, 2010). We have now compensation practices. completed our review of the second U.S. waters of the St. Lawrence Seaway District One, consisting of Areas 1 and independent accountant’s 2009 pilot and the Great Lakes system. 46 U.S.C. 2, includes all U.S. waters of the St. financial report. The comments by the 9302(a)(1). The Act requires the Lawrence River and Lake Ontario. pilot associations on that report and the Secretary of Homeland Security to District Two, consisting of Areas 4 and independent accountant’s final findings ‘‘prescribe by regulation rates and 5, includes all U.S. waters of Lake Erie, charges for pilotage services, giving the Detroit River, Lake St. Clair, and the are discussed in our document entitled consideration to the public interest and St. Clair River. District Three, consisting ‘‘Summary—Independent Accountant’s the costs of providing the services.’’ of Areas 6, 7, and 8, includes all U.S. Report on Pilot Association Expenses, Rates must be established or reviewed waters of the St. Mary’s River, Sault Ste. with Pilot Association Comments and and adjusted each year, not later than Marie Locks, and Lakes Michigan, Accountant’s Responses,’’ which March 1. Base rates must be established Huron, and Superior. Area 3 is the appears in the docket. by a full ratemaking at least once every Welland Canal, which is serviced V. Discussion of Proposed Rule 5 years, and in years when base rates are exclusively by the Canadian Great Lakes not established they must be reviewed Pilotage Authority and, accordingly, is A. Summary and adjusted if necessary. 46 U.S.C. not included in the U.S. rate structure. We propose establishing new base 9303(f). The Secretary’s duties and Areas 1, 5, and 7 have been designated pilotage rates in accordance with the authority under the Act have been by Presidential Proclamation, pursuant methodology outlined in Appendix A to delegated to the Coast Guard. to the Act, to be waters in which pilots 46 CFR Part 404. The proposed new Department of Homeland Security must at all times be fully engaged in the rates would be established by March 1, Delegation No. 0170.1, paragraph (92)(f). navigation of vessels in their charge. 2012 and effective August 1, 2012. They Coast Guard regulations implementing Areas 2, 4, 6, and 8 have not been so would average approximately 4 percent the Act appear in parts 401 through 404 designated because they are open bodies less, overall, than the February 2011 rate of Title 46, Code of Federal Regulations of water. While working in those adjustments. Table 1 shows the (CFR). Procedures for use in establishing undesignated areas, pilots must only proposed percent change for the new base rates appear in 46 CFR part 404, ‘‘be on board and available to direct the rates for each area. Rates for Appendix A, and procedures for annual navigation of the vessel at the discretion cancellation, delay, or interruption in review and adjustment of existing base of and subject to the customary rendering services (46 CFR 401.420) and rates appear in 46 CFR part 404, authority of the master.’’ 46 U.S.C. basic rates and charges for carrying a Appendix C. 9302(a)(1)(B). U.S. pilot beyond the normal change The purpose of this rulemaking is to This rulemaking is a full ratemaking point, or for boarding at other than the establish new base pilotage rates, using to establish new base pilotage rates, normal boarding point (46 CFR using the 46 CFR part 404, Appendix A, the 46 CFR part 404, Appendix A, 401.428), would also decrease by 4 methodology. Among other things, the methodology. percent in all areas. Appendix A methodology requires us to IV. Background review detailed pilot association TABLE 1—SUMMARY OF RATE financial information, and we contract The vessels affected by this ADJUSTMENTS rulemaking are engaged in foreign trade with independent accountants to assist in that review. The last full ratemaking upon the U.S. waters of the Great Lakes. Then the percent U.S. and Canadian ‘‘Lakers,’’ 2 which established the current base rates in If pilotage service is decrease over account for most commercial shipping 2006 (final rule, 71 FR 16501, April 3, required in: the current 2006). Following the 2006 full rate is: ratemaking, and for the first time since 1 ‘‘On register’’ means that the vessel’s certificate 1996 when the 46 CFR part 404 Area 1 (Designated of documentation has been endorsed with a registry waters) ...... ¥1.74 endorsement, and therefore, may be employed in Appendix A and Appendix C Area 2 (Undesignated foreign trade or trade with Guam, American Samoa, methodologies were established, we waters) ...... ¥9.09 Wake, Midway, or Kingman Reef. 46 U.S.C. 12105, began a series of five annual Appendix 46 CFR 67.17. Area 4 (Undesignated ¥ 2 A ‘‘Laker’’ is a commercial cargo vessel C rate reviews and adjustments, each of waters) ...... 3.64 especially designed for and generally limited to use which produced overall rate increases. Area 5 (Designated on the Great Lakes. The most recent Appendix C annual waters) ...... ¥2.84

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47097

TABLE 1—SUMMARY OF RATE amount of vessel traffic annually. Based also reviewed which reported expenses ADJUSTMENTS—Continued upon that projection, we forecast the should be adjusted prior to recognition, amount of fair and reasonable operating or if they should be denied for Then the percent expenses that pilotage rates should ratemaking purposes. The independent If pilotage service is decrease over recover. accountant made preliminary findings; required in: the current rate is: Step 1.A: Submission of Financial they were sent to the pilot associations, Information. This sub-step requires each and the pilot associations reviewed and Area 6 (Undesignated pilot association to provide us with commented on the preliminary findings. waters) ...... ¥3.73 detailed financial information in Then, the independent accountant made Area 7 (Designated accordance with 46 CFR part 403. The final findings. The Coast Guard Director waters) ...... ¥3.08 associations complied with this of Great Lakes Pilotage reviewed and Area 8 (Undesignated requirement, supplying 2009 financial accepted those final findings, resulting ¥ waters) ...... 5.08 information in 2010. in the determination of recognizable Step 1.B: Determination of expenses. The preliminary findings, the B. Discussion of Methodology Recognizable Expenses. This sub-step associations’ comments on those Appendix A provides seven steps, requires us to determine which reported findings, and the final findings are all with sub-steps, for calculating rate association expenses will be recognized discussed in the ‘‘Summary— adjustments. The following discussion for ratemaking purposes, using the Independent Accountant’s Report on describes those steps and sub-steps and guidelines shown in 46 CFR 404.5. We Pilot Association Expenses, with Pilot includes tables showing how we have contracted with an independent Association Comments and applied them to the 2009 detailed pilot accountant to review the reported Accountant’s Responses,’’ which financial information. expenses and submit findings appears in the docket. Tables 2 through Step 1: Projection of Operating recommending which reported expenses 4 show each association’s recognized Expenses. In this step, we project the should be recognized. The accountant expenses.

TABLE 2—RECOGNIZED EXPENSES FOR DISTRICT ONE

Area 1 Area 2 Reported expenses for 2009 St. Lawrence Total River Lake Ontario

Pilot Costs: Pilot subsistence/travel ...... $164,782 $131,436 $296,218 License insurance ...... $28,428 $18,952 $47,380 Other ...... $980 $857 $1,837 Pilot Boat and Dispatch Expenses: Pilot boat expense ...... $101,612 $82,506 $184,118 Administrative Expenses: Legal ...... $10,450 $8,685 $19,135 Depreciation/auto leasing/other ...... $8,917 $7,283 $16,200 Dues and subscriptions ...... $13,717 $10,678 $24,395 Bad debt expense ...... $9,302 $1,004 $10,306 Utilities ...... $478 $346 $824 Accounting/professional fees ...... $2,182 $1,818 $4,000 Bookkeeping and Administration ...... $77,730 $66,121 $143,851 Other ...... $762 $582 $1,344

Total recognizable ...... $419,340 $330,268 $749,608 Adjustments: Other Pilot Costs: Pilotage Subsistence/Travel ...... ($4,624) ($3,641) ($8,265) Payroll taxes ...... $48,508 $38,204 $86,712 Other ...... ($589) ($463) ($1,052) Administrative Expenses: Legal ...... ($270) ($212) ($482) Dues and subscriptions ...... ($13,647) ($10,748) ($24,395) Bad debt expense ...... ($5,765) ($4,540) ($10,305) Other ...... ($120) ($94) ($214)

Total adjustments ...... $23,495 $18,504 $41,999

Total Expenses ...... $442,835 $348,772 $791,607

TABLE 3—RECOGNIZED EXPENSES FOR DISTRICT TWO

Area 4 Area 5 Reported expenses for 2009 Southeast Total Lake Erie Shoal to Port Huron, MI

Pilot Costs:

VerDate Mar<15>2010 17:12 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47098 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

TABLE 3—RECOGNIZED EXPENSES FOR DISTRICT TWO—Continued

Area 4 Area 5 Reported expenses for 2009 Southeast Total Lake Erie Shoal to Port Huron, MI

Pilot subsistence/travel ...... $67,580 $101,371 $168,951 License insurance ...... $6,254 $9,380 $15,634 Payroll taxes ...... $19,453 $43,770 $63,223 Other ...... $12,697 $28,662 $41,359 Pilot Boat and Dispatch Expenses: Pilot boat expense ...... $28,026 $179,577 $207,603 Dispatch expense ...... $12,975 $0 $12,975 Payroll taxes ...... $0 $7,154 $7,154 Administrative Expenses: Legal ...... $30,052 $45,079 $75,131 Office Rent ...... $30,275 $45,413 $75,688 Insurance ...... $10,408 $15,611 $26,019 Employee benefits ...... $26,483 $39,725 $66,208 Payroll taxes ...... $3,821 $5,731 $9,552 Other taxes ...... $9,815 $14,723 $24,538 Depreciation/auto leasing/other ...... $27,383 $41,075 $68,458 Interest ...... $16,314 $24,471 $40,785 Dues and subscriptions ...... $4,450 $6,675 $11,125 Salaries ...... $12,164 $18,245 $30,409 Accounting/professional fees ...... $43,071 $64,607 $107,678 Bookkeeping and administration ...... $9,400 $14,100 $23,500 Other ...... $9,427 $14,140 $23,567

Total recognizable ...... $380,048 $719,509 $1,099,557 Adjustments: Other Pilot Costs: Pilotage Subsistence/Travel ...... ($1,338) ($2,533) ($3,871) Pilot Boat and Dispatch Expenses: Pilot boat expense ...... $2,907 $5,504 $8,411 Administrative Expenses: Legal ...... ($4,915) ($9,305) ($14,220) Employee benefits ...... $1,177 $2,228 $3,405 Other taxes ...... ($238) ($450) ($688) Depreciation/auto leasing/other ...... $2,398 $4,540 $6,938 Interest ...... ($10,379) ($19,649) ($30,028) Dues and subscriptions ...... ($3,807) ($7,208) ($11,015) Salaries ...... $417 $789 $1,206 Other ...... ($833) ($1,577) ($2,410)

Total adjustments ...... ($14,611) ($27,661) ($42,272)

Total Expenses ...... $365,437 $691,848 $1,057,285

TABLE 4—RECOGNIZED EXPENSES FOR DISTRICT THREE

Area 6 Area 7 Area 8 Reported expenses for 2009 Lakes Huron St. Mary’s Total and Michigan River Lake Superior

Pilot Costs: Pilot subsistence/travel ...... $144,081 $75,501 $95,005 $314,587 License insurance ...... $10,577 $5,543 $6,975 $23,095 Other ...... $1,025 $537 $675 $2,237 Pilot Boat and Dispatch Expenses: Pilot boat costs ...... $156,031 $81,763 $102,885 $340,679 Dispatch expense ...... $46,365 $24,296 $30,572 $101,233 Payroll taxes ...... $5,846 $3,064 $3,855 $12,765 Administrative Expenses: Legal ...... $16,462 $8,626 $10,855 $35,943 Office Rent ...... $4,534 $2,376 $2,990 $9,900 Insurance ...... $6,730 $3,527 $4,438 $14,695 Employee benefits ...... $50,668 $26,551 $33,410 $110,629 Payroll taxes ...... $4,774 $2,502 $3,148 $10,424 Other taxes ...... $11,599 $6,078 $7,648 $25,325 Depreciation/auto leasing ...... $17,396 $9,116 $11,471 $37,983 Interest ...... $2,417 $1,267 $1,594 $5,278 Dues and subscriptions ...... $15,594 $8,172 $10,283 $34,049

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47099

TABLE 4—RECOGNIZED EXPENSES FOR DISTRICT THREE—Continued

Area 6 Area 7 Area 8 Reported expenses for 2009 Lakes Huron St. Mary’s Total and Michigan River Lake Superior

Utilities ...... $15,182 $7,956 $10,011 $33,149 Salaries ...... $35,110 $18,398 $23,151 $76,659 Accounting/professional fees ...... $8,588 $4,500 $5,663 $18,751 Other ...... $6,852 $3,591 $4,518 $14,961

Total Recognizable...... $559,831 $293,364 $369,147 $1,222,342 Adjustments: Other Pilot Costs: Pilotage Subsistence/Travel ...... ($1,102) ($578) ($727) ($2,407) Payroll taxes ...... $28,842 $15,114 $19,018 $62,973 Other ...... ($196) ($103) ($129) ($428) Pilot Boat and Dispatch Expenses: Dispatch costs ...... ($3,367) ($1,764) ($2,220) ($7,352) Administrative Expenses: Legal ...... ($1,447) ($758) ($954) ($3,159) Employee benefits ...... ($1,380) ($723) ($910) ($3,013) Depreciation/auto leasing/other ...... $599 $314 $395 $1,307 Dues and subscriptions ...... ($15,594) ($8,172) ($10,283) ($34,049) Other ...... ($528) ($277) ($348) ($1,153)

Total Adjustments ...... $5,825 $3,053 $3,841 $12,719

Total Expenses...... $565,656 $296,417 $372,988 $1,235,061

Step 1.C: Adjustment for Inflation or ‘‘succeeding navigation season’’ for this of the United States, which can be Deflation. In this sub-step we project ratemaking is 2010. We based our found at: http://www.bls.gov/xg_shells/ rates of inflation or deflation for the inflation adjustment of 2 percent on the ro5xg01.htm. This adjustment appears succeeding navigation season. Because 2010 change in the Consumer Price in Tables 5 through 7. we used 2009 financial information, the Index (CPI) for the North Central Region

TABLE 5—INFLATION ADJUSTMENT, DISTRICT ONE

Area 1 Area 2 Reported expenses for 2009 St. Lawrence Total River Lake Ontario

Total Expenses ...... $442,835 $348,772 $791,607 2010 change in the Consumer Price Index (CPI) for the North Central Region of the United States ...... × .02 × .02 × .02 Inflation Adjustment...... = $8,857 = $6,975 = $15,832

TABLE 6—INFLATION ADJUSTMENT, DISTRICT TWO

Area 4 Area 5 Reported expenses for 2009 Southeast Total Lake Erie shoal to Port Huron, MI

Total Expenses ...... $365,437 $691,848 $1,057,285 2010 change in the Consumer Price Index (CPI) for the North Central Region of the United States ...... × .02 × .02 × .02 Inflation Adjustment ...... = $7,309 = $13,837 = $21,146

TABLE 7—INFLATION ADJUSTMENT, DISTRICT THREE

Area 6 Area 7 Area 8 Reported expenses for 2009 Lakes Huron St. Mary’s Total and Michigan River Lake Superior

Total Expenses ...... $565,656 $296,417 $372,988 $1,235,061 2010 change in the Consumer Price Index (CPI) for the North Central Region of the United States ...... × .02 × .02 × .02 × .02

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47100 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

TABLE 7—INFLATION ADJUSTMENT, DISTRICT THREE—Continued

Area 6 Area 7 Area 8 Reported expenses for 2009 Lakes Huron St. Mary’s Total and Michigan River Lake Superior

Inflation Adjustment...... = $11,313 = $5,928 = $7,460 = $24,701

Step 1.D: Projection of Operating foreseeable circumstances that could exclusively on the calculations from Expenses. The final sub-step of Step 1 affect the accuracy of the projection. sub-steps 1.A through 1.C. Tables 8 is to project the operating expenses for Because we are not now aware of any through 10 show these projections. each pilotage area, on the basis of the such circumstances, the projected preceding sub-steps and any other operating expenses are based

TABLE 8—PROJECTED OPERATING EXPENSES, DISTRICT ONE

Area 1 Area 2 Reported expenses for 2009 St. Lawrence Total River Lake Ontario

Total Expenses ...... $442,835 $348,772 $791,607 Inflation Adjustment 2% ...... + $8,857 + $6,975 + $15,832

Total projected expenses for 2012 pilotage season ...... = $451,691 = $355,748 = $807,439

TABLE 9—PROJECTED OPERATING EXPENSES, DISTRICT TWO

Area 4 Area 5 Reported Expenses for 2009 Southeast Total Lake Erie Shoal to Port Huron, MI

Total Expenses ...... $365,437 $691,848 $1,057,285 Inflation Adjustment 2% ...... + $7,309 + $13,837 + $21,146

Total projected expenses for 2012 pilotage season ...... = $372,746 = $705,685 = $1,078,431

TABLE 10—PROJECTED OPERATING EXPENSES, DISTRICT THREE

Area 6 Area 7 Area 8 Reported Expenses for 2009 Lakes Huron St. Mary’s Total and Michigan River Lake Superior

Total Expenses ...... $565,656 $296,417 $372,988 $1,235,061 Inflation Adjustment 2% ...... + $11,313 + $5,928 + $7,460 + $24,701

Total projected expenses for 2012 pilotage season = $576,969 = $302,345 = $380,448 = $1,259,762

Step 2: Projection of Target Pilot pilot compensation for pilots in AMOU contracts available—we refer to Compensation. In Step 2, we project the undesignated waters approximates the them as Agreements A and B and annual amount of target pilot average annual compensation for first apportion the compensation provided compensation that pilotage rates should mates on U.S. Great Lakes vessels. by each agreement according to the provide in each area. These projections Compensation is determined based on percentage of tonnage represented by are based on our latest information on the most current union contracts and companies under each agreement. the conditions that will prevail in 2012. includes wages and benefits received by Agreement A applies to vessels operated Step 2.A: Determination of Target first mates. We calculate target pilot by Key Lakes, Inc., and Agreement B Rate of Compensation. We first compensation for pilots on designated applies to all vessels operated by explained the methodology we have waters by multiplying the average first American Steamship Co. and Mittal consistently used for this step in the mates’ wages by 150 percent and then Steel USA, Inc. interim rule for our last Appendix A adding the average first mates’ benefits. Agreements A and B both expire on ratemaking (68 FR 69564 at 69571 col. The most current union contracts July 31, 2011 and AMOU does not 3; December 12, 2003), and most available to us are American Maritime expect to conclude an agreement on recently restated this explanation in our Officers Union (AMOU) contracts with new contracts in time for us to 2011 Appendix C final rule (76 FR 6351 three U.S. companies engaged in Great incorporate them in this ratemaking. at 6354 col. 3; February 4, 2011). Target Lakes shipping. There are two separate However, we can project based on past

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47101

contract increases and on the current Because we are interested in annual 54.5 days and the monthly multiplier contracts that any new contracts would compensation, we must convert these for Agreement B is 49.5 days. We provide for annual 3 percent wage daily rates. Agreements A and B both multiply the monthly figures by 9, increases. Under Agreement A, we use monthly multipliers to convert daily which represents the average length (in project that the daily wage rate would rates into monthly figures that represent months) of the Great Lakes shipping increase from $278.73 to $287.09. Under actual working days and vacation, season. Table 11 shows our calculations. Agreement B, the daily wage rate would holiday, weekend, or bonus days. The increase from $343.59 to $353.90. monthly multiplier for Agreement A is

TABLE 11—PROJECTED WAGE COMPONENTS

Pilots on Pilots on Monthly component undesignated designated waters waters

Agreement A: $287.09 daily rate × 54.5 days ...... $15,646 $23,470 Monthly total × 9 months = total wages ...... 140,818 211,226 Agreement B: $353.90 daily rate × 49.5 days ...... 17,518 26,277 Monthly total × 9 months = total wages ...... 157,662 236,494

Based on increases over the 5-year average, health benefits contribution to calculate monthly benefits from daily history of the current contracts, we rates have increased 10 percent rates, is currently 45.5 days, and we project that both Agreements A and B annually. Thus, we project that both project that will remain unchanged. We will increase their health benefits Agreements A and B will increase this use a 9-month multiplier to calculate contributions and leave 401K-plan and benefit from $97.64 to $107.40 per day. the annual value of these benefits. Table pension contributions unchanged. On The multiplier that both agreements use 12 shows our calculations.

TABLE 12—PROJECTED BENEFITS COMPONENTS

Pilots on Pilots on Monthly component undesignated designated waters waters

Agreement A: Employer contribution, 401K plan (Monthly wages × 5%) ...... $782.32 $1,173.48 Pension = $33.35 × 45.5 days ...... 1,517.43 1,517.43 Health = $107.40 × 45.5 days ...... 4,886.70 4,886.70 Monthly total benefits ...... 7,186.45 7,577.61 Monthly total benefits × 9 months ...... 64,678 68,198 Agreement B: Employer contribution, 401K plan (Monthly wages × 5%) ...... 875.90 1,313.85 Pension = $43.55 × 45.5 days ...... 1,981.53 1,981.53 Health = $107.40 × 45.5 days ...... 4,886.70 4,886.70 Monthly total benefits ...... 7,744.13 8,182.08 Monthly total benefits × 9 months ...... 69,697 73,639

Table 13 combines our projected wage and benefit components of annual target pilot compensation.

TABLE 13—PROJECTED WAGE AND BENEFITS COMPONENTS, COMBINED

Pilots on Pilots on undesignated designated waters waters

Agreement A: Wages ...... $140,818 $211,226 Benefits ...... 64,678 68,198

Total ...... 205,496 279,425 Agreement B: Wages ...... 157,662 236,494 Benefits ...... 69,697 73,639

Total ...... 227,360 310,132

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47102 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

Agreements A and B affect three approximately 30 percent operates 70 percent operates under Agreement B. companies. Of the tonnage operating under Agreement A and approximately Table 14 provides detail. under those three companies,

TABLE 14—SHIPPING TONNAGE APPORTIONED BY CONTRACT

Company Agreement A Agreement B

American Steamship Company ...... 815,600 Mittal Steel USA, Inc ...... 38,826 Key Lakes, Inc ...... 361,385 ......

Total tonnage, each agreement ...... 361,385 ...... 854,426 Percent tonnage, each agreement ...... 361,395 ÷ 1,215,811 = 29.7238% 854,426 ÷ 1,215,811 = 70.2962%

We use the percentages from Table 14 benefit components from Table 13. This figures. Table 15 shows our to apportion the projected wage and gives us a single tonnage-weighted set of calculations.

TABLE 15—TONNAGE-WEIGHTED WAGE AND BENEFIT COMPONENTS

Undesignated Designated waters waters

Agreement A: Total wages and benefits ...... $205,496 $279,425 Percent tonnage ...... × 29.7238% × 29.7238%

Total ...... = $61,081 = $83,056 Agreement B: Total wages and benefits ...... $227,360 $310,132 Percent tonnage ...... × 70.2762% × 70.2762%

Total ...... = $159,780 = $217,949 Projected Target Rate of Compensation: Agreement A total weighted average wages and benefits ...... $61,081 $83,056 Agreement B total weighted average wages and benefits ...... + $159,780 + $217,949

Total ...... = $220,861 = $301,005

Step 2.B: Determination of Number of reason and as we explained most number to use for ratemaking purposes Pilots Needed. Subject to adjustment by recently in the 2011 ratemaking’s final in 2012. This includes 5 pilots in Area the Coast Guard Director of Great Lakes rule, we do not include, and never have 2, where rounding up alone would Pilotage to ensure uninterrupted service included, pilot delay or detention in result in only 4 pilots. For the same or for other reasonable circumstances, calculating bridge hours. See 76 FR reasons we explained at length in the we determine the number of pilots 6351 at 6352 col. 3 (February 4, 2011). final rule for the 2008 ratemaking, 74 FR needed for ratemaking purposes in each Projected bridge hours are based on the 220 at 221–22 (January 5, 2009), we area by dividing projected bridge hours vessel traffic that pilots are expected to have determined that this adjustment is for each area, by either 1,000 serve. We use historical data, input from essential for ensuring uninterrupted (designated waters) or 1,800 the pilots and industry, periodicals and pilotage service in Area 2. Table 16 (undesignated waters). We round the trade magazines, and information from shows the bridge hours we project will mathematical results and express our conferences to project demand for be needed for each area and our determination as whole pilots. pilotage services for the coming year. ‘‘Bridge hours are the number of In our 2011 final rule, we determined calculations to determine the number of hours a pilot is aboard a vessel that 38 pilots would be needed for whole pilots needed for ratemaking providing pilotage service,’’ 46 CFR part ratemaking purposes. We have purposes. 404, Appendix A, Step 2.B(1). For that determined that 38 remains the proper

TABLE 16—NUMBER OF PILOTS NEEDED

Divided by 1,000 (designated Projected waters) or Calculated Pilots needed Pilotage area 2012 bridge 1,800 value of (total = 38) hours (undesignated pilot demand waters)

AREA 1 (Designated Waters) ...... 5,114 ÷ 1,000 = 5.114 6 AREA 2 (Undesignated Waters) ...... 5,401 ÷ 1,800 = 3.001 5 AREA 4 (Undesignated Waters) ...... 6,680 ÷ 1,800 = 3.711 4 AREA 5 (Designated Waters) ...... 5,002 ÷ 1,000 = 5.002 6 AREA 6 (Undesignated Waters) ...... 11,187 ÷ 1,800 = 6.215 7

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47103

TABLE 16—NUMBER OF PILOTS NEEDED—Continued

Divided by 1,000 (designated Projected waters) or Calculated Pilots needed Pilotage area 2012 bridge 1,800 value of (total = 38) hours (undesignated pilot demand waters)

AREA 7 (Designated Waters) ...... 3,160 ÷ 1,000 = 3.160 4 AREA 8 (Undesignated Waters) ...... 9,353 ÷ 1,800 = 5.196 6

Step 2.C: Projection of Target Pilot separately for each area, by multiplying area, as shown in Table 16, by the target Compensation. In Table 17 we project the number of pilots needed in each pilot compensation shown in Table 15. total target pilot compensation

TABLE 17—PROJECTION OF TARGET PILOT COMPENSATION BY AREA

Target rate Projected Pilotage area Pilots needed of pilot target pilot (total = 38) compensation compensation

AREA 1 (Designated Waters) ...... 6 × $301,005 = $1,806,030 AREA 2 (Undesignated Waters) ...... 5 × 220,861 = 1,104,304 AREA 4 (Undesignated Waters) ...... 4 × 220,861 = 883,443 AREA 5 (Designated Waters) ...... 6 × 301,005 = 1,806,030 AREA 6 (Undesignated Waters) ...... 7 × 220,861 = 1,546,026 AREA 7 (Designated Waters) ...... 4 × 301,005 = 1,204,020 AREA 8 (Undesignated Waters) ...... 6 × 220,861 = 1,325,165

Step 3 and 3.A: Projection of Revenue. pilotage services matches the bridge 2011 pilotage rates were left unchanged. In this step, we project the revenue that hours we projected in Table 16, and Table 18 shows this calculation. would be received in 2012 if demand for

TABLE 18—PROJECTION OF REVENUE BY AREA

Projected Revenue Pilotage area 2012 bridge 2011 pilotage projection for hours rates 2012

AREA 1 (Designated Waters) ...... 5,114 × $451.38 = $2,308,357 AREA 2 (Undesignated Waters) ...... 5,401 × 298.98 = 1,614,791 AREA 4 (Undesignated Waters) ...... 6,680 × 196.19 = 1,310,549 AREA 5 (Designated Waters) ...... 5,002 × 519.89 = 2,600,490 AREA 6 (Undesignated Waters) ...... 11,187 × 199.12 = 2,227,555 AREA 7 (Designated Waters) ...... 3,160 × 495.54 = 1,565,906 AREA 8 (Undesignated Waters) ...... 9,353 × 193.72 = 1,811,863

Total ...... 13,439,512

Step 4: Calculation of Investment assets employed by the association of the formula identifies each Base. This step calculates each required to support pilotage operations. association’s total sources of funds. association’s investment base, the This step uses a formula set out in 46 Tables 19 through 21 follow the formula recognized capital investment in the CFR part 404, Appendix B. The first part up to that point.

TABLE 19—TOTAL SOURCES OF FUNDS, DISTRICT ONE

Area 1 Area 2

Recognized Assets: Total Current Assets ...... $233,316 $174,705 Total Current Liabilities ...... ¥ 20,091 ¥ 15,044 Current Notes Payable ...... + 0 + 0 Total Property and Equipment (NET) ...... + 0 + 0 Land ...... ¥ 0 ¥ 0 Total Other Assets ...... + 0 + 0

Total Recognized Assets ...... = 213,225 = 159,661 Non-Recognized Assets: Total Investments and Special Funds ...... + 0 + 0

VerDate Mar<15>2010 17:12 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47104 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

TABLE 19—TOTAL SOURCES OF FUNDS, DISTRICT ONE—Continued

Area 1 Area 2

Total Non-Recognized Assets ...... = 0 = 0 Total Assets: Total Recognized Assets ...... 213,225 159,661 Total Non-Recognized Assets ...... + 0 + 0

Total Assets ...... = 213,225 = 159,661 Recognized Sources of Funds: Total Stockholder Equity ...... 213,225 159,661 Long-Term Debt ...... + 0 + 0 Current Notes Payable ...... + 0 + 0 Advances from Affiliated Companies ...... + 0 + 0 Long-Term Obligations—Capital Leases ...... + 0 + 0

Total Recognized Sources ...... = 213,225 = 159,661 Non-Recognized Sources of Funds: Pension Liability ...... 0 0 Other Non-Current Liabilities ...... + 0 + 0 Deferred Federal Income Taxes ...... + 0 + 0 Other Deferred Credits ...... + 0 + 0

Total Non-Recognized Sources ...... = 0 = 0 Total Sources of Funds: Total Recognized Sources ...... 213,225 159,661 Total Non-Recognized Sources ...... + 0 + 0

Total Sources of Funds ...... = 213,225 = 159,661

TABLE 20—TOTAL SOURCES OF FUNDS, DISTRICT TWO

Area 4 Area 5

Recognized Assets: Total Current Assets ...... $228,212 $515,150 Total Current Liabilities ...... ¥ 214,412 ¥ 484,000 Current Notes Payable ...... + 23,063 + 52,061 Total Property and Equipment (NET) ...... + 321,550 + 725,847 Land ...... ¥ 269,122 ¥ 607,500 Total Other Assets ...... + 0 + 0

Total Recognized Assets ...... = 89,290 = 201,559 Non-Recognized Assets: Total Investments and Special Funds ...... + 0 + 0

Total Non-Recognized Assets ...... = 0 = 0 Total Assets: Total Recognized Assets ...... 89,290 201,559 Total Non-Recognized Assets ...... + 0 + 0

Total Assets ...... = 89,290 = 201,559 Recognized Sources of Funds: Total Stockholder Equity ...... 53,061 119,778 Long-Term Debt ...... + 282,288 + 637,220 Current Notes Payable ...... + 23,063 + 52,061 Advances from Affiliated Companies ...... + 0 + 0 Long-Term Obligations—Capital Leases ...... + 0 + 0

Total Recognized Sources ...... = 358,413 = 809,058 Non-Recognized Sources of Funds: Pension Liability ...... 0 0 Other Non-Current Liabilities ...... + 0 + 0 Deferred Federal Income Taxes ...... + 0 + 0 Other Deferred Credits ...... + 0 + 0

Total Non-Recognized Sources ...... = 0 = 0 Total Sources of Funds: Total Recognized Sources ...... 358,413 809,058 Total Non-Recognized Sources ...... + 0 + 0

Total Sources of Funds ...... = 358,413 = 809,058

VerDate Mar<15>2010 18:28 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47105

TABLE 21—TOTAL SOURCES OF FUNDS, DISTRICT THREE

Area 6 Area 7 Area 8

Recognized Assets: Total Current Assets ...... $439,799 230,463 289,999 Total Current Liabilities ...... ¥ $61,507 ¥ 32,231 ¥ 40,557 Current Notes Payable ...... + $13,525 + 7,087 + 8,918 Total Property and Equipment ...... (NET) ...... + $42,019 + 22,019 + 27,707 Land ...... ¥ $0 ¥ 0 ¥ 0 Total Other Assets ...... + $343 + 180 + 227

Total Recognized Assets ...... = $434,180 = 227,518 = 286,293 Non-Recognized Assets: Total Investments and Special Funds ...... + 0 + 0 + 0

Total Non-Recognized Assets ...... = 0 = 0 = 0 Total Assets: Total Recognized Assets ...... 434,180 227,518 286,293 Total Non-Recognized Assets ...... + 0 + 0 + 0 Total Assets ...... = 434,180 = 227,518 = 286,293 Recognized Sources of Funds: Total Stockholder Equity ...... 417,721 218,893 275,441 Long-Term Debt ...... + 2,934 + 1,537 + 1,935 Current Notes Payable ...... + 13,525 + 7,087 + 8,918 Advances from Affiliated Companies ...... + 0 + 0 + 0 Long-Term Obligations—Capital Leases ...... + 0 + 0 + 0

Total Recognized Sources ...... = 434,180 = 227,518 = 286,293 Non-Recognized Sources of Funds: Pension Liability ...... 0 0 0 Other Non-Current Liabilities ...... + 0 + 0 + 0 Deferred Federal Income Taxes ...... + 0 + 0 + 0 Other Deferred Credits ...... + 0 + 0 + 0

Total Non-Recognized Sources ...... = 0 = 0 = 0 Total Sources of Funds: Total Recognized Sources ...... 434,180 227,518 286,293 Total Non-Recognized Sources ...... + 0 + 0 + 0

Total Sources of Funds ...... = 434,180 = 227,518 = 286,293

Tables 19–21 relate to the second part required to support pilotage operations) investment base for each association of the formula for calculating the exist for any of the pilot associations for equals its total recognized assets. Table investment base. The second part this year’s rulemaking, the ratio between 22 also expresses these results by area, establishes a ratio between recognized recognized sources of funds and total because area results will be needed in sources of funds and total sources of sources of funds is ‘‘1:1’’ (or a multiplier subsequent steps. funds. Since no non-recognized sources of ‘‘1’’) in all cases. Table 22 applies the of funds (sources we do not recognize as multiplier of ‘‘1,’’ and shows that the

TABLE 22—INVESTMENT BASE BY AREA AND DISTRICT

Total Recognized Multiplier District Area recognized sources of Total sources (ratio of Investment of funds ($) recognized to base ($) 1 assets ($) funds ($) total sources)

One ...... 1 213,225 213,225 213,225 1 213,225 2 159,661 159,661 159,661 1 159,661

Total ...... 372,886 Two 2 ...... 4 89,290 358,413 358,413 1 89,290 5 201,559 809,058 809,058 1 201,559

Total ...... 290,849 Three ...... 6 434,180 434,180 434,180 1 434,180 7 227,518 227,518 227,518 1 227,518 8 286,293 286,293 286,293 1 286,293

Total ...... 947,991 1 Note: ‘‘Investment base’’ = ‘‘Total recognized assets’’ × ‘‘Multiplier (ratio of recognized to total sources)’’

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47106 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

2 Note: The pilot associations that provide pilotage services in Districts One and Three operate as partnerships. The pilot association that pro- vides pilotage service for District Two operates as a corporation. Per table 20, Total Recognized Assets do not equal Total Sources of Funds due to the level of long-term debt in District Two.

Step 5: Determination of Target Rate preceding year’s average annual rate of Step 6: Adjustment Determination. of Return. We determine a market- return for new issues of high-grade The first sub-step in the adjustment equivalent return on investment (ROI) corporate securities. determination requires an initial that will be allowed for the recognized For 2010, the year preceding this year, calculation, applying a formula net capital invested in each association the allowed ROI was a little more than described in Appendix A. The formula by its members. We do not recognize 4.94 percent, based on the average rate uses the results from Steps 1, 2, 3, and capital that is unnecessary or of return that year on Moody’s AAA 4 to project the ROI that can be expected unreasonable for providing pilotage in each area, if no further adjustments services. There are no non-recognized corporate bonds which can be found at: http://research.stlouisfed.org/fred2/ are made. This calculation is shown in investments in this year’s calculations. Tables 23 through 25. The allowed ROI is based on the series/AAA/downloaddata?cid=119.

TABLE 23—PROJECTED ROI, AREAS IN DISTRICT ONE

Area 1 Area 2

Revenue (from step 3) ...... + $2,308,357 + $1,614,791 Operating Expenses (from step 1) ...... ¥ $451,691 ¥ $355,748 Pilot Compensation (from step 2) ...... ¥ $1,806,030 ¥ $1,104,304 Operating Profit/(Loss) ...... = $50,636 = $154,739 Interest Expense (from audits) ...... ¥ $0 ¥ $0 Earnings Before Tax ...... = $50,636 = $154,739 Federal Tax Allowance ...... ¥ $0 ¥ $0 Net Income ...... = $50,636 = $154,739 Return Element (Net Income + Interest) ...... $50,636 $154,739 Investment Base (from step 4) ...... ÷ $213,225 ÷ $159,661 Projected Return on Investment ...... = 0.24 = 0.97

TABLE 24—PROJECTED ROI, AREAS IN DISTRICT TWO

Area 4 Area 5

Revenue (from step 3) ...... + $1,310,549 + $2,600,490 Operating Expenses (from step 1) ...... ¥ $372,746 ¥ $705,685 Pilot Compensation (from step 2) ...... ¥ $883,443 ¥ $1,806,030 Operating Profit/(Loss) ...... = $54,360 = $88,775 Interest Expense (from audits) ...... ¥ $3,302 ¥ $7,455 Earnings Before Tax ...... = $51,058 = $81,321 Federal Tax Allowance ...... ¥ $2,210 ¥ $4,990 Net Income ...... = $48,847 = $76,331 Return Element (Net Income + Interest) ...... $52,150 $83,786 Investment Base (from step 4) ...... ÷ $89,290 ÷ $201,559 Projected Return on Investment ...... = 0.58 = 0.42

TABLE 25—PROJECTED ROI, AREAS IN DISTRICT THREE

Area 6 Area 7 Area 8

Revenue (from step 3) ...... + $2,227,555 + $1,565,906 + $1,811,863 Operating Expenses (from step 1) ...... ¥ $576,969 ¥ $302,345 ¥ $380,448 Pilot Compensation (from step 2) ...... ¥ $1,546,026 ¥ $1,204,020 ¥ $1,325,165 Operating Profit/(Loss) ...... = $104,560 = $59,542 = $106,250 Interest Expense (from audits) ...... ¥ $2,417 ¥ $1,267 ¥ $1,594 Earnings Before Tax ...... = $102,143 = $58,275 = $104,656 Federal Tax Allowance ...... ¥ $0 ¥ $0 ¥ $0 Net Income ...... = $102,143 = $58,275 = $104,656 Return Element (Net Income + Interest) ...... $104,560 $59,542 $106,250 Investment Base (from step 4) ...... ÷ $434,180 ÷ $227,518 ÷ $286,293 Projected Return on Investment ...... = 0.24 = 0.26 = 0.37

The second sub-step required for Step (approximately 4.94 percent) we necessary. Table 26 shows this 6 compares the results of Tables 23 obtained in Step 5 to determine if an comparison for each area. through 25 with the target ROI adjustment to the base pilotage rate is

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47107

TABLE 26—COMPARISON OF PROJECTED ROI AND TARGET ROI, BY AREA1

Area 1 Area 2 Area 4 Area 5 Area 6 Area 7 Area 8 Southeast St. Lawrence Lake Ontario Lake Erie shoal to Port Lakes Huron St. Mary’s Lake River Huron, MI and Michigan River Superior

Projected return on in- vestment ...... 0.237 0.969 0.584 0.416 0.241 0.262 0.371 Target return on invest- ment ...... 0.049 0.049 0.049 0.049 0.049 0.049 0.049 Difference in return on investment ...... 0.188 0.920 0.535 0.366 0.191 0.212 0.322 1 Note: Decimalization and rounding of the target ROI affects the display in this table but does not affect our calculations, which are based on the actual figure.

Because Table 26 shows a significant revenues that are needed to make the Step 4, multiplying it by the target ROI difference between the projected and target return on investment equal to the from Step 5, and applies the result to target ROIs, an adjustment to the base projected return on investment. This the operating expenses and target pilot pilotage rates is necessary. Step 6 now calculation is shown in Table 27. It compensation determined in Steps 1 requires us to determine the pilotage adjusts the investment base we used in and 2.

TABLE 27—REVENUE NEEDED TO RECOVER TARGET ROI, BY AREA

Investment Operating Target pilot base (step Pilotage area expenses compensation 4) × 4.94% Federal tax Revenue (step 1) (step 2) (target ROI allowance needed step 5)

AREA 1 (Designated Waters) ...... $451,691 + $1,806,030 + $10,540 + = $2,268,262 AREA 2 (Undesignated Waters) ...... 355,748 + 1,104,304 + 7,893 + = 1,467,944 AREA 4 (Undesignated Waters) ...... 372,746 + 883,443 + 4,414 + $2,210 = 1,262,813 AREA 5 (Designated Waters) ...... 705,685 + 1,806,030 + 9,964 + 4,990 = 2,526,668 AREA 6 (Undesignated Waters) ...... 576,969 + 1,546,026 + 21,463 + = 2,144,458 AREA 7 (Designated Waters) ...... 302,345 + 1,204,020 + 11,247 + = 1,517,612 AREA 8 (Undesignated Waters) ...... 380,448 + 1,325,165 + 14,152 + = 1,719,765

Total ...... 3,145,632 + 9,675,016.97 + 79,673 + 7,200 = 12,907,522

The ‘‘revenue needed’’ column of calculations by rerunning the first part 23 through 25. Tables 28 through 30 Table 27 is less than the revenue we of Step 6, using the ‘‘revenue needed’’ show that attaining the Table 27 projected in Table 18. For purposes of from Table 27 instead of the Table 18 ‘‘revenue needed’’ is sufficient to transparency, we verify Table 27’s revenue projections we used in Tables recover target ROI.

TABLE 28—BALANCING REVENUE NEEDED AND TARGET ROI, DISTRICT ONE

Area 1 Area 2

Revenue Needed ...... + $2,268,262 + $1,467,944 Operating Expenses (from step 1) ...... ¥ $451,691 ¥ $355,748 Pilot Compensation (from step 2) ...... ¥ $1,806,030 ¥ $1,104,304 Operating Profit/(Loss) ...... = $10,540 = $7,893 Interest Expense (from audits) ...... ¥ $0 ¥ $0 Earnings Before Tax ...... = $10,540 = $7,893 Federal Tax Allowance ...... ¥ $0 ¥ $0 Net Income ...... = $10,540 = $7,893 Return Element (Net Income + Interest) ...... $10,540 $7,893 Investment Base (from step 4) ...... ÷ $213,225 ÷ $159,661 Return on Investment ...... = 0.0494 = 0.0494

TABLE 29—BALANCING REVENUE NEEDED AND TARGET ROI, DISTRICT TWO

Area 4 Area 5

Revenue Needed ...... + $1,262,813 + $2,526,668 Operating Expenses (from step 1) ...... ¥ $372,746 ¥ $705,685 Pilot Compensation (from step 2) ...... ¥ $883,443 ¥ $1,806,030 Operating Profit/(Loss) ...... = $6,624 = $14,953 Interest Expense (from audits) ...... ¥ $3,302 ¥ $7,455

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47108 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

TABLE 29—BALANCING REVENUE NEEDED AND TARGET ROI, DISTRICT TWO—Continued

Area 4 Area 5

Earnings Before Tax ...... = $3,322 = $7,499 Federal Tax Allowance ...... ¥ $2,210 ¥ $4,990 Net Income ...... = $1,112 = $2,509 Return Element (Net Income + Interest) ...... $4,414 $9,964 Investment Base (from step 4) ...... ÷ $89,290 ÷ $201,559 Return on Investment ...... = 0.0494 = 0.0494

TABLE 30—BALANCING REVENUE NEEDED AND TARGET ROI, DISTRICT THREE

Area 6 Area 7 Area 8

Revenue Needed ...... + $2,144,458 + $1,517,612 + $1,719,765 Operating Expenses (from step 1) ...... ¥ $576,969 ¥ $302,345 ¥ $380,448 Pilot Compensation (from step 2) ...... ¥ $1,546,026 ¥ $1,204,020 ¥ $1,325,165 Operating Profit/(Loss) ...... = $21,463 = $11,247 = $14,152 Interest Expense (from audits) ...... ¥ $2,417 ¥ $1,267 ¥ $1,594 Earnings Before Tax ...... = $19,046 = $9,980 = $12,558 Federal Tax Allowance ...... ¥ $0 ¥ $0 ¥ $0 Net Income ...... = $19,046 = $9,980 = $12,558 Return Element (Net Income + Interest) ...... $21,463 $11,247 $14,152 Investment Base (from step 4) ...... ÷ $434,180 ÷ $227,518 ÷ $286,293 Return on Investment ...... = 0.0494 = 0.0494 = 0.0494

Step 7: Adjustment of Pilotage Rates. supportable circumstances, we calculate 3 revenue projection (Table 18), to give Finally, and subject to negotiation with rate adjustments by dividing the Step 6 us a rate multiplier for each area. Tables Canada or adjustment for other revenue needed (Table 27) by the Step 31 through 33 show these calculations.

TABLE 31—RATE MULTIPLIER, AREAS IN DISTRICT ONE

Area 1 Ratemaking projections St. Lawrence Area 2 River Lake Ontario

Revenue Needed (from step 6) ...... $2,268,262 $1,467,944 Revenue (from step 3) ...... ÷ $2,308,357 ÷ $1,614,791 Rate Multiplier ...... = 0.983 = 0.909

TABLE 32—RATE MULTIPLIER, AREAS IN DISTRICT TWO

Area 5 Southeast Ratemaking projections Area 4 shoal to Lake Erie Port Huron, MI

Revenue Needed (from step 6) ...... $1,262,813 $2,526,668 Revenue (from step 3) ...... ÷ $1,310,549 ÷ $2,600,490 Rate Multiplier ...... = 0.964 = 0.972

TABLE 33—RATE MULTIPLIER, AREAS IN DISTRICT THREE

Area 6 Lakes Area 7 Area 8 Ratemaking projections Huron and St. Mary’s Lake Superior Michigan River

Revenue Needed (from step 6) ...... $2,144,458 $1,517,612 $1,719,765 Revenue (from step 3) ...... ÷ $2,227,555 ÷ $1,565,906 ÷ $1,811,863 Rate Multiplier ...... = 0.963 = 0.969 = 0.949

We calculate a rate multiplier for Table 27) by total projected revenue in our 2011 final rule, by the rate adjusting the basic rates and charges (Step 3 & 3A, Table 18). Our proposed multiplier shown as the result of our described in 46 CFR 401.420 and rate changes for 46 CFR 401.420 and calculation in Table 34. 401.428 and applicable in all Areas. We 401.428 reflect the multiplication of the divide total revenue needed (Step 6, rates we established for those sections

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47109

TABLE 34—RATE MULTIPLIER FOR BASIC RATES AND CHARGES IN 46 CFR 401.420 AND 401.428

Ratemaking projections

Total revenue needed (from step 6) ...... $12,907,522 Total revenue (from step 3) ...... ÷ $13,439,512 Rate Multiplier ...... = 0.960

We multiply the existing rates we rate multipliers from Tables 31 through changes we propose for 2012. Tables 35 established in our 2011 final rule by the 33, to calculate the Area by Area rate through 37 show these calculations.

TABLE 35—PROPOSED ADJUSTMENT OF PILOTAGE RATES, AREAS IN DISTRICT ONE

Adjusted 2011 Rate Rate rate multiplier for 2012

Area 1—St. Lawrence River: Basic Pilotage ...... $18.36/km, × 0.983 = $18.04/km, 32.50/mi 31.94 Each lock transited ...... 407 × 0.983 = 400 Harbor movage ...... 1,333 × 0.983 = 1,310 Minimum basic rate, St. Lawrence River ...... 889 × 0.983 = 874 Maximum rate, through trip ...... 3,901 × 0.983 = 3,833 Area 2—Lake Ontario: 6 hour period ...... 893 × 0.909 = 812 Docking or undocking ...... 852 × 0.909 = 775

TABLE 36—PROPOSED ADJUSTMENT OF PILOTAGE RATES, AREAS IN DISTRICT TWO

Adjusted 2011 Rate Rate rate for multiplier 2012

Area 4—Lake Erie: 6 hour period ...... $791 × 0.964 = $762 Docking or undocking ...... 609 × 0.964 = 587 Any point on Niagara River below Black Rock Lock ...... 1,554 × 0.964 = 1,497 Area 5—Southeast Shoal to Port Huron, MI between any point on or in: Toledo or any point on Lake Erie W. of Southeast Shoal & Detroit River ...... 3,102 × 0.972 = 3,014 Toledo or any point on Lake Erie W. of Southeast Shoal & Detroit Pilot Boat ...... 2,389 × 0.972 = 2,321 Port Huron Change Point & Southeast Shoal (when pilots are not changed at the Detroit Pilot Boat) ...... 4,162 × 0.972 = 4,044 Port Huron Change Point & Toledo or any point on Lake Erie W. of Southeast Shoal (when pilots are not changed at the Detroit Pilot Boat) ...... 4,821 × 0.972 = 4,684 Port Huron Change Point & Detroit River ...... 3,126 × 0.972 = 3,037 Port Huron Change Point & Detroit Pilot Boat ...... 2,432 × 0.972 = 2,363 Port Huron Change Point & St. Clair River ...... 1,729 × 0.972 = 1,680 St. Clair River ...... 1,412 × 0.972 = 1,372 St. Clair River & Southeast Shoal (when pilots are not changed at the Detroit Pilot Boat) ...... 4,162 × 0.972 = 4,044 St. Clair River & Detroit River/Detroit Pilot Boat ...... 3,126 × 0.972 = 3,037 Detroit, Windsor, or Detroit River ...... 1,412 × 0.972 = 1,372 Detroit, Windsor, or Detroit River & Southeast Shoal ...... 2,389 × 0.972 = 2,321 Detroit, Windsor, or Detroit River & Toledo or any point on Lake Erie W. of South- east Shoal ...... 3,102 × 0.972 = 3,014 Detroit, Windsor, or Detroit River & St. Clair River ...... 3,126 × 0.972 = 3,037 Detroit Pilot Boat & Southeast Shoal ...... 1,729 × 0.972 = 1,680

TABLE 37—PROPOSED ADJUSTMENT OF PILOTAGE RATES, AREAS IN DISTRICT THREE

Adjusted 2011 Rate rate for Rate iplier 2012

Area 6—Lakes Huron and Michigan: 6 hour period ...... $688 × 0.963 = $662 Docking or undocking ...... 653 × 0.963 = 629 Area 7—St. Mary’s River between any point on or in: Gros Cap & De Tour ...... 2,650 × 0.969 = 2,568 Algoma Steel Corp. Wharf, Sault Ste. Marie, Ont. & De Tour ...... 2,650 × 0.969 = 2,568 Algoma Steel Corp. Wharf, Sault Ste. Marie, Ont. & Gros Cap ...... 998 × 0.969 = 967 Any point in Sault St. Marie, Ont., except the Algoma Steel Corp. Wharf & De Tour ...... 2,221 × 0.969 = 2,153

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47110 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

TABLE 37—PROPOSED ADJUSTMENT OF PILOTAGE RATES, AREAS IN DISTRICT THREE—Continued

Adjusted 2011 Rate rate for Rate iplier 2012

Any point in Sault St. Marie, Ont., except the Algoma Steel Corp. Wharf & Gros Cap ...... 998 × 0.969 = 967 Sault Ste. Marie, MI & De Tour ...... 2,221 × 0.969 = 2,153 Sault Ste. Marie, MI & Gros Cap ...... 998 × 0.969 = 967 Harbor movage ...... 998 × 0.969 = 967 Area 8—Lake Superior: 6 hour period ...... 608 × 0.949 = 577 $578 x 0.949 = $549

VI. Regulatory Analyses savings to shippers of approximately $1 services. However, this election is We developed this proposed rule after million across all three districts. voluntary and does not affect the Coast considering numerous statutes and The proposed rule would apply the 46 Guard’s calculation of the rate and is not executive orders related to rulemaking. CFR part 404, Appendix A, full a part of our estimated national cost to Below we summarize our analyses ratemaking methodology and decrease shippers. Coast Guard sampling of pilot based on 13 of these statutes or Great Lakes pilotage rates, on average, data suggests there are very few U.S. executive orders. approximately 4 percent overall from domestic vessels, without registry and the current rates set in the 2011 final operating only in the Great Lakes that A. Executive Order 12866 and Executive rule. The Appendix A methodology is voluntarily purchase pilotage services. Order 13563 discussed and applied in detail in Part We used 2008–2010 vessel arrival Executive Orders 13563 and 12866 V of this preamble. Among other factors data from the Coast Guard’s Marine direct agencies to assess the costs and described in Part V, it reflects audited Information for Safety and Law benefits of available regulatory 2009 financial data from the pilotage Enforcement (MISLE) system to estimate alternatives and, if regulation is associations (the most recent year the average annual number of vessels necessary, to select regulatory available for auditing), projected affected by the rate adjustment to be 204 approaches that maximize net benefits association expenses, and regional vessels that journey into the Great Lakes (including potential economic, inflation or deflation. The last full system. These vessels entered the Great environmental, public health and safety Appendix A ratemaking was concluded Lakes by transiting through or in part of effects, distributive impacts, and in 2006 and used financial data from the at least one of the three pilotage equity). Executive Order 13563 2002 base accounting year. The last Districts before leaving the Great Lakes emphasizes the importance of annual rate review, conducted under 46 system. These vessels often make more quantifying both costs and benefits, of CFR part 404, Appendix C, was than one distinct stop, docking, loading, reducing costs, of harmonizing rules, completed early in 2011. and unloading at facilities in Great and of promoting flexibility. This rule is In general, we expect an increase in Lakes ports. Of the total trips for the 204 not a ‘‘significant regulatory action’’ pilotage rates for a certain area to result vessels, there were approximately 319 under section 3(f) of Executive Order in additional costs for shippers using annual U.S. port arrivals before the 12866 and has not been reviewed by the pilotage services in that area, while a vessels left the Great Lakes system, Office of Management and Budget. decrease would result in a cost based on 2008–2010 vessel data from A draft Regulatory Assessment reduction or savings for shippers in that MISLE. follows. area. The shippers affected by these rate The impact of the rate adjustment to The Coast Guard is required to review adjustments are those owners and shippers is estimated from the District and adjust pilotage rates on the Great operators of domestic vessels operating pilotage revenues. These revenues Lakes annually. See Parts III and IV of on register (employed in foreign trade) represent the direct and indirect costs this preamble for detailed discussions of and owners and operators of foreign (‘‘economic costs’’) that shippers must the Coast Guard’s legal basis and vessels on a route within the Great pay for pilotage services. The Coast purpose for this rulemaking and for Lakes system. These owners and Guard sets rates so that revenues equal background information on Great Lakes operators must have pilots or pilotage the estimated cost of pilotage. pilotage ratemaking. Based on our service as required by 46 U.S.C. 9302. We estimate the additional impact annual review for this proposed There is no minimum tonnage limit or (costs or savings) of the rate adjustment rulemaking, we are adjusting the exemption for these vessels. The Coast in this proposed rule to be the pilotage rates for the 2012 shipping Guard’s interpretation is that the statute difference between the total projected season to generate sufficient revenue to applies only to commercial vessels and revenue needed to cover costs in 2012 cover allowable expenses, target pilot not to recreational vessels. based on the 2011 rate adjustment and compensation, and returns on Owners and operators of other vessels the total projected revenue needed to investment. The rate adjustments in this that are not affected by this rule, such cover costs in 2012 as set forth in this proposed rule would, if codified, lead to as recreational boats and vessels only proposed rule. Table 38 details a cost savings in all seven areas and all operating within the Great Lakes additional costs or savings by area and three districts with an estimated cost system, may elect to purchase pilotage district.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47111

TABLE 38—RATE ADJUSTMENT AND ADDITIONAL IMPACT OF THE PROPOSED RULE BY AREA AND DISTRICT [$U.S.; Non-discounted]

Additional Projected Projected costs or revenue revenue savings of needed needed * ** this proposed in 2011 in 2012 rule

Area 1 ...... $2,348,516 $2,268,262 ($80,255) Area 2 ...... 1,689,246 1,467,944 (221,302)

Total, District One ...... 4,037,763 3,736,206 (301,557)

Area 4 ...... 1,436,140 1,262,813 (173,326) Area 5 ...... 2,649,876 2,526,668 (123,208)

Total, District Two ...... 4,086,016 3,789,481 (296,534)

Area 6 ...... 2,311,006 2,144,458 (166,548) Area 7 ...... 1,614,974 1,517,612 (97,362) Area 8 ...... 1,904,237 1,719,765 (184,472)

Total, District Three ...... 5,830,218 5,381,835 (448,383) * These 2011 estimates are detailed in Table 16 of the 2011 final rule (76 FR 6351). ** These 2012 estimates are detailed in Table 27 of this rulemaking. Some values may not total due to rounding. ‘‘Additional Revenue or Cost of this Rulemaking’’ = ‘‘Revenue needed in 2012’’ minus; ‘‘Revenue needed in 2011.’’

After applying the rate change in this overall impact of the proposed rule NAICS codes for freight transportation: proposed rule, the resulting difference would be a cost savings to shippers of 483111—Deep Sea Freight between the projected revenue in 2011 approximately $1 million across all Transportation, 483113—Coastal and and the projected revenue in 2012 is the three districts. Great Lakes Freight Transportation, and annual impact to shippers from this The effects of a rate adjustment on 483211—Inland Water Freight rule. This figure would be equivalent to costs and savings vary by year and area. Transportation. According to the Small the total additional payments or savings A decrease in projected expenses for Business Administration’s definition, a that shippers would incur for pilotage individual areas or districts is common U.S. company with these NAICS codes services from this proposed rule. As in past pilotage rate adjustments. Most and employing less than 500 employees discussed earlier, we consider a recently, in the 2011 ratemaking, is considered a small entity. reduction in payments to be a cost District Three experienced a decrease in For the proposed rule, we reviewed savings. projected expenses due to an adjustment recent company size and ownership The impact of the rate adjustment in in bridge hours from the 2010 final rule; data from 2008–2010 Coast Guard this proposed rule to shippers varies by that led to a savings for that district and MISLE data and business revenue and area and district. The rate adjustments yielded a net savings for the system. size data provided by publicly available would lead to a cost savings in all seven This proposed rulemaking would sources such as MANTA and Reference areas and all three districts, with allow the U.S. Coast Guard to meet the USA. We found that large, mostly affected shippers operating in District statutory requirements to review the foreign-owned, shipping conglomerates One, District Two, and District Three rates for pilotage services on the Great or their subsidiaries owned or operated experiencing savings of $302,000, Lakes—ensuring proper pilot all vessels engaged in foreign trade on $297,000, and $448,000, respectively compensation. the Great Lakes. We assume that new (values rounded). To calculate an exact industry entrants would be comparable B. Small Entities cost or savings per vessel is difficult in ownership and size to these shippers. because of the variation in vessel types, Under the Regulatory Flexibility Act There are three U.S. entities affected routes, port arrivals, commodity (5 U.S.C. 601–612), we have considered by the proposed rule that receive carriage, time of season, conditions whether this proposed rule would have revenue from pilotage services. These during navigation, and preferences for a significant economic impact on a are the three pilot associations that the extent of pilotage services on substantial number of small entities. provide and manage pilotage services designated and undesignated portions of The term ‘‘small entities’’ comprises within the Great Lakes districts. Two of the Great Lakes system. Some owners small businesses, not-for-profit the associations operate as partnerships and operators would pay more and organizations that are independently and one operates as a corporation. These some would pay less depending on the owned and operated and are not associations are designated the same distance and port arrivals of their dominant in their fields, and NAICS industry classification and small vessels’ trips. However, the additional governmental jurisdictions with entity size standards described above, savings reported above does capture the populations of less than 50,000 people. but they have far fewer than 500 adjustment the shippers would We expect entities affected by the employees—approximately 65 total experience as a result of the rate proposed rule would be classified under employees combined. We expect no adjustment in this proposed rule. As the North American Industry adverse impact to these entities from Table 38 indicates, shippers operating Classification System (NAICS) code this proposed rule because all in all areas would experience an annual subsector 483—Water Transportation, associations receive enough revenue to savings due to this rulemaking. The which includes the following 6-digit balance the projected expenses

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47112 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

associated with the projected number of E. Federalism power and responsibilities between the Federal Government and Indian tribes. bridge hours and pilots. A rule has implications for federalism Therefore, the Coast Guard certifies under Executive Order 13132, K. Energy Effects under 5 U.S.C. 605(b) that this proposed Federalism, if it has a substantial direct We have analyzed this proposed rule rule would not have a significant effect on State or local governments and under Executive Order 13211, Actions economic impact on a substantial would either preempt State law or Concerning Regulations That number of small entities. If you think impose a substantial direct cost of Significantly Affect Energy Supply, that your business, organization, or compliance on them. We have analyzed Distribution, or Use. We have governmental jurisdiction qualifies as a this proposed rule under that Order and determined that it is not a ‘‘significant small entity and that this proposed rule have determined that it does not have energy action’’ under that order because would have a significant economic implications for federalism because it is not a ‘‘significant regulatory action’’ impact on it, please submit a comment States are expressly prohibited by 46 under Executive Order 12866 and is not to the Docket Management Facility at U.S.C. 9306 from regulating pilotage on likely to have a significant adverse effect the address under ADDRESSES. In your the Great Lakes. on the supply, distribution, or use of comment, explain why you think it F. Unfunded Mandates Reform Act energy. The Administrator of the Office qualifies, as well as how and to what of Information and Regulatory Affairs degree this proposed rule would The Unfunded Mandates Reform Act has not designated it as a significant economically affect it. 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 C. Assistance for Small Entities their discretionary regulatory actions. In under Executive Order 13211. particular, the Act addresses actions Under section 213(a) of the Small that may result in the expenditure by a L. Technical Standards Business Regulatory Enforcement State, local, or tribal government, in the The National Technology Transfer Fairness Act of 1996 (Pub. L. 104–121), aggregate, or by the private sector of and Advancement Act (NTTAA) (15 we want to assist small entities in $100,000,000 (adjusted for inflation) or U.S.C. 272 note) directs agencies to use understanding this proposed rule so that more in any one year. Though this voluntary consensus standards in their they can better evaluate its effects on proposed rule would not result in such regulatory activities unless the agency them and participate in the rulemaking. expenditure, we do discuss the effects of provides Congress, through the Office of If the proposed rule would affect your this rule elsewhere in this preamble. Management and Budget, with an small business, organization, or explanation of why using these G. Taking of Private Property governmental jurisdiction and you have standards would be inconsistent with questions concerning its provisions or This proposed rule would not cause a applicable law or otherwise impractical. options for compliance, please consult taking of private property or otherwise Voluntary consensus standards are Mr. Todd Haviland, Management & have taking implications under technical standards (e.g., specifications Program Analyst, Office of Great Lakes Executive Order 12630, Governmental of materials, performance, design, or Pilotage, Commandant (CG–5522), Coast Actions and Interference with operation; test methods; sampling Guard; telephone 202–372–2037, e-mail Constitutionally Protected Property procedures; and related management [email protected], or fax 202– Rights. systems practices) that are developed or 372–1909. The Coast Guard will not adopted by voluntary consensus H. Civil Justice Reform retaliate against small entities that standards bodies. This proposed rule question or complain about this rule or This proposed rule meets applicable does not use technical standards. any policy or action of the Coast Guard. standards in sections 3(a) and 3(b)(2) of Therefore, we did not consider the use Small businesses may send comments Executive Order 12988, Civil Justice of voluntary consensus standards. Reform, to minimize litigation, on the actions of Federal employees M. Environment who enforce, or otherwise determine eliminate ambiguity, and reduce We have analyzed this proposed rule compliance with, Federal regulations to burden. under Department of Homeland the Small Business and Agriculture I. Protection of Children Security Management Directive 023–01 Regulatory Enforcement Ombudsman We have analyzed this proposed rule and Commandant Instruction and the Regional Small Business under Executive Order 13045, M16475.lD, which guide the Coast Regulatory Fairness Boards. The Protection of Children from Guard in complying with the National Ombudsman evaluates these actions Environmental Health Risks and Safety Environmental Policy Act of 1969 annually and rates each agency’s Risks. This rule is not an economically (NEPA) (42 U.S.C. 4321–4370f), and responsiveness to small business. If you significant rule and would not create an have made a preliminary determination wish to comment on actions by environmental risk to health or risk to that this action is one of a category of employees of the Coast Guard, call safety that might disproportionately actions that do not individually or 1–888–REG–FAIR (1–888–734–3247). affect children. cumulatively have a significant effect on D. Collection of Information the human environment. A preliminary J. Indian Tribal Governments environmental analysis checklist This proposed rule would call for no This proposed rule does not have supporting this determination is new collection of information under the tribal implications under Executive available in the docket where indicated Paperwork Reduction Act of 1995 (44 Order 13175, Consultation and under the ‘‘Public Participation and U.S.C. 3501–3520). This rule does not Coordination with Indian Tribal Request for Comments’’ section of this change the burden in the collection Governments, because it would not have preamble. This rule is categorically currently approved by the Office of a substantial direct effect on one or excluded under section 2.B.2, figure 2– Management and Budget under OMB more Indian tribes, on the relationship 1, paragraph (34)(a) of the Instruction. Control Number 1625–0086, Great Lakes between the Federal Government and Paragraph 34(a) pertains to minor Pilotage Methodology. Indian tribes, or on the distribution of regulatory changes that are editorial or

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47113

procedural in nature. This proposed Authority: 46 U.S.C. 2104(a), 6101, 7701, (b) Area 2 (Undesignated Waters): rule adjusts rates in accordance with 8105, 9303, 9304; Department of Homeland applicable statutory and regulatory Security Delegation No. 0170.1; 46 CFR Lake 401.105 also issued under the authority of Service Ontario mandates. We seek any comments or 44 U.S.C. 3507. information that may lead to the discovery of a significant environmental 2. In § 401.405, revise paragraphs (a) Six-Hour Period ...... $812 Docking or Undocking ...... 775 impact from this proposed rule. and (b) to read as follows: List of Subjects in 46 CFR Part 401 § 401.405 Basic rates and charges on the St. Lawrence River and Lake Ontario. 3. In § 401.407, revise paragraphs (a) Administrative practice and and (b) to read as follows: * * * * * procedure, Great Lakes, Navigation (a) Area 1 (Designated Waters): (water), Penalties, Reporting and § 401.407 Basic rates and charges on Lake recordkeeping requirements, Seamen. Erie and the navigable waters from Service St. Lawrence River Southeast Shoal to Port Huron, MI. For the reasons discussed in the preamble, the Coast Guard proposes to Basic Pilotage ...... $18.04 per kilometer * * * * * amend 46 CFR part 401 as follows: or $31.94 per mile.1 (a) Area 4 (Undesignated Waters): Each Lock Transited $400.1 PART 401—GREAT LAKES PILOTAGE Harbor Movage ...... $1,310 1 REGULATIONS 1 The minimum basic rate for assignment of a pilot in the St. Lawrence River is $874, and 1. The authority citation for part 401 the maximum basic rate for a through trip is continues to read as follows: $3,833.

Lake Erie (East of Service Southeast Buffalo Shoal)

Six-Hour Period ...... $762 $762 Docking or Undocking ...... 587 587 Any Point on the Niagara River ...... Below the Black Rock Lock ...... N/A 1,497

(b) Area 5 (Designated Waters):

Toledo or any point on Any point on or in Southeast Lake Erie west Detroit River Detroit pilot St. Clair shoal of southeast boat River shoal

Toledo or any port on Lake Erie west of Southeast Shoal ...... $2,321 $1,372 $3,014 $2,321 N/A Port Huron Change Point ...... 1 4,044 1 4,684 3,037 2,363 1,680 St. Clair River ...... 1 4,044 N/A 3,037 3,037 1,372 Detroit or Windsor or the Detroit River ...... 2,321 3,014 1,372 N/A 3,037 Detroit Pilot Boat ...... 1,680 2,321 N/A N/A 3,037 1 When pilots are not changed at the Detroit Pilot Boat.

4. In § 401.410, revise paragraphs (a), (a) Area 6 (Undesignated Waters): Lakes Huron (b), and (c) to read as follows: Service and Michigan Lakes Huron § 401.410 Basic rates and charges on Service and Michigan Docking or Undocking ...... 629 Lakes Huron, Michigan, and Superior, and the St Mary’s River. Six-Hour Period ...... $662 (b) Area 7 (Designated Waters): * * * * *

Area De tour Gros cap Any harbor

Gros Cap ...... $2,568 N/A N/A Algoma Steel Corporation Wharf at Sault Ste. Marie, Ontario ...... 2,568 $967 N/A Any point in Sault Ste. Marie, Ontario, except the Algoma Steel Corporation Wharf ...... 2,153 967 N/A Sault Ste. Marie, MI ...... 2,153 967 N/A Harbor Movage ...... N/A N/A $967

(c) Area 8 (Undesignated Waters): Lake Lake Service Superior Service Superior

Six-Hour Period ...... $577 Docking or Undocking ...... 549

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47114 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

§ 401.420 [Amended] to outbound-only interconnected VoIP way voice communications; (2) requires 5. Amend § 401.420 as follows: service providers the same 911 a broadband connection from the user’s a. In paragraph (a), remove the text requirements that have applied to other location; (3) requires Internet protocol- ‘‘$127’’ and add, in its place, the text interconnected VoIP service providers compatible customer premises ‘‘$122’’; and remove the text ‘‘$1,989’’ since 2005. equipment (CPE); and (4) permits users and add, in its place, the text ‘‘$1,910’’; The Commission seeks comment on generally to receive calls that originate b. In paragraph (b), remove the text whether our proposal to amend the on the PSTN and to terminate calls to ‘‘$127’’ and add, in its place, the text definition of interconnected VoIP the PSTN. The Commission established ‘‘$122’’; and remove the text ‘‘$1,989’’ service for 911 purposes has any impact requirements for these providers to and add, in its place, the text ‘‘$1,910’’; on our interpretation of certain statutes provide 911 services to their customers. and that reference the Commission’s existing Since the Commission’s adoption of c. In paragraph (c)(1), remove the text definition of interconnected VoIP these requirements, Congress has ‘‘$751’’ and add, in its place, the text service. codified them and has also given the Commission the discretion to modify ‘‘$721’’; and in paragraph (c)(3), remove DATES: Submit comments on or before the text ‘‘$127’’ and add, in its place, the October 3, 2011. Submit reply them ‘‘from time to time.’’ 2. In the Location Accuracy NOI, the text ‘‘$122’’, and remove the text comments on or before November 2, Commission noted that the ‘‘$1,989’’ and add, in its place, the text 2011. ‘‘$1,910’’. Commission’s VoIP 911 rules have thus ADDRESSES: You may submit comments, far been limited to providers of § 401.428 [Amended] identified by PS Docket No. 07–114; GN interconnected VoIP services as defined 6. In § 401.428, remove the text Docket No. 11–117; WC Docket No. 05– above. The Commission also noted, ‘‘$766’’ and add, in its place, the text 196, by any of the following methods: however, that since these rules were • ‘‘$736’’. Federal Communications adopted, there has been a significant Commission’s Web Site: http:// increase in the availability and use of Dated: July 27, 2011. fjallfoss.fcc.gov/ecfs2/. Follow the portable VoIP services and applications Dana A. Goward, instructions for submitting comments. that do not meet one or more prongs of Director Marine Transportation Systems • People With Disabilities: Contact the interconnected VoIP service Management, U.S. Coast Guard. the FCC to request reasonable definition. In light of the increase in use [FR Doc. 2011–19746 Filed 8–3–11; 8:45 am] accommodations (accessible format of these services, the Commission BILLING CODE 9110–04–P documents, sign language interpreters, sought comment on several alternatives CART, etc.) by e-mail: [email protected] for expanding the scope of the VoIP 911 or phone: 202–418–0530 or TTY: 202– rules, including whether 911/E911 FEDERAL COMMUNICATIONS 418–0432. obligations should apply to (1) VoIP COMMISSION For detailed instructions for services that enable users to place submitting comments and additional outbound calls that terminate on the 47 CFR Part 9 information on the rulemaking process, PSTN but not to receive inbound calls SUPPLEMENTARY INFORMATION [PS Docket No. 07–114; GN Docket No. 11– see the from the PSTN, and (2) VoIP services 117; WC Docket No. 05–196; FCC 11–107] section of this document. that enable users to receive inbound FOR FURTHER INFORMATION CONTACT: calls from the PSTN but not to make Wireless E911 Location Accuracy Patrick Donovan, Attorney Advisor, outbound calls to the PSTN. Requirements; E911 Requirements for (202) 418–2413. 3. Comments. In response to the IP-Enabled Service Providers SUPPLEMENTARY INFORMATION: This is a Location Accuracy NOI, a number of summary of the Commission’s Second public safety entities argue that the AGENCY: Federal Communications Commission should impose 911 Commission. Further Notice of Proposed Rulemaking and Notice of Proposed Rulemaking in obligations on VoIP services that do not ACTION: Proposed rule. PS Docket No. 07–114, GN Docket No. meet the current definition of 11–117, WC Docket No. 05–196, FCC interconnected VoIP service. NENA SUMMARY: In this document, the Federal contends that consumers expect that 11–107, released on July 13, 2011. The Communications Commission (the they will be able to reach 911 from a full text of this document is available for Commission) proposes measures to VoIP telephone. NENA submits that it is public inspection during regular improve 911 availability and location ‘‘reasonable for consumers to expect business hours in the FCC Reference determination for users of that services which allow outbound Center, Room CY–A257, 445 12th Street, interconnected Voice over Internet calling to the PSTN will properly route SW., Washington, DC 20554, or online Protocol (VoIP) services. First, the calls to 9-1-1.’’ Further, Texas 9-1-1 at http://transition.fcc.gov/pshs/ Commission considers whether to apply Agencies contends that ‘‘vendors of services/911-services/. our 911 rules to ‘‘outbound-only’’ these services should be required to interconnected VoIP services, i.e., I. Second Further Notice of Proposed provide public education materials services that support outbound calls to Rulemaking related to 9-1-1 limitations and work the public switched telephone network diligently with public safety and access (PSTN) but not inbound voice calling A. Applying E911 Rules to Outbound- network provider[s] * * * to minimize from the PSTN. These services, which Only Interconnected VoIP Service confusion and potential adverse allow consumers to place IP-based Providers consequences to their end users.’’ outbound calls to any telephone 1. Background. In 2005, the 4. Some commercial commenters also number, have grown increasingly Commission first asserted regulatory support the view that changing popular in recent years. The authority over interconnected VoIP consumer expectations support Commission asks whether such services service providers for 911 purposes. In extending 911 requirements beyond the are likely to generate consumer the VoIP 911 Order, the Commission scope of VoIP providers covered by the expectations that they will support 911 defined interconnected VoIP service as existing rules. AT&T highlights that calling and consider whether to extend a service that (1) enables real-time, two- ‘‘the record suggests that consumers

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47115

expect that outbound, residential VoIP 2010 that it had 20 million users in the 10. If we were to extend 911 services that provide local calling United States. Skype also stated that it obligations to outbound-only capability will support E911.’’ Sprint had over 8 million paying users interconnected VoIP service providers, Nextel notes that ‘‘[m]any * * * new worldwide for its SkypeIn and should we also revise our definition of services can be viewed as a form of SkypeOut services and had domestic interconnected VoIP service? As an mobile phone service and, as such, revenues of over $100 million in 2009. initial matter, we seek comment on two should be treated in a similar way for A number of companies, such as Skype potential technical modifications to the purposes of 911.’’ TCS states that and Google Voice offer a variety of ‘‘one- definition of interconnected VoIP ‘‘[s]ome VoIP services that otherwise way’’ interconnected VoIP services that service. First, we seek comment on fully comply with [the interconnected enable inbound calls from the PSTN or whether we should modify the second VoIP service] definition are configured outbound calls to the PSTN, but not prong of the existing definition, which so as to offer only ‘‘one-way’’ (i.e., either both. requires a broadband voice connection in-bound or out-bound calling, but not 7. There are now well over 4.2 million from the user’s location. Some both) voice services to the PSTN.’’ TCS subscribers to one-way interconnected interconnected VoIP service providers characterizes this as a ‘‘loophole’’ that VoIP services, which was the number of have asserted that VoIP services that are encourages ‘‘product definition two-way interconnected VoIP capable of functioning over a dial-up arbitrage’’ and urges ‘‘either subscribers in 2005 when the FCC connection as well as a broadband Congressional action * * * or adopted the original interconnected connection fall outside this definition. clarification from the FCC that such VoIP 911 rules. Moreover, since 2005, a Since these services provide virtually services are included in § 9.3,’’ of the number of hardware products have been the same user experience, regardless of Commission’s rules. MobileTREC states introduced that support outbound-only the fact that they are in dial-up mode, that ‘‘since a consumer’s expectation is interconnected VoIP service and are we seek comment on whether the that all devices that have dial tone indistinguishable from traditional second prong should specify an would have 911 service, then any device landline or cordless phones in their ‘‘Internet connection,’’ rather than a with dial tone should have a 911 ability to place outbound calls. broadband connection, as the defining solution, including nomadic or mobile 8. Outbound-only interconnected feature. VoIP services such as MagicJack, Skype, VoIP service providers have also been 11. Second, we seek comment on Vonage, and Google Voice.’’ DASH marketing their services to businesses, whether we should modify the fourth believes that ‘‘the primary criteria the which generally require a higher grade prong of the existing definition to define Commission should apply in of quality and reliability than connectivity in terms of the ability to determining whether to impose 9-1-1 residential-based voice services. For connect calls to United States E.164 requirements on new products and example, since late 2008, Skype has telephone numbers rather than the services is the reasonable expectations been marketing several versions of its PSTN. Such a change could reflect the of the subscriber.’’ service to small, medium, and large fact that interconnected VoIP service 5. The VON Coalition, on the other businesses that use Session Initiation providers are not limited to using the hand, argues that ‘‘there is a real risk to Protocol-based PBX systems. In addition circuit-switched PSTN to connect or innovation if the Commission begins to to offering low cost rates for outbound receive telephone calls. Indeed, as blur the previously established clear calls, the service allows customers to networks evolve away from circuit- lines and expectations created in the purchase online numbers to receive switched technology, VoIP users are definition of interconnected VoIP * * * inbound calls. increasingly likely to place and receive to trigger 911 obligations on these 9. Outbound-Only Interconnected telephone calls in which the end-to-end innovative applications, products and VoIP Service. In light of increased transmission is entirely over IP-based services.’’ The VON Coalition also notes consumer access to and use of networks. By referencing E.164 that ‘‘certain IP-enabled services and outbound-only interconnected VoIP telephone numbers and eliminating devices, including non-interconnected services, we seek comment on whether reference to the PSTN, the definition of VoIP services, may not be technically to extend our 911 obligations to interconnected VoIP service might be capable of providing E911, because of outbound-only interconnected VoIP technically more accurate and avoid the difficulties in identifying the service providers to further the potential technical obsolescence. locations of users.’’ In addition, the achievement of long-established 12. Thus, we seek comment on VON Coalition argues that ‘‘to the extent regulatory goals to promote the safety of whether to extend 911 requirements to E911 or next generation 911 obligations life and property. We invite comment any service that (1) Enables real-time, are extended, it should be considered regarding consumers’ expectations for two-way voice communications; (2) only for those voice applications or being able to contact emergency requires an Internet connection from the offerings that are designed to provide personnel when using outbound-only user’s location; (3) requires Internet the essential qualities of a telephone interconnected VoIP services. What is protocol-compatible customer premises service which is the ability to call the likelihood that a consumer who equipment; and (4) permits users to anyone and receive a call from anyone needs to place an emergency call and is terminate calls to all or substantially all in the world.’’ unfamiliar with an outbound-only United States E.164 telephone numbers. 6. Discussion. When the Commission interconnected VoIP phone would Would such a new definition accurately adopted VoIP 911 requirements in 2005, expect it to have the ability to transmit reflect current and evolving consumer it recognized that the definition of a 911 call? Are warnings at the point of expectations and the needs of PSAPs interconnected VoIP service might sale regarding a consumer’s inability to and first responders? In the companion ‘‘need to expand as new VoIP services reach 911 using a particular outbound- Notice of Proposed Rulemaking, we seek increasingly substitute for traditional only interconnected VoIP service comment on whether a new definition, phone service.’’ Since 2005, there has effective? Is there a consumer were we to adopt one, should be used been a dramatic increase in the number expectation with respect to being able to for any regulatory purpose other than and popularity of VoIP services. For contact emergency personnel when 911 and on issues related to the example, Skype reported to the using an inbound-only interconnected changing the definition for 911 purposes Securities and Exchange Commission in VoIP service? only.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47116 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

13. We also seek comment on the cost 16. We seek comment on the computers and mobile devices, we and technical feasibility of extending appropriate manner to calculate the expect significant innovation to the Commission’s existing 911 benefits that would result from continue in the provision of voice requirements to outbound-only extending 911 service requirements to services over IP networks. Thus, we also interconnected VoIP service providers. outbound-only interconnected VoIP seek comment on whether there are In this regard, we seek comment on the services. These benefits may include voice services that are presently being ability of an outbound-only decreased response times for offered that would fall outside the scope interconnected VoIP service provider to emergencies; reductions in property of the proposed new definition for support callback capability. Does the damage, the severity of injuries and loss outbound-only interconnected VoIP fact that outbound-only interconnected of life; and the increase in the service for which consumers may have VoIP service providers have already probability of apprehending criminal a reasonable expectation of being able to implemented call-back mechanisms for suspects. We recognize that these contact 911. benefits will be tempered when non-emergency purposes mean that it B. Automatic Location Requirements for consumers have access to other would be feasible for an outbound-only Interconnected VoIP Services interconnected VoIP service provider to telecommunications services that support callback capability for already provide 911 service and may 20. Background. The Commission’s emergency purposes as well? If the increase when outbound-only rules currently do not require providers Commission were to extend existing 911 interconnected VoIP service use grows of portable interconnected VoIP service requirements to outbound-only in the future. Potential benefits may also to automatically provide location interconnected VoIP service providers, include less tangible and quantifiable information to PSAPs without the what would be an appropriate factors, such as an increased sense of customer’s active cooperation. In the timeframe for doing so? security. We seek comment on how Location Accuracy NPRM, the Commission tentatively concluded that 14. Would the costs for outbound- these intangibles should be accounted ‘‘to the extent that an interconnected only interconnected VoIP service for in any analysis. VoIP service may be used in more than providers to come into compliance with 17. We seek comment on the costs one location, providers must employ an these requirements be no greater, and and technical issues associated with automatic location technology that potentially be lower, than the costs that providing 911 services. These costs may meets the same accuracy standards that two-way interconnected VoIP service include hardware upgrades, software updates, customer service costs, the cost apply to those CMRS services.’’ The providers incurred when the of sending additional 911 calls, Location Accuracy NOI sought to Commission adopted its original VoIP decreased innovation and investment in refresh the record on this tentative 911 requirements in 2005? Has the services, market exit, liability concerns, conclusion. development since 2005 of mechanisms as well as other potential costs not 21. Specifically, in the Location to support VoIP 911 and the provision enumerated here. We seek comment on Accuracy NOI, the Commission sought of registered location information led to any changes to the proposed rules that comment on a range of questions related efficiencies that could reduce the cost could mitigate these cost factors while to automatic provision of location for outbound-only interconnected VoIP maintaining the goals of extending information for interconnected VoIP service providers to come into access to emergency services to users of services. The Commission sought compliance? Conversely, do outbound- outbound-only interconnected VoIP information on what advanced only interconnected VoIP services face services. We seek comment on how any technologies, if any, permit portable any additional costs due to technical two-way or outbound-only interconnected VoIP service providers challenges in transmitting 911 calls, interconnected VoIP service providers to provide ALI, whether portable providing call-back information, or that currently offer 911 service interconnected VoIP service providers using customer-generated location provision these services and ask for a had implemented any practices or information when compared to precise quantification of the initial and methods to provide ALI, and if not, bidirectional services? ongoing costs associated with what the Commission could do to 15. To establish the baseline from establishing 911 calling, as well as the facilitate the development of techniques which to calculate benefits and costs of number of subscribers that have utilized for automatically identifying the extending 911 service requirements to this feature. geographic location of users of this outbound-only interconnected VoIP 18. We seek further comment on any service. Further, the Commission sought service providers, we seek comment on potential costs that public safety comment on whether interconnected the number of firms and subscribers that personnel may incur if the Commission VoIP service providers should would be affected; the number of firms were to impose 911 obligations upon incorporate the ability to automatically that currently provide 911 service for outbound-only interconnected VoIP detect a user’s Internet connectivity, outbound-only interconnected VoIP service providers. For instance, identify a user’s location, and prompt a calls; the number of households and assuming that most PSAPs are already user to confirm his/her location, prior to businesses that use outbound-only capable of receiving 911 calls from two- enabling calling features. The interconnected VoIP services, including way VoIP providers, would they incur Commission also sought comment on the number that use outbound-only additional costs were they also to whether CMRS operators that provide interconnected VoIP services to the receive 911 calls from outbound-only interconnected VoIP services can exclusion of two-way voice calling interconnected VoIP providers? For deliver location information to a PSAP services; the projected growth in use of example, could there be potential costs in the same manner as for CMRS, outbound-only interconnected VoIP if emergency response personnel are specifically, delivering longitude and services, including any growth in the sent to the wrong location or if PSAPs latitude coordinates to the PSAP in lieu use of such services to the exclusion of are forced to deal with an increase in of a street address. two-way voice calling services; and the the number of fraudulent 911 calls? 22. Comments. Several commenters number of outbound-only 19. Finally, with the introduction of argue that the dramatic growth of interconnected VoIP 911 calls placed advanced consumer equipment and interconnected VoIP services has annually to PSAPs. applications for use on desktop created a market segment too large to

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47117

remain exempt from E911 location Vonage’s 911 service to the equipment standards development, investment, and accuracy and that interconnected VoIP or infrastructure on which PSAPs rely, infrastructure upgrades by both VoIP service providers as well as broadband resulting in the delivery of more service providers and PSAPs.’’ Vonage providers should work together to information to the PSAP than is argues that ‘‘existing and proposed address technical solutions for provided by CMRS carriers. Vonage also automatic location identification providing automatic location asserts that ‘‘public safety has not technology is significantly less reliable information for VoIP subscribers requested ALI data from Vonage.’’ than network end-point location (including wireless VoIP callers), with 25. While commenters differ on information * * * especially * * * in the goal of recommending a standard. whether ALI requirements for dense urban environments’’ and APCO maintains that ‘‘[c]allers using IP interconnected VoIP service are needed, therefore ‘‘the Commission should not devices expect and should receive the commenters generally agree that at this prematurely impose technological same E9–1–1 service as callers using time there is no technological or cost- requirements and risk likely decreases other types of devices’’ and that effective means to provide ALI for in public safety and IVS autolocation.’’ ‘‘automatic location requirements interconnected VoIP service providers. 27. A number of commenters should therefore be imposed on all Commenters also state that there are no recommend that the Commission devices that the public uses in the same industry standards to support ALI for encourage industry and public safety * * * manner as interconnected interconnected VoIP calls and that ‘‘the entities to work together to develop telephones.’’ NENA argues that ‘‘[i]t is static ALI database in use today is ill- automatic location identification entirely reasonable for consumers to suited to provide location information solutions for VoIP. NENA states that expect that services which allow for any mobile or nomadic ‘‘[i]n the future, some form of Automatic outbound calling to the PSTN will communications service.’’ According to Location Determination should be properly route calls to 9–1–1, [and] that AT&T, the services encompassed within mandatory for all portable or nomadic this is indeed the expectation held by the Commission’s definition of VoIP devices and applications’’ and the overwhelming majority of VoIP interconnected VoIP service ‘‘operate recommends that ‘‘the Commission users.’’ St. Louis County believes these over a myriad of portable devices and consult closely with industry to begin services must provide location and technologies that permit portability, fashioning workable 9-1-1 and E9-1-1 routing information similar to that including commercial mobile rules for PSTN-terminating VoIP provided by wireline voice providers. smartphones running VoIP applications, providers.’’ 23. NENA has two primary concerns Wi-Fi enabled VoIP handsets, portable 28. According to AT&T, one possible about the inability of interconnected terminal adapters, USB dongles, PC- technological solution that warrants VoIP service providers to provide ALI based softphones [and] VoIP users might further consideration would be ‘‘to for 911 calls. First, although NENA access the Internet through traditional include integrated ALI capabilities in lacks quantitative figures, it has wired broadband connections, public or the design of terminal adapters or other received a ‘‘wealth of anecdotal private wireless access points, or user devices employed in the provision evidence that PSAPs frequently receive commercial mobile broadband networks of portable VoIP services.’’ AT&T states calls routed incorrectly due to a failure [such that] each permutation of device that ‘‘these devices could include A– of nomadic VoIP systems to update user and network access may have unique GPS, passive CMRS wireless receivers, locations.’’ Second, according to NENA, technical and logistical challenges, or both, for use in trilateration and there is evidence that callers sometimes which makes it infeasible today to rely identification of the user’s location.’’ intentionally falsify location on a single standard or technology for Nevertheless, AT&T cautions that GPS- information, which is ‘‘impossible to determining and relaying accurate ALI based automatic location information detect and can negatively impact * * * to PSAPs.’’ Likewise, Qwest states that poses technical limitations, as many safety and security * * * by diverting ‘‘[w]ireline networks, e.g., the interconnected VoIP subscribers use resources away from legitimate architecture defining VoIP 911, have no their service indoors or in urban emergency calls or directing attention ability to read each other’s end-user environments, making GPS less effective away from [a crime] scene [and] when locations [and] no existing technology, if satellite transmissions are reflected off fraudulent calls are detected, it is let alone applicable industry-agreed buildings and other obstructions or technically * * * difficult to locate the standards, support the automatic satellite connectivity is lost when VoIP perpetrator. St. Louis County states that delivery of user address information users are deeper indoors. Dash argues ‘‘while improvements to location from a VoIP piece of equipment to a that a key element in an ALI solution for accuracy have been [made], there database capable of manipulating it and interconnected VoIP service is a remain inaccuracies and other limiting getting it delivered to a PSAP.’’ Vonage Location Information Server (LIS) factors requiring additional time and argues that ‘‘it is particularly critical hosted by the service and/or broadband effort at the point of call taking to that the Commission recognize the provider and therefore capable of adequately determine the location of the distinction between fixed, nomadic, and determining, storing, updating, reporting party,’’ a problem mobile interconnected VoIP service validating and providing location compounded by nomadic callers who [because] ‘‘[f]or fixed and nomadic information to first responders. ‘‘seldom [are] aware of their geographic services, moving to CMRS location Motorola supports the provision of a location and can offer only observed requirements would degrade, rather validated Master Street Address Guide landmarks thus delaying initial than improve, the accuracy and (MSAG) ‘‘where an interconnected VoIP response.’’ reliability of emergency caller location service connects to a PSAP through an 24. A number of commenters argue information [and] [f]or VoIP mobile IP/wireline technology, but that the existing Registered Location products, moving to CMRS location interconnected VoIP services that requirement, whereby VoIP subscribers requirements will introduce connect over wireless networks should register their physical location with duplication, inefficiency and not be held to the same location their provider, has worked well and confusion.’’ accuracy standard as CMRS networks at should continue to serve as the basis for 26. Motorola states that this time.’’ routing 911 calls. Vonage states that it ‘‘[i]mplementation of this functionality 29. Some commenters believe that the has worked with public safety to adapt * * * would require substantial costs associated with the deployment of

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47118 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

VoIP automatic location capability services at this time but instead seek location information generated by the would be very high. In addition, comment on a potential framework for device or application) or must support commenters point out that there is no developing solutions that would enable the provision of access point location mechanism for cost recovery. Qwest us to consider implementing ALI for information by the broadband provider states that ‘‘it is unclear whether cost interconnected VoIP service at a later as described above. recovery would come from the Federal date. 34. We seek comment on whether we government, or whether VoIP service 32. We agree with commenters that should adopt these or any other providers would need to look to the the provision of ALI in the governing principles. The Commission states (and their funding mechanisms, interconnected VoIP context is asks for comment on the appropriate such as 911 surcharges and state funds) particularly challenging because of the timeframes for their implementation for recovery of their significant costs increasing prevalence of ‘‘over-the-top’’ should the Commission decide to adopt * * * [a]nd it is even less clear where VoIP service, where the over-the-top them, considering the technological, non-regulated entities would go for their VoIP service provider that offers cost, and operational aspects of the cost recovery.’’ AT&T argues that any interconnected VoIP service to services and devices that the solution will require ‘‘substantial up- consumers is a different entity from the Commission proposes to subject to the front investment well before any broadband provider that provides the new requirements. We also seek appreciable results would be seen’’ and underlying Internet connectivity. In this comment on the potential costs and ‘‘necessitate significant reengineering’’ scenario, there will frequently be benefits of this proposal. We seek as well as replacement of existing circumstances where the over-the-top comment on the most cost effective devices with ‘‘significant consumer VoIP service provider has a direct solution for providing reasonably outreach efforts and additional expense connection to the consumer but does accurate location information for for subscribers and service providers.’’ not have information about the user’s interconnected VoIP services. These 30. Discussion. We agreee with location, while the broadband provider comments should address both commenters that, given the increasing may be aware of the consumer’s location currently available solutions and popularity and adoption of based on the access point he or she is solutions under development. We seek interconnected VoIP services, the using but is not aware of when the detailed comment on the relative merits provision of accurate location consumer is placing an emergency call. of any potential solutions, including the information to PSAPs is becoming In these situations, the most efficient degree of location accuracy, the cost of essential information to facilitate and accurate ALI solution may require implementing the location solution, the prompt emergency response and protect that both the broadband provider and degree of coordination required to life, health and property. Although the over-the-top VoIP service provider implement the solution, to which types some commenters point out that the play a part. of VoIP service providers the location current Registered Location requirement 33. Given the increasing use of systems would apply (e.g. can provide the necessary detailed interconnected VoIP services, we seek interconnected VoIP, outbound-only location of callers, the current regime comment whether the Commission interconnected VoIP, ‘‘over-the-top’’ remains dependent upon subscribers should adopt proposed general location VoIP, etc.) and any other limitations that manually and accurately entering their accuracy governing principles that may be relevant. location information and updating it in could be applied to interconnected VoIP 35. We seek comment on the potential a timely manner. NENA indicates that a service providers and over-the-top VoIP benefits of extending location accuracy number of VoIP 911 calls have provided service providers but that would allow requirements to interconnected VoIP erroneous or fraudulent location both types of providers the flexibility to services. Are they similar to those information to PSAPs, leading to the develop technologically efficient and described above for extending 911 waste of scarce emergency resources cost-effective solutions. The IETF requirements to outbound-only and squandering time that could have GEOPRIV working group has defined a interconnected VoIP service, including been spent responding to other suite of protocols that allow broadband decreased response time to emergencies; emergencies. We note that proposals providers to provide location reductions in property damage, the related to NG911 would allow the information to subscribers’ devices severity of injuries, and loss of life; and transmission of multiple location through standard protocol interfaces. an increase in the probability of objects for a call and thus permit the One governing principle might be that apprehending criminal suspects? We PSAP to receive the benefit of both the when an interconnected VoIP user recognize that the extent of any benefits additional information contained in a accesses the Internet to place an will be in part a function of the degree civic address provided by a user (e.g., an emergency call, the underlying to which current location methodologies apartment number or street address) and broadband provider must be capable of provide incorrect or imprecise location the automatically determined location providing location information information and thereby delay information that is less subject to data regarding the access point being used by emergency personnel from arriving at entry errors, lack of timely updates, and the device or application, using the scene. To aid in the estimation of possible misrepresentations. industry-standard protocols on these benefits, we seek comment on the 31. In light of the increasing commercially reasonable and non- extent to which the receipt of imprecise prevalence of VoIP calling, the discriminatory terms. For example, a or incorrect location information from evolution of consumer expectations, and broadband provider might be able to interconnected VoIP service providers the limitations of the Registered satisfy its obligation by providing the has resulted in problems for first Location method, we believe it is access point location information to: (1) responders. We seek precise imperative to continue working towards the end user, (2) the over-the-top VoIP quantification of the extent to which an automatic location solution for service provider, and/or (3) the PSAP. emergency personnel are deployed to interconnected VoIP calls to 911. At the Another general principle might be that incorrect locations and the difference in same time, given the lack of presently when an interconnected VoIP user response times for calls initiated from available solutions, we are not places an emergency call, the over-the- interconnected VoIP service providers proposing to adopt specific ALI top VoIP service provider must either versus wireline and wireless service requirements for interconnected VoIP provide ALI directly (e.g., using geo- providers.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47119

36. We invite comment on the costs authority that would enable the commercial location-based service for associated with various VoIP location Commission to address privacy use in providing location information accuracy technologies and how these concerns in this area? for emergency calls. costs and solutions vary by type of VoIP 38. Liability Protection. In the larger 40. The introduction of more service. These costs may include context of our effort to transition to sophisticated mobile devices has hardware upgrades, software updates, NG911, we have asked whether some allowed service providers to offer their liability concerns, and any transaction type of liability protection might be customers a wide range of commercial costs. With respect to the last necessary or appropriate for those location-based services. Such services component, we understand that an involved in the provision of emergency allow users to navigate by car or on foot, interconnected VoIP service provider services. Today we revisit this question find nearby points of interest such as has a relationship with the user but does in the context of interconnected VoIP restaurants or gas stations, tag photos, not have information about the user’s service providers and our proposal to share their location information with location, while the network provider extend ALI requirements to them and to friends, track jogging mileage, obtain may be aware of the device or broadband providers. Would a coupons from nearby merchants, receive application’s location based on the broadband provider be considered an reminders of errands, or play location- access point being used but is not aware ‘‘other emergency communications based games. The location-based of when an emergency call is being provider’’ subject to the liability capabilities inherent in the design of placed. We seek comment on how a protections of section 615a(a)? The these devices and applications could solution to this problem can be found Commission also seeks comment on the perhaps be leveraged when consumers and how transaction costs between extent to which the Commission can contact 911 using non-CMRS-based interconnected VoIP service providers address the liability of device voice services. These location-based and network providers can be reduced manufacturers that include software services could potentially permit service in order to provide the most cost capable of supporting ALI for providers and applications developers effective and accurate location interconnected VoIP service. Are there to provide PSAPs with more accurate information. Finally, to the extent that other sources of authority pursuant to 911 location information. Exploiting there are any other costs and benefits which the Commission could address commercially available location that we should consider, we seek liability issues for service and determination technologies already in comment on the nature and equipment providers? devices may offer a more cost efficient method by which to provide critical life quantification of their magnitude. C. Location-Capable Broadband Voice saving information to PSAPs. The Technologies 37. Privacy Concerns. We note that Commission seeks comment on whether section 222 of the Communications Act 39. In the Location Accuracy NOI, we we should encourage mobile service requires carriers (including CMRS observed that ‘‘many new forms of IP- providers to enable the use of providers) to safeguard the privacy of based voice communications are being commercial location-based services for customer proprietary network offered to consumers via a variety of emergency purposes. We also seek information (CPNI), including location wireless services, devices, and comment on developing operational information. Section 222 generally applications for use on a wide range of benchmarks to assist consumers in permits carriers to disclose CPNI ‘‘with new devices.’’ These IP-based evaluating the ability of carriers to the approval of the customer.’’ The communications are being carried over provide precise location information for statute provides heightened protection CMRS circuit-switched and data emergency purposes based on the for location information: A customer networks, as well as on Wi-Fi and other location-based capabilities of devices. shall not be considered to have given types of wireless connectivity and these Should the Commission develop such approval with regard to ‘‘call location communications may not be subject to benchmarks, and if so, what should they information concerning the user of a our existing interconnected VoIP service be? In addition, the CSRIC should be commercial mobile service * * * or the or CMRS rules and therefore would not directed to explore and make user of an IP-enabled voice be included within the scope of our recommendations on methodologies for [interconnected VoIP] service’’ without proposed revision to the interconnected leveraging commercial location-based ‘‘express prior authorization,’’ except VoIP service definition for 911 services for 911 location determination. that a carrier or interconnected VoIP purposes. The record indicates that CSRIC should also suggest whether it is service provider may provide such most smartphones, and many other new feasible or appropriate for the information ‘‘to providers of emergency broadband-enabled mobile devices, now Commission to adopt operational services, and providers of emergency offer one or more location capabilities, benchmarks that will allow consumers support services, solely for purposes of such as A–GPS, network-based location to evaluate carriers’ ability to provide delivering or assisting in the delivery of determination, and Wi-Fi based accurate location information. We seek emergency services.’’ How would positioning. Often, these capabilities comment on whether the adoption of section 222 apply to broadband work in combination to provide fairly such benchmarks would be effective in providers if we were to amend our rules accurate location determination. St. enabling consumers to be better to require them to assist interconnected Louis County reports that ‘‘with the informed about the ability of wireless VoIP service providers in providing advent of the ‘smart phone’, it has been devices and technologies to provide a ALI? Could the Commission use observed that the location reported by PSAP with accurate location authority ancillary to sections 222 and the device is enormously more accurate information. 615a–1 to require broadband providers than that currently provided by Phase II 41. The Commission also seeks to maintain the confidentiality of wireless technologies’’ and such phones comment on the costs and benefits of location information except as should use their ‘‘inherent geo-based the approaches described above. As in consistent with section 222? Could the accuracy for reporting the location of our discussion above regarding location Commission extend the exception to the the calling party.’’ Some commenters accuracy in the interconnected VoIP prior authorization rule for providers of argue that an industry advisory group service context, we seek to encourage emergency services to broadband would be able to provide an orderly and the development of cost-effective providers? Are there other sources of standards driven approach to leveraging solutions for location-capable

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47120 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

broadband voice technologies to support environments from which most calls are responder without entering the the provision of accurate location made, including indoors. [Testing] must building, a location accuracy of 100/300 information to PSAPs and first keep pace with consumer expectations meters or cell-tower only would only responders. The Commission seeks and emergency response requirements.’’ identify the city block in which a comment on both currently available 45. Carriers generally oppose building is located, which in urban solutions and solutions under expanding testing to indoor environments could potentially contain development, including the degree of environments. T–Mobile argues that thousands of apartments. Thus, we location accuracy provided, the cost of unlike outdoor data collection, ‘‘which consider indoor location accuracy to be implementing the solution, the degree of can be performed by drive testing, there a significant public safety concern that coordination required to implement the is no feasible way to perform indoor requires development of indoor solution, the types of service, testing on any large scale.’’ However, if technical solutions and testing application, and network providers that indoor testing is required, ‘‘T–Mobile methodologies to verify the would be affected, and any other agrees with the ESIF recommendation effectiveness of such solutions. limitations that may be relevant. The that testing representative indoor 48. While we recognize the Commission also seeks comment on the environments would be far preferable to importance of indoor testing, we believe potential benefits for the public and for repetitive application of indoor testing that further work is needed in this area public safety in terms of improved at the local level.’’ Sprint Nextel also and seek comment on whether the access to 911 services, reducing opposes an indoor testing standard, Commission should require indoor response time to emergencies, and stating that ‘‘the proportion of calls location accuracy testing and, if so, enhancing the protection of life, safety, placed to 911 from indoors varies from using what standards. Can outdoor and property. PSAP to PSAP, from town to town, from testing methodologies be used in indoor county to county and from state to environments, or should the standards D. Improving Indoor Location Accuracy state’’ and that because of these for outdoor and indoor location 1. Indoor Location Accuracy Testing variations, ‘‘adopting a specified level of accuracy testing be different? Are indoor testing is not reasonable without traditional sampling and drive testing 42. Background. In the Location further data.’’ Sprint Nextel further methods used for outdoor testing Accuracy FNPRM, the Commission argues that ‘‘technology for performing appropriate for indoor testing, or do we sought comment on whether it should indoor testing is still in the process of need new testing methodologies tailored extend location accuracy testing to being developed,’’ and therefore, ‘‘[i]t to indoor environments? What indoor indoor environments. Noting the would be premature to impose specific location accuracy testing methodologies growing number of wireless 911 calls, indoor testing requirements on the are available today, and what are the the Commission asked whether the carriers at this time.’’ costs and benefits associated with each? Commission should update OET 46. AT&T also argues against an We also seek comment on the Bulletin 71 to include measurements in indoor testing requirement because, percentage of emergency calls that are indoor environments. ‘‘[p]ractically speaking, AT&T already placed indoors today and a 43. Comments. Some commenters finds it difficult to conduct outdoor quantification of how much an indoor support the Commission’s imposing an testing on private property,’’ and it location accuracy testing standard could indoor testing requirement. Polaris anticipates that ‘‘gaining indoor improve the ability of emergency ‘‘strongly advocates that the building access for testing purposes will responders to locate someone in an Commission establish testing and be even more difficult.’’ AT&T contends emergency. reporting requirements for in-building that ‘‘obtaining access to the number of 49. We also refer the indoor testing location accuracy and yield. With better indoor sites required to meet a 30% issue to the CSRIC for further information regarding the scope and standard may be impossible.’’ Finally, development of technical impact of the challenges associated with Qualcomm argues that ‘‘[t]he FCC has recommendations. We direct that the indoor E911 location information, the no basis to use OET Bulletin No. 71 as CSRIC provide initial findings and Commission will be able to properly the starting point for indoor compliance recommendations to the Commission, assess the best way to improve indoor testing, and definitely should not make taking into account the cost performance (and the appropriate its ‘guidelines’ mandatory or define a effectiveness of any recommendations, metrics that need to be put in place).’’ level of indoor versus outdoor testing.’’ within nine months of the referral of Polaris argues that ‘‘the Commission Qualcomm states that ‘‘the level of 911 this issue to the CSRIC. should hold workshops and other wireless calls made indoors versus 2. Wi-Fi Positioning and Network events to get input from industry outdoors is not only presently Access Devices members and advisory groups regarding unquantified, but it is effectively indoor testing. Based on this input, the irrelevant to the Commission’s ultimate 50. Wi-Fi Positioning. In the Location Commission should also consider goal of improving the location accuracy Accuracy NOI, the Commission sought requiring indoor testing and establishing of calls made from inside of buildings.’’ comment on the potential use of Wi-Fi a testing schedule.’’ 47. Discussion. Publicly available connections to support location 44. NENA argues that the growing reports, such as a March 2011 study accuracy determination in indoor number of ‘‘wireless-only households from J. D. Power and Associates, environments, including both * * * may prompt a need for new indicate that indoor wireless calls have residential environments and public indoor/outdoor testing to more increased dramatically in the past few hotspots, such as coffee shops, airports, accurately reflect consumer trends in years, to an average of 56 percent of all or bookstores. In the last several years, the use of mobile devices.’’ However, calls, up from 40 percent in 2003. many more homes, offices, shops, and NENA states that it ‘‘lacks sufficient Indoor locations pose particular public spaces have installed Wi-Fi quantitative information to recommend challenges for first responders, as the access points, and a growing number of a particular fraction of testing that location of an emergency may not be as mobile devices (e.g., smartphones, should be conducted indoors.’’ Finally, obvious as emergencies that occur laptops, and tablet PCs) use Wi-Fi TruePosition argues that the testing outdoors. For example, since indoor positioning capability as one means of structure ‘‘should encompass those incidents are often not visible to the first determining the device user’s location.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47121

To locate a mobile device using Wi-Fi accuracy location method for some Further, we seek comment on the positioning, a technology vendor must commercial-location-based smartphone methods and technologies that would first create a database of Wi-Fi access applications, at present no vendors have most effectively enable the provision of point information (a Wi-Fi Database). even proposed using this method for location information to network access The caller’s device must then measure E911.’’ devices. Because we recognize that it information from visible Wi-Fi access 53. Network Access Devices. Many may be highly inefficient and points and send that information to a fixed broadband Internet access devices, burdensome for manufacturers of Wi-Fi Location Server that has access to particularly those provided to the consumer equipment and software the Wi-Fi Database. The device’s consumer by the broadband service applications to make individual location is then determined by the Wi- provider, are permanently located at a arrangements with every broadband Fi Location Server. Since the radii for civic (street) address, which is known to provider to provide location information Wi-Fi access points are typically small, the network provider. Indeed, in some using network access devices, we seek Wi-Fi positioning can produce access network architectures, the device comment on whether network access reasonably accurate location is designed to cease functioning when it devices could provide location information. has been moved to a different network information using one or more 51. While some consumer location- attachment point. Thus, when a caller recognized industry standards. based services rely on Wi-Fi uses a wireless phone that is 56. As in prior sections, the positioning, Wi-Fi positioning is not communicating with a Wi-Fi access Commission seeks comment on the currently used for emergency calls. point or femtocell, the wireless carrier costs and benefits of the potential According to the CSRIC 4C Report, Wi- may be able to use the civic address to indoor accuracy solutions described Fi positioning is not being used to better locate the caller. For example, in above, including both currently deliver emergency calls because: (1) a high- rise building, access to the civic available solutions and solutions under Current deployments for Wi-Fi address of the network access device development. We recognize that the positioning are based on proprietary could alleviate the need for vertical efficacy of any particular indoor implementations; (2) support for location information, since the civic solution may vary depending on the transporting Wi-Fi measurements to the address would include information that nature of the indoor environment, the Wi-Fi Location Server are not available is capable of locating the source of the broadband networks available within in the E911 control plane interface call, such as a floor or apartment the environment, and the particular standards; (3) only a small fraction of number. device, service, or application being mobile phones in the marketplace have 54. Discussion. We would not expect used by the consumer to place an Wi-Fi capability, although the Wi-Fi positioning to serve as a emergency call. We seek comment on penetration rate is growing rapidly with replacement for other location the relative costs and benefits of each the increasing adoption of smartphones; technologies such as A–GPS or such solution and the costs and benefits and (4) use of Wi-Fi positioning reduces triangulation-based techniques, but of developing multiple solutions that a portable device’s battery life. Despite could it complement these technologies, can provide more accurate location the fact that Wi-Fi positioning is not particularly in indoor or urban canyon information when combined. currently being used for emergency settings where alternative location E. Legal Authority calls, the CSRIC Report states that the technologies such as A–GPS may not use of Wi-Fi positioning for emergency work reliably? Given the potential 57. We seek comment on our analysis purposes warrants more detailed study. public safety benefits of using Wi-Fi that we have legal authority to adopt the 52. T–Mobile has concerns about positioning to locate emergency callers, proposals described herein. First, we using Wi-Fi positioning for emergency we seek comment on whether, and if so, believe that modifying the definition of calls and states that ‘‘WiFi Proximity how, the Commission could encourage interconnected VoIP service as proposed only works in urban and dense the use of location information that has flows from the Commission’s authority suburban areas, and only with phones been derived using Wi-Fi positioning for to regulate interconnected VoIP 911 that have Wi-Fi receive capability. WiFi 911 purposes. How might location service, which was ratified by the NET Proximity methods also share common information derived from Wi-Fi 911 Improvement Act. The NET 911 weaknesses with A–GPS in many indoor positioning be conveyed to the PSAP, Improvement Act defines ‘‘IP-enabled environments (where access points VoIP service provider, or broadband voice service’’ as having ‘‘the meaning cannot readily be located and Internet access provider in both E911 given the term ‘interconnected VoIP documented) and in heavily forested and NG911 settings? Can network service’ by § 9.3 of the Federal rural areas (where access point densities devices now or will they in the future Communications Commission’s are low).’’ T–Mobile also notes that be capable of providing Internet regulations.’’ The legislative history of ‘‘current E911 control plane interface connectivity (e.g., home gateways, hot the NET 911 Improvement Act indicates standards do not support the use of spots, and set-top boxes)? If so, will they that Congress did not intend to lock in WiFi Proximity location estimates for be able to self-locate using Wi-Fi the then-existing definition of E911 purposes, and developing and positioning? What are the potential interconnected VoIP service as a maintaining the required database to costs of including this capability in permanent definition for NET 911 support this method is operationally devices and how much time would be Improvement Act purposes. intensive and costly.’’ T–Mobile needed to implement it? The 58. We also believe that we have concludes by noting that ‘‘the WiFi Commission seeks comment on the authority to modify the 911 obligations Proximity method has considerable merits of these proposals. of interconnected VoIP service shortcomings: limited areas of 55. We also seek comment on whether providers. The NET 911 Improvement applicability, potentially low reliability, fixed broadband Internet access service Act requires interconnected VoIP only a subset of handsets that can be providers could provision their network service providers to provide 911 service located, no standards support for E911, access devices to be capable of ‘‘in accordance with the requirements of limited accuracy, and high cost. For providing location information (civic or the Federal Communications these reasons, though the approach has geospatial) to network hosts that attach Commission, as in effect on July 23, found some success as a medium to these network access devices. 2008 and as such requirements may be

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47122 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

modified by the Commission from time providers? How would the statutory an amendment for 911 purposes only to time.’’ Thus, our authority to modify goals of sections 1302(a) and (b) be necessarily require the Commission to the manner in which interconnected furthered by the rules we propose? use the same definition when VoIP service providers provide E911 II. Notice of Proposed Rulemaking on implementing the CVAA or the Truth in service falls under Congress’s explicit Amending the Definition of Caller ID Act? Would there be any delegation to us to modify the Interconnected VOIP Service in Section necessary effect on the Commission’s requirements applying to 9.3 of the Commission’s Rules other rules that cross-reference § 9.3 of interconnected VoIP service ‘‘from time the Commission’s rules? to time.’’ 61. In the Second Further Notice 59. To the extent the regulation of above, we seek comment on whether to III. Procedural Matters network operators or others is include outbound-only interconnected A. Ex Parte Presentations reasonably ancillary to the effective VoIP service within the definition of performance of the Commission’s interconnected VoIP service solely for 63. The proceedings initiated by this statutory responsibilities to oversee the purposes of our 911 rules and not for Second Further Notice of Proposed any other purpose. We note that since activities of interconnected VoIP service Rulemaking and this Notice of Proposed enactment of the NET 911 Improvement providers, and such regulation lies Rulemaking shall be treated as a Act, Congress has passed two other within our subject matter jurisdiction, ‘‘permit-but-disclose’’ proceedings in as specified in Title I of the statutes that refer to the definition of accordance with the Commission’s ex Communications Act, the Commission interconnected VoIP service in § 9.3 of parte rules. Persons making ex parte has authority, under section 4(i) of the the Commission’s rules. In October presentations must file a copy of any Communications Act and judicial 2010, the Twenty-First Century precedent regarding the Commission’s Communications and Video written presentation or a memorandum ancillary jurisdiction to adopt Accessibility Act (CVAA) become law. It summarizing any oral presentation requirements applicable to these other requires, among other things, that the within two business days after the entities. Broadband, Internet access, and Commission promulgate regulations to presentation (unless a different deadline other network service providers fall ‘‘ensure the accessibility, usability, and applicable to the Sunshine period within our general jurisdictional grant compatibility of advanced applies). Persons making oral ex parte as providers of ‘‘interstate and foreign communications services and the presentations are reminded that communication by wire or radio.’’ In equipment used for advanced memoranda summarizing the addition, many VoIP 911 calls are communications services by individuals presentation must: (1) List all persons carried over such networks. with disabilities’’ and to do what is attending or otherwise participating in Accordingly, if a network used by the necessary to ‘‘achieve reliable, the meeting at which the ex parte interconnected VoIP service provider interoperable communication that presentation was made; and (2) does not accommodate the provider’s ensures access by individuals with summarize all data presented and efforts to comply with the 911 disabilities to an Internet protocol- arguments made during the obligations that we establish for such enabled emergency network, where presentation. If the presentation provider pursuant to our express achievable and technically feasible.’’ consisted in whole or in part of the statutory obligations under the NET 911 The CVAA defines ‘‘advanced presentation of data or arguments Improvement Act, the element required communications services’’ to include already reflected in the presenter’s for exercising ancillary jurisdiction over interconnected VoIP service as defined written comments, memoranda, or other such networks—i.e., that the regulation in § 9.3 of the Commission’s rules ‘‘as filings in the proceeding, the presenter is reasonably ancillary to the effective such section may be amended from time may provide citations to such data or performance of our statutory duties— to time,’’ as well as ‘‘non-interconnected arguments in his or her prior comments, appears to be met, since the VoIP’’ service, which is service other memoranda, or other filings (specifying requirements we would impose on the than interconnected VoIP service ‘‘that the relevant page and/or paragraph network would be designed to enable * * * enabled real-time voice numbers where such data or arguments the provider’s compliance with the 911 communications that originate from or can be found) in lieu of summarizing obligations that we had promulgated terminate to the user’s location using them in the memorandum. Documents Internet protocol or any success under our express statutory mandate. To shown or given to Commission staff protocol; and * * * requires Internet the extent the record that develops during ex parte meetings are deemed to protocol compatible customer premises supports a conclusion that the be written ex parte presentations and equipment.’’ In December 2010, the regulation of other entities will enable must be filed consistent with § 1.1206(b) interconnected VoIP service providers Truth in Caller ID Act became law. It of the Commission’s rules. In to fulfill their statutory duties as amends section 227 of the proceedings governed by § 1.49(f) of the described herein, then we conclude that Communications Act to prohibit any Commission’s rules or for which the the Commission may exercise its person from engaging in caller ID ancillary authority to promulgate such spoofing in connection with ‘‘any Commission has made available a regulations. We seek comment on this telecommunications service or IP- method of electronic filing, written ex analysis. enabled voice service.’’ That Act defines parte presentations and memoranda 60. We also ask commenters to ‘‘IP-enabled voice service’’ to have ‘‘the summarizing oral ex parte address other potentially relevant meaning given that term by § 9.3 of the presentations, and all attachments sources of authority. For example, as to Commission’s regulations (47 CFR 9.3), thereto, must be filed through the wireless broadband providers, does the as those regulations may be amended by electronic comment filing system Commission have authority, pursuant to the Commission from time to time.’’ available for that proceeding, and must Title III provisions, to impose license 62. We seek comment on whether, if be filed in their native format (e.g., .doc, conditions in the public interest and we decide to amend the definition of .xml, .ppt, searchable .pdf). Participants adopt the proposals discussed herein to interconnected VoIP service in § 9.3 of in this proceeding should familiarize support the provision of 911/E911 the Commission’s rules, we should themselves with the Commission’s ex services by interconnected VoIP service amend it for 911 purposes only. Would parte rules.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47123

B. Comment Filing Procedures the Commission has prepared an Initial does not present substantial scientific or 64. Pursuant to sections 1.415 and Regulatory Flexibility Analysis (IRFA) commercial information indicating that 1.419 of the Commission’s rules, 47 CFR of the possible significant economic listing two of the six species [Hardy’s 1.415, 1.419, interested parties may file impact on small entities of the policies aegialian scarab (Aegialia hardyi) and comments and reply comments in and rules addressed in this document. Sand Mountain serican scarab (Serica response to this Second Further Notice Written public comments are requested psammobunus)] may be warranted. of Proposed Rulemaking and Notice of in the IRFA. These comments must be However, we find that the petition Proposed Rulemaking on or before the filed in accordance with the same filing presents substantial scientific or dates indicated on the first page of this deadlines as comments filed in response commercial information indicating that document. Comments may be filed to this Second Further Notice of listing may be warranted for four of the using the Commission’s Electronic Proposed Rulemaking and Notice of six species [Crescent Dunes aegialian Comment Filing System (ECFS). See Proposed Rulemaking as set forth on the scarab (A. crescenta), Crescent Dunes Electronic Filing of Documents in first page of this document, and have a serican scarab (S. ammomenisco), large Rulemaking Proceedings, 63 FR 24121 separate and distinct heading aegialian scarab (A. magnifica), and (1998). designating them as responses to the Giuliani’s dune scarab (Pseudocotalpa • Electronic Filers: Comments may be IRFA. giuliani)]. Therefore, with the publication of this notice, we are filed electronically using the Internet by E. Paperwork Reduction Act Analysis accessing the ECFS: http:// initiating a review of the status of these fjallfoss.fcc.gov/ecfs2/. 68. The Second Further Notice of species to determine if listing these four • Paper Filers: Parties that choose to Proposed Rulemaking and Notice of species is warranted. To ensure that the file by paper must file an original and Proposed Rulemaking contain proposed status reviews are comprehensive, we one copy of each filing. If more than one new information collection are requesting scientific and commercial docket or rulemaking number appears in requirements. The Commission, as part data and other information regarding the caption of this proceeding, filers of its continuing effort to reduce these four species. Based on the status must submit two additional copies for paperwork burdens, invites the general reviews, we will issue 12-month each additional docket or rulemaking public and OMB to comment on the findings on these four species, which number. information collection requirements will address whether the petitioned contained in this document, as required actions are warranted, as provided in Filings can be sent by hand or by PRA. In addition, pursuant to the the Act. messenger delivery, by commercial Small Business Paperwork Relief Act of DATES: To allow us adequate time to overnight courier, or by first-class or 2002, we seek specific comment on how overnight U.S. Postal Service mail. All conduct the status reviews, we request we might ‘‘further reduce the that we receive information on or before filings must be addressed to the information collection burden for small Commission’s Secretary, Office of the October 3, 2011. Please note that if you business concerns with fewer than 25 are using the Federal eRulemaking Secretary, Federal Communications employees.’’ Commission. Portal (see ADDRESSES section, below), • All hand-delivered or messenger- Federal Communications Commission. the deadline for submitting an delivered paper filings for the Marlene H. Dortch, electronic comment is 11:59 p.m. Commission’s Secretary must be Secretary. Eastern Time on this date. delivered to FCC Headquarters at 445 [FR Doc. 2011–19718 Filed 8–3–11; 8:45 am] ADDRESSES: You may submit 12th St., SW., Room TW–A325, BILLING CODE 6712–01–P information by one of the following Washington, DC 20554. The filing hours methods: • are 8 a.m. to 7 p.m. All hand deliveries Federal eRulemaking Portal: http:// www.regulations.gov. In the box that must be held together with rubber bands DEPARTMENT OF THE INTERIOR or fasteners. Any envelopes and boxes reads ‘‘Enter Keyword or ID,’’ enter the must be disposed of before entering the Fish and Wildlife Service Docket number for this finding, which building. is [FWS–R8–ES–2011–0041]. Check the • Commercial overnight mail (other 50 CFR Part 17 box that reads ‘‘Open for Comment/ than U.S. Postal Service Express Mail Submission,’’ and then click the Search [Docket No. FWS–R8–ES–2011–0041; MO– button. You should then see an icon that and Priority Mail) must be sent to 9300 92210–0–0008] East Hampton Drive, Capitol Heights, reads ‘‘Submit a Comment.’’ Please MD 20743. Endangered and Threatened Wildlife ensure that you have found the correct • U.S. Postal Service first-class, and Plants; 90-Day Finding on a rulemaking before submitting your Express, and Priority mail must be Petition To List Six Sand Dune Beetles comment. • U.S. mail or hand-delivery: Public addressed to 445 12th Street, SW., as Endangered or Threatened Washington, DC 20554. Comments Processing, Attn: [FWS–R8– AGENCY: Fish and Wildlife Service, ES–2011–0041]; Division of Policy and C. Accessible Formats Interior. Directives Management; U.S. Fish and 65. To request materials in accessible ACTION: Notice of petition finding and Wildlife Service; 4401 N. Fairfax Drive, formats for people with disabilities initiation of status reviews. MS 2042–PDM; Arlington, VA 22203. (braille, large print, electronic files, We will post all information we receive audio format), send an e-mail to SUMMARY: We, the U.S. Fish and on http://www.regulations.gov. This [email protected] or call the Consumer & Wildlife Service (Service), announce a generally means that we will post any Governmental Affairs Bureau at 202– 90-day finding on a petition to list six personal information you provide us 418–0530 (voice), 202–418–0432 (tty). sand dune beetles as endangered or (see the Request for Information section threatened and to designate critical below for more details). D. Regulatory Flexibility Analyses habitat under the Endangered Species After October 3, 2011, you must 66. As required by the Regulatory Act of 1973, as amended (Act). Based on submit information directly to the Field Flexibility Act of 1980, see 5 U.S.C. 604, our review, we find that the petition Office (see FOR FURTHER INFORMATION

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00039 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47124 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

CONTACT section below). Please note that sand dune beetle species is warranted, hours at the U.S. Fish and Wildlife we might not be able to address or we will propose critical habitat (see Service, Nevada Fish and Wildlife incorporate information that we receive definition in section 3(5)(A) of the Act), Office (see FOR FURTHER INFORMATION after the above requested date. under section 4 of the Act, to the CONTACT). maximum extent prudent and FOR FURTHER INFORMATION CONTACT: Jill Background Ralston, Acting State Supervisor, by determinable at the time we propose to U.S. mail at Nevada Fish and Wildlife list the species. Therefore, within the Section 4(b)(3)(A) of the Act requires Office, U.S. Fish and Wildlife Service, geographical range currently occupied that we make a finding on whether a 1340 Financial Blvd, Suite 234, Reno, by each of the four sand dune beetle petition to list, delist, or reclassify a NV 89502, by telephone at 775–861– species, we request data and species presents substantial scientific or 6300, or by facsimile at 775–861–6301. information on: commercial information indicating that If you use a telecommunications device (1) What may constitute ‘‘physical or the petitioned action may be warranted. for the deaf (TDD), please call the biological features essential to the We are to base this finding on Federal Information Relay Service conservation of the species;’’ information provided in the petition, (2) Where these features are currently (FIRS) at 800–877–8339. supporting information submitted with found; and the petition, and information otherwise SUPPLEMENTARY INFORMATION: (3) Whether any of these features may available in our files. To the maximum Request for Information require special management extent practicable, we are to make this considerations or protection. finding within 90 days of our receipt of When we make a finding that a In addition, we request data and the petition and publish our notice of petition presents substantial information on ‘‘specific areas outside the finding promptly in the Federal information indicating that listing a the geographical area occupied by the Register. species may be warranted, we are species’’ that are ‘‘essential to the Our standard for substantial scientific required to promptly review the status conservation of the species.’’ Please or commercial information within the of the species (status review). For the provide specific comments and Code of Federal Regulations (CFR) with status reviews to be complete and based information as to what, if any, critical regard to a 90-day petition finding is on the best available scientific and habitat you think we should propose for ‘‘that amount of information that would commercial information, we request designation if the species are proposed lead a reasonable person to believe that information on the Crescent Dunes for listing, and why such habitat meets the measure proposed in the petition aegialian scarab, Crescent Dunes serican the requirements of section 4 of the Act. may be warranted’’ (50 CFR 424.14(b)). scarab, large aegialian scarab, and Please include sufficient information If we find that substantial scientific or Giuliani’s dune scarab from with your submission (such as scientific commercial information was presented, governmental agencies, Native journal articles or other publications) to we are required to promptly conduct a American Tribes, the scientific allow us to verify any scientific or species status review, which we community, industry, and any other commercial information you include. subsequently summarize in our interested parties. For each of these Submissions merely stating support 12-month finding. species, we seek information on: for or opposition to the action under (1) The species’ biology, range, and consideration without providing Petition History population trends, including: supporting information, although noted, On February 2, 2010, we received a (a) Habitat requirements for feeding, will not be considered in making a petition dated January 29, 2010, from breeding, and sheltering; determination. Section 4(b)(1)(A) of the WildEarth Guardians (hereinafter (b) Genetics and taxonomy; Act directs that determinations as to referred to as the petitioner), requesting (c) Historical and current range, whether any species is an endangered or that we list six species of sand dune including distribution patterns; threatened species must be made beetles in Nevada as endangered or (d) Historical and current population ‘‘solely on the basis of the best scientific threatened with critical habitat under levels, and current and projected trends; and commercial data available.’’ the Act. The petition clearly identified and You may submit your information itself as a petition and included the (e) Past and ongoing conservation concerning these status reviews by one appropriate identification information measures for the species, its habitat, or of the methods listed in the ADDRESSES for the petitioner, as required in 50 CFR both. section. If you submit information via 424.14(a). (2) The factors that are the basis for http://www.regulations.gov, your entire In a March 12, 2010, letter to the making a listing, delisting, or submission—including any personal petitioner, we acknowledged receipt of downlisting determination for a species identifying information—will be posted the petition, and responded that we under section 4(a) of the Endangered on the Web site. If you submit a reviewed the information presented in Species Act of 1973, as amended (Act) hardcopy that includes personal the petition and determined that issuing (16 U.S.C. 1531 et seq.), which are: identifying information, you may an emergency regulation temporarily (a) The present or threatened request at the top of your document that listing the species under section 4(b)(7) destruction, modification, or we withhold this personal identifying of the Act was not necessary. We also curtailment of its habitat or range; information from public review. stated that we anticipated making an (b) Overutilization for commercial, However, we cannot guarantee that we initial finding in Fiscal Year 2010. This recreational, scientific, or educational will be able to do so. We will post all finding addresses the petition. purposes; hardcopy submissions on http:// (c) Disease or predation; www.regulations.gov. Previous Federal Actions (d) The inadequacy of existing Information and supporting The Crescent Dunes aegialian scarab regulatory mechanisms; or documentation that we received and (Aegialia crescenta), Hardy’s aegialian (e) Other natural or manmade factors used in preparing this finding is scarab (A. hardyi), large aegialian scarab affecting its continued existence. available for you to review at http:// (A. magnifica), Crescent Dunes serican If, after the status reviews, we www.regulations.gov, or you may make scarab (Serica ammomenisco), Sand determine that listing any of the four an appointment during normal business Mountain serican scarab (S.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00040 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47125

psammobunus), and Giuliani’s dune threatened in 1978 (43 FR 35636; Blowsand Mountains; Crescent Dunes; scarab (Pseudocotalpa giuliani) were all August 10, 1978), citing the effect of off- and Big Dune/Lava Dune) (Table 1; previously designated by the Service as road vehicle (ORV) use. The Service WildEarth Guardians 2010, p. 5). Both category 2 candidate species, then stated that ORV use compacts dead in the petition and in our files, there is defined as taxa for which the Service organic matter accumulated on dune little to no information on population had on hand information indicating that slopes and prevents its buildup, thereby sizes or population trends for any of proposing to list as endangered or destroying the larval habitat of the these sand dune beetle species. threatened was possibly appropriate, beetle. The proposal to list also found The petition provided information but for which persuasive data on that there was a lack of State or Federal regarding the six species’ ranking biological vulnerability and threats were laws protecting the species. Included in according to NatureServe (WildEarth not available to support proposed rules the proposed rule was a proposal to Guardians 2010, pp. 3–4). The (59 FR 58982; November 15, 1994). In designate critical habitat at Big Dune, petitioned sand dune beetles are all the February 28, 1996, Candidate Notice Nye County, Nevada, at the time the ranked as critically impaired at the of Review (CNOR) (61 FR 7595), we only known location for the species. global, national, or State level adopted a single category of candidate The Service withdrew the proposal to (WildEarth Guardians 2010, pp. 3–4). species defined as follows: ‘‘Those list Giuliani’s dune scarab after a While the petition states that the species for which the Service has on file temporary 2-year period mandated by ‘‘definition of ‘critically impaired’ is at sufficient information on biological Congress for proposed rules to be least equivalent to definitions of vulnerability and threat(s) to support finalized had expired (45 FR 65137; ‘endangered’ or ‘threatened’ under the issuance of a proposed rule to list but October 1, 1980). ESA [Endangered Species Act],’’ this is issuance of the proposed rule is not an appropriate comparison. Species Information precluded.’’ In previous CNORs, species According to its own Web site, matching this definition were known as The six species of sand dune beetles NatureServe’s assessment of any species category 1 candidates for listing. Thus, included in the petition and evaluated ‘‘does not constitute a recommendation the Service no longer considered in this finding are endemic, terrestrial by NatureServe for listing’’ under the category 2 species as candidates and did invertebrates of Great Basin and Mojave Act (http://www.natureserve.org/ not include them in the 1996 list or any Desert sand dunes of Nevada (Table 1). explorer/ranking.htm). In addition, subsequent CNORs. The decision to stop All of the petitioned species are from NatureServe’s assessment procedures considering category 2 species as the phylum Arthropoda, class Insecta, include ‘‘different criteria, evidence candidates was designed to reduce order Coleoptera, and family requirements, purposes and taxonomic confusion about the status of these Scarabaeidae. Three of the species are in coverage than government lists of species and to clarify that we no longer the genus Aegialia, two are in the genus endangered and threatened species, and regarded these species as candidates for Serica, and one is in the genus therefore these two types of lists should listing. Pseudocotalpa (Table 1). There are three not be expected to coincide’’ (http:// The Service proposed to list Giuliani’s distinct sand dune beetle and dune www.natureserve.org/explorer/ dune scarab as endangered or system groupings (Sand Mountain/ ranking.htm).

TABLE 1—NAMES AND LOCATIONS OF SIX SAND DUNE BEETLE SPECIES INCLUDED IN THIS FINDING

Common name Scientific name Sand dune system(s) Nevada county

Species for Which Substantial Information Indicating Listing May Be Warranted Was Not Presented in the Petition or in Service Files:

Hardy’s aegialian scarab ...... Aegialia hardyi ...... Sand Mountain ...... Churchill. Sand Mountain serican scarab ...... Serica psammobunus ...... Blowsand Mountains ......

Species for Which Substantial Information Indicating Listing May Be Warranted Was Presented in the Petition or in Service Files:

Crescent Dunes aegialian scarab ...... Aegialia crescenta ...... Crescent Dunes ...... Nye. Crescent Dunes serican scarab ...... Serica ammomenisco ...... Large aegialian scarab ...... Aegialia magnifica ...... Big Dune ...... Nye. Giuliani’s dune scarab ...... Pseudocotalpa giuliani ...... Lava Dune ......

Hardy’s aegialian scarab and the Sand 1,417.3 meters (m)) in elevation. It Mountains rise to an elevation of 4,593 Mountain serican scarab occur only at occupies approximately 12 square miles ft (1,400 m) and occupy 3.6 sq. mi (9.2 Sand Mountain and the nearby (sq. mi) (32 sq. km) on mostly Bureau sq km) (Bechtel et al. 1983, p. 477). Blowsand Mountains dune systems, of Land Management (BLM) lands, During a 1981 arthropod survey, Churchill County, Nevada (Gordon and though a portion of the dune may also Hardy’s aegialian scarab was found to be Cartwright 1977, p. 47; Bechtel et al. occur on State and private lands common in sand around the perennial 1983, p. 476; Hardy and Andrews 1987, (Bechtel et al. 1983, p. 477; Nevada shrub vegetation at the base of Sand p. 174; The Nature Conservancy (TNC) Natural Heritage Program 2006, p. 43). Mountain, but less common in similar (2004, pp. 23, 26). These two dune Blowsand Mountains is a complex of habitat at Blowsand Mountains, which systems are located approximately 30 star and linear dunes occurring partially the surveyor suspected was due to the miles (mi) (48.3 kilometer (km)) east- on Fallon Naval Air Station (NAS) lands limited area to which he had access southeast of Fallon, Churchill County, and BLM lands about 15.6 mi (25 km) (Rust 1981, pp. 13, 29). An undescribed Nevada. Sand Mountain is a star dune southwest of Sand Mountain (Bechtel et species of Serica, subsequently named (roughly star-shaped) and ranges from al. 1983, p. 477; Nachlinger et al. 2001, S. psammobunus (Sand Mountain 3,895 to 4,650 feet (ft) (1,187.2 to pp. A12–1, A12–11). Blowsand serican scarab) (Hardy and Andrews

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00041 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47126 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

1987, p. 174), was found to be very no more than 1.6 to 3.3 ft (0.5 to 1.0 m) threatened species due to one or more common on both dune systems (Rust beneath the surface (Hardy and of the five factors described in section 1981, p. 14). Andrews 1987, p. 175). Plant roots on 4(a)(1) of the Act: The Crescent Dunes aegialian scarab more stable dunes provide food for (a) The present or threatened and Crescent Dunes serican scarab are some Scarabaeidae, while detritus destruction, modification, or known to occur only at Crescent Dunes collected and buried in pockets by the curtailment of its habitat or range; northwest of Tonopah, Nye County, wind provides food for detritivores (b) Overutilization for commercial, Nevada (Gordon and Cartwright 1977, p. (beetles and other animals that feed on recreational, scientific, or educational 45; Hardy and Andrews 1987, p. 173). decomposing organic matter) (Hardy purposes; The Crescent Dunes are a small complex and Andrews 1987, p. 175). Many (c) Disease or predation; of crescent-shaped dunes (WildEarth genera of Scarabaeidae using dune areas (d) The inadequacy of existing Guardians 2010, p. 8). The highest dune seem to be unable to survive elsewhere regulatory mechanisms; or rises to 5,000 ft (1,524 m) in elevation in desert areas, including some species (e) Other natural or manmade factors (WildEarth Guardians 2010, p. 8). These of Aegialia and Serica (Hardy and affecting its continued existence. dunes occur on BLM lands and are Andrews 1987, p. 175). In considering what factors might managed by the agency’s Battle The six beetles vary in their dispersal constitute threats, we must look beyond Mountain District, Tonopah Resource abilities. The three aegialian scarabs the mere exposure of the species to the Area (BLM 1997, p. 21). (Crescent Dunes, Hardy’s, and large) are factor to determine whether the species The petition provided no information, all flightless, a characteristic that may responds to the factor in a way that and we have no information in our files, have facilitated population isolation and causes actual impacts to the species. If on the population sizes or population resulting speciation (formation of a new there is exposure to a factor, but no trends of the Crescent Dunes aegialian species) (Rust and Hanks 1982, p. 319; response, or only a positive response, scarab or the Crescent Dunes serican Porter and Rust 1996, p. 717; Porter and that factor is not a threat. If there is scarab. Rust 1997, p. 306). Giuliani’s dune exposure and the species responds The large aegialian scarab and scarab is capable of flight (Hardy 1976, negatively, the factor may be a threat Giuliani’s dune scarab occur only at Big p. 301). We have no information on the and we then attempt to determine how Dune and Lava Dune in the Amargosa dispersal abilities of the two serican significant a threat it is. If the threat is Desert, Nye County, Nevada (Gordon scarabs (Crescent Dunes and Sand significant, it may drive or contribute to and Cartwright 1977, p. 43; Rust 1985, Mountain) in our files, nor was any the risk of extinction of the species such p. 105). These dunes are located about provided in the petition. that the species may warrant listing as 4 mi (6.4 km) apart (WildEarth Hardy’s aegialian scarab is a flightless threatened or endangered as those terms Guardians 2010, p. 15). Big Dune is a detritivore that is active in winter at are defined by the Act. This does not complex star dune that reaches 2,731 ft Sand Mountain and Blowsand necessarily require empirical proof of a (832.4 m) in elevation and extends Mountains; both adults and larvae are threat. The combination of exposure and across approximately 1.5 sq mi (3.9 sq active in months having a mean some corroborating evidence of how the km). Lava Dune is sand that is trapped monthly temperature near or below 50 species is likely impacted could suffice. at the base of a cinder cone, has an °F (10 °C) (Rust 1981, pp. 13, 27; Rust The mere identification of factors that elevation of 2,800 ft (853.4 m), and and Hanks 1982, p. 324). The Sand could impact a species negatively may covers about 1.0 sq mi (2.6 sq km) Mountain serican scarab is active in not be sufficient to compel a finding (WildEarth Guardians 2010, p. 15). Both early summer on both dune systems that listing may be warranted. The dunes are managed by the BLM (Rust 1981, p. 14; Hardy and Andrews information shall contain evidence (WildEarth Guardians 2010, p. 15). 1987, p. 174). sufficient to suggest that these factors The petition provided no information Giuliani’s dune scarab is restricted to may be operative threats that act on the on the population sizes or trends of the the vegetated sandy areas around the species to the point that the species may large aegialian scarab or the Giuliani’s base of the major dune at Big Dune (43 meet the definition of threatened or dune scarab. We have anecdotal FR 35639; August 10, 1978). Larrea endangered under the Act. information that these two beetle tridentata (creosote bush) and Petalonyx In making this 90-day finding, we species occurred in ‘‘huge’’ numbers at thurberi (sandpaper plant), common evaluated whether information Big Dune as recently as 2007 (Murphy shrubs found here, accumulate plant regarding threats to the six sand dune 2007, p. 1). We have no information in debris at their bases. This accumulated beetle species, as presented in the our files on the population trends of plant debris is an important food source petition and other information available either species. and is the larval habitat of the beetle. in our files, is substantial, thereby There is limited life history Adults of Giuliani’s dune scarab emerge indicating that the petitioned action information for the six petitioned sand in late spring and fly nightly, hovering may be warranted. Our evaluation of dune beetle species available in the over dune shrubs, and mate on the sand this information is presented below. petition, references cited in the petition, surface; the adults do not feed and Summary of Common Threats and in our files. Many genera of larvae are found beneath dune shrubs Scarabaeidae in North American (Rust 1985, p. 109). The petition identified a few threats deserts, including species of the genera as common to many of the six Aegialia and Serica, are found in sand Evaluation of Information for This petitioned sand dune beetles. The dunes (Gordon and Cartwright 1977, p. Finding petition identified the following as 42; Hardy and Andrews 1987, p. 178). Section 4 of the Act (16 U.S.C. 1533) threats to all six sand dune beetle Sand dunes supply the necessary and its implementing regulations at 50 species: Loss, degradation, and requirements of an easily penetrable CFR 424 set forth the procedures for fragmentation of habitat due to ORV substrate that provides ready access to adding a species to, or removing a recreation and potential construction of higher levels of moisture and protection species from, the Federal Lists of solar facility projects; inadequate from temperature extremes; sand is Endangered and Threatened Wildlife existing regulatory mechanisms due to easily penetrable by both larvae and and Plants. A species may be the lack of Federal or State regulatory adults, and wet sand levels are generally determined to be an endangered or protection; and increased vulnerability

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00042 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47127

to extinction due to isolated populations species can stabilize dunes, preventing restricted to a designated trail system and limited habitat (WildEarth sand movement and altering habitat that prohibits ORV use of vegetated Guardians 2010, pp. 6–8, 11, 18, 19). functions. Invasive plant species may areas (72 FR 24253; May 2, 2007). Most These are described as general threats in also displace preferred vegetation used arthropods found during a survey at the petition, but there is little or no by beetles. Research also suggests that Sand Mountain occurred in association information in the petition that areas unprotected from ORV use contain with perennial shrub vegetation at the associates the threats with existing or much smaller populations of base of the dune and, except while probable impacts on the individual sand Coleopterans than in protected areas traveling, no species were found to dune beetle species. (Van Dam and Van Dam 2008, p. 415). inhabit open sand (Rust 1981, p. 2). On For two species, Hardy’s aegialian The petition also noted that a solar December 12, 2006, BLM implemented scarab and Sand Mountain serican energy facility has been proposed on an emergency restriction on motorized scarab, both of which are endemic to BLM lands near Crescent Dunes use on 3,985 ac (1,612 ha) of land to Sand Mountain and Blowsand (WildEarth Guardians 2010, p. 11). The prevent adverse effects to the habitat of Mountains in Churchill County, we BLM is also currently reviewing a the Sand Mountain blue butterfly have information in our files on ORV proposal to develop solar energy on (Euphilotes pallescens arenamontana) use and existing regulatory mechanisms. public land near the Big Dune Area of (72 FR 12187; March 15, 2007). These Due to the three distinct geographic Critical Environmental Concern (ACEC) restrictions reduce the route system groupings of the six petitioned species, (WildEarth Guardians 2010, p. 18). The within and outside of the SRMA from where appropriate, threats are assessed petition claims that, if the two solar an estimated 200 mi (320 km) to 21.5 mi below by dune system: Sand Mountain facilities are approved, the increased (34.4 km) (72 FR 24253; May 2, 2007). and Blowsand Mountains, Crescent activity from their construction and This returns the length of the route Dunes, and Big Dune and Lava Dune. maintenance may disturb beetles and system to about the length of the system Factor A. The Present or Threatened their habitat (WildEarth Guardians in 1980. The emergency restriction will Destruction, Modification, or 2010, p. 18). As noted above, these remain in effect until the Resource Curtailment of Its Habitat or Range threats are discussed below by dune Management Plan has been updated or system. until the Field Office Manager Information Provided in the Petition determines it is no longer needed (72 FR Evaluation of Information Provided in 12187; March 15, 2007). The Service has In general, the petition identifies ORV the Petition and in Our Files use as the most serious threat to the six found that implementation of this sand dune beetles (WildEarth Guardians Sand Mountain and Blowsand closure in 2006 effectively reduces the 2010, p. 6). The petition notes that ORV Mountains threat posed by ORVs to the Sand recreation has increased substantially Hardy’s aegialian scarab and the Sand Mountain blue butterfly’s habitat and over the past few decades, that it Mountain serican scarab occur only at ensures that further habitat destruction accounted for over 400,000 visitor days Sand Mountain and the nearby is prevented and will ensure natural on lands administered by the BLM in Blowsand Mountains, Churchill County. shrub regeneration over the long-term 2000 alone, and that the conditions of The petition provided information on (72 FR 24253; May 2, 2007). The sand dune habitats in Nevada are possible threats to these species from reduction of this ORV threat also influenced mostly by ORV use (Wildlife ORV recreation at Sand Mountain and applies to Hardy’s aegialian scarab and Action Plan Team (WAPT) 2006, p. Blowsand Mountains. In addition, we Sand Mountain serican scarab habitat at 238). have information in our files regarding Sand Mountain. Thus, the extent and The petition states that the six beetles potential impacts from the use of magnitude of potential impacts to depend on vegetation around the bases Blowsand Mountains as a military Hardy’s aegialian scarab and the Sand of the sand dunes for adult or larval bombing range. We discuss these Mountain serican scarab from ORV use forage, mating sites, and protective potential threats below. have decreased since the petition’s 2001 cover (Hardy 1976, pp. 301–302; Rust citation and are likely to remain so. In 1985, pp. 108–109; Hardy and Andrews ORV Recreation addition, the petition’s statement of 1986, p. 136; Hardy and Andrews 1987, The petition indicates that Sand closed areas as referenced in BLM pp. 175–176, 178). The petition cites Mountain is a 4,795-ac (1,941-ha) (2001) is incorrect. The BLM document several scientific studies that have designated Special Recreation (BLM 2001, p. REC–4) cites a Federal documented the severe negative impacts Management Area (SRMA) managed by Register Notice published on September that ORVs can have on insects in the the Stillwater Field Office of the BLM 15, 1988 (53 FR 35917). This Federal Order Coleoptera (Van Dam and Van (WildEarth Guardians 2010, p. 14). The Register Notice does not indicate closed Dam 2008, p. 411). Heavy use by ORVs petition states that ORV use can be areas to ORV use at Sand Mountain can destroy dune vegetation intense at times and that BLM has Recreation Area but indicates their use (Luckenbach and Bury 1983, p. 280; ‘‘closed’’ some areas to ORV use (BLM is limited in vegetated areas. We do not WAPT 2006, pp. 238–239), eliminating 2001, pp. REC–3, REC–4; WildEarth have information in our files on and fragmenting beetle habitat and Guardians 2010, p. 14). The petition potential violations of the 2006 ORV reactivate sand dune movement (Wiggs also states from an anonymous source restrictions. Therefore, we believe the et al. 1995, as cited by Van Dam and that ‘‘some’’ users ignore restrictions petition’s information regarding ORV Van Dam 2008, p. 411). In addition, and ride into areas that were closed in threats to these species’ habitat at Sand ORV use may disrupt beetle mating 2001 (WildEarth Guardians 2010, p. 14). Mountain is outdated and inaccurate. activity (Luckenbach and Bury 1983, p. The petition does not provide additional We discuss the adequacy of BLM’s 277), may potentially kill individual information pertaining to the number of regulation of this trail system in beetles (Van Dam and Van Dam 2008, p. or frequency with which these users protecting the habitat of the dune 416), and may facilitate the spread of violate restrictions and ride into closed beetles at Sand Mountain under Factor invasive plant species (WAPT 2006, p. areas. D below. 238). Sand dune systems are dynamic, Information in our files indicates that As indicated above, Blowsand and the establishment of invasive plant recreational ORV use is currently Mountains occur partially on Fallon

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00043 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47128 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

NAS lands and partially on BLM lands the overall viability of Blowsand We have no additional information in (Nachlinger et al. 2001, pp. A12–1, Mountains was determined to be good, our files related to this potential threat. A12–11). The petition does not provide potential impacts to populations of specific information related to ORV use Hardy’s aegialian scarab and the Sand Solar Energy Development at Blowsand Mountains. Mountain serican scarab from bombing According to the petition, Tonopah According to information in our files, practice at Blowsand Mountains are Solar Energy, LLC submitted a right-of- the Blowsand Mountains occur within considered low. way application and a plan of the Fallon Range Training Complex Based on the information available in development to the BLM’s Tonopah Military Operation Area, a 26-million- the petition and our files, we have Field Office for the construction and acre (ac) (10.5-million hectare (ha)) area determined that there is not substantial operation of a solar power generation used by the Naval Strike and Air information to indicate that listing facility (Crescent Dunes Solar Energy Warfare Center (TNC 2004, p. 11). Hardy’s aegialian scarab or the Sand Because a portion of the Blowsand Mountain serican scarab located at Sand Project), associated transmission Mountains dune system is used for inert Mountain and Blowsand Mountains facilities to the Anaconda Substation and live air-to-ground ordnance drops may be warranted due to the present or located 6 mi (9.7 km) north of the by the military, much of the area is not threatened destruction, modification, or project area, and access roads (74 FR open to public access and therefore is curtailment of their habitat or range. 61364; November 24, 2009). This facility not used for ORV recreation (TNC 2004, would have a generating capacity of up Crescent Dunes p. 12). According to TNC (2004, p. 48), to 160 megawatts (MW) of electricity ‘‘The only activities that take place on The Crescent Dunes aegialian scarab based on concentrating solar power this dune system are those related to the and Crescent Dunes serican scarab occur technology. The proposed plant, military training mission of NAS only at Crescent Dunes, Nye County including the heliostat array, power Fallon.’’ Therefore, the petition’s (Gordon and Cartwright 1977, p. 44; block, and associated facilities, would assertions regarding ORV use at Hardy and Andrews 1987, p. 173). The use approximately 1,600 ac (648 ha) of Blowsand Mountains impacting Hardy’s petition provided information on BLM-managed lands northwest of aegialian scarab and the Sand Mountain possible threats from ORV use at Tonopah, Nevada. This project is serican scarab are not supported. Crescent Dunes. In addition, the petition considered a ‘‘fast-track’’ project. provided information related to According to the BLM Nevada State Bombing Range potential impacts from a solar facility Office Web site, fast-track projects are Our files indicate, as noted above, that proposed near the dunes. We discuss those where the companies involved much of the Blowsand Mountains dune these potential threats below. have demonstrated to BLM that they system is within an active practice ORV Recreation have made sufficient progress to bombing range. A conservation formally start the environmental review assessment of the Blowsand Mountains According to the petition, Crescent and public participation process. dune system has been completed by a Dunes is a designated SRMA on 3,000 Projects that were cleared for approval team comprised of individuals from the ac (1,214 ha) of public lands by the Department of the Interior by BLM, Fallon NAS, TNC, Fallon Paiute administered by the Tonopah Field December 2010 are eligible for economic Shoshone Tribe, and Walker River Office of the BLM (BLM 1997, p. 21). stimulus funding under the American Paiute Tribe (TNC 2004). Threats The SRMA is open to ORV use year- Recovery and Reinvestment Act of 2009 identified to the Blowsand Mountains round (WildEarth Guardians 2010, p. (Pub. L. 111–5). All renewable energy dune system by the assessment team 11). Though no part of the dunes is projects proposed for BLM-managed were related to ordnance drops, reserved for the protection of sensitive lands receive full environmental detonation of unexploded ordnance, species, ORVs are required to stay on reviews required by the National and invasive weed transport during the roads, trails, and unvegetated dunes Environmental Policy Act, as amended removal of ordnance (TNC 2004, p. viii). (WildEarth Guardians 2010, p. 11). The (42 U.S.C. 4321 et seq.) (BLM 2010a, p. As part of the conservation assessment, petition does not provide any specific 1). The scoping period for this project the stressors at the Blowsand Mountains information regarding impacts to the closed on December 24, 2009 (74 FR dune system (habitat for Hardy’s Crescent Dunes aegialian scarab and 61364; November 24, 2009). The aegialian scarab and the Sand Mountain Crescent Dunes serican scarab from petition claims that increased activity serican scarab) were evaluated. Only ORV use. However, the petition from construction and maintenance of direct mortality to dune biota from provided information regarding an the proposed solar array, which would ordnance drops was rated as a high- opinion from The Nature Conservancy be located adjacent to the sand dunes, severity threat, but because it was of that recreation appeared to be a high may disturb beetles and their habitat. small geographic scope, the overall priority at Crescent Dunes with no stress ranking was determined to be low regard given to protection of the unique We have no additional information in (TNC 2004, p. 48). The assessment team animals of the dune system and no our files on this potential threat other also evaluated the viability of the analysis of the impacts of ORVs to these than that a draft environmental impact Blowsand Mountains dune system species or their habitat (BLM 1994, p. 5– statement is currently being prepared based on its size outside of the heavy- 116). We are unaware of any (BLM 2010b, p. 8). effect bombing area, its condition based management plans or emergency Based on the information available in on invasive species, and its connection restrictions being placed on motorized the petition and our files, we have to a current source of sand. The use at Crescent Dunes to protect the determined that there is substantial assessment team determined it to have Crescent Dunes aegialian scarab and the information to indicate that listing the an overall viability score of ‘‘good’’ Crescent Dunes serican scarab or their Crescent Dunes aegialian scarab and based on size and condition of the habitat. The adequacy of BLM’s Crescent Dunes serican scarab located at system and its landscape context (TNC regulations regarding this trail system in Crescent Dunes may be warranted due 2004, p. 32). Because the stress ranking protecting the habitat of the dune to the present or threatened destruction, from the conservation assessment was beetles at Crescent Dunes is discussed modification, or curtailment of their considered low for ordnance drops and under Factor D below. habitat or range.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00044 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47129

Big Dune and Lava Dune Solar Energy Development dune scarab at Crescent Dunes and Big Dune. The large aegialian scarab and According to the petition, Pacific While ORV use occurs at Sand Giuliani’s dune scarab occur only at Big Solar Investments, Inc., submitted a Mountain, we find that the Dune and Lava Dune, Nye County right-of-way application and plan of comprehensive, mandatory route (Gordon and Cartwright 1977, p. 43; development to the BLM’s Southern restrictions put in place in 2006 (72 FR BLM 1998a, p. 3–41), which are Nevada District Office for the 12187; March 15, 2007; 72 FR 24253; managed by the Southern Nevada construction, operation, maintenance, May 2, 2007) to protect the shrub habitat District Office of the BLM. The petition and termination of a solar power used by the Sand Mountain blue provided information on possible generation facility (Amargosa North butterfly also protects the two dune threats from ORV use at Big Dune and Solar Project), transmission substation, beetles (Hardy’s aegialian scarab and and switchyard facilities (74 FR 66146; Lava Dune. In addition, the petition Sand Mountain serican scarab) as they December 14, 2009). This facility would provided information related to also depend upon this shrub habitat (see have a generating capacity of about 150 potential impacts from a solar facility also Factor D discussion). We do not MW of electricity based on have information indicating that proposed near the dunes. We discuss concentrating solar power technology these potential threats below. violations of the 2006 ORV restrictions and would be located on about 7,500 ac occur, or occur frequently enough to ORV Recreation (3,035 ha) of BLM-managed lands in the impact the shrub habitat at Sand Amargosa Valley, Nye County. A Mountain. Off Road Vehicle recreation According to information provided by portion of Big Dune lies within the does not occur throughout much of the the petition, there is an 11,600-ac proposed project area. All renewable Blowsand Mountains’ dune system (4,694-ha) Big Dune SRMA, which energy projects proposed for BLM- because much of this area is not open includes a 1,920-ac (777-ha) ACEC at managed lands receive full to public access due to its location Big Dune (BLM 1998b, pp. 7, 23; environmental reviews required by the within the Fallon Range Training WildEarth Guardians 2010, p. 18). The National Environmental Policy Act. The Complex Military Operation Area, an objective of the SRMA is to provide for scoping period for this project closed on active practice bombing range. The moderate, casual ORV use; camping; February 12, 2010 (74 FR 66146; bombing operations at the Blowsand and other casual recreation December 14, 2009). Mountains are of limited geographic opportunities. The ACEC was According to information in our files, scope, and therefore have been ranked established in 1998 to protect beetle the reconnaissance-level biological as a low stress by an interagency habitat, but only 200 ac (81 ha) of the survey completed for the plan of assessment team. For these reasons, we 1,920 ac (777 ha) ACEC were set aside development states that ‘‘due to the do not find that the petition provides specifically as beetle habitat (BLM proximity of the endemic beetles ACEC, substantial information indicating that 1998b, p. 23). This is considered it will be important to address the the Hardy’s aegialian scarab or Sand inadequate by the petitioner when potential affect [sic] of any adjacent Mountain serican scarab may be compared to the Service’s previous development to the continued habitat warranted for listing under Factor A, the proposal to list Giuliani’s dune scarab function and viability of this ACEC’’ present or threatened destruction, and designate critical habitat over the (CH2MHILL 2008, p. 3–1). We have no modification, or curtailment of their entire dune in 1978 (43 FR 35636; additional information in our files on habitat or range. August 10, 1978) (WildEarth Guardians this potential threat to the large Therefore, based on our evaluation of 2010, p. 18). In addition, ORV use is aegialian scarab and Giuliani’s dune the information available in the petition allowed on the designated route system scarab at Big Dune. and our files, we find that the petition within the 200 ac (81 ha) specified as Based on the information available in does not present substantial information beetle habitat (BLM 1998b, p. 23). the petition and our files, we have to indicate that listing Hardy’s aegialian Within the entire 1,920-ac (777-ha) determined that there is substantial scarab and the Sand Mountain serican ACEC, speed-based, competitive ORV information to indicate that listing the scarab may be warranted, but the information available in the petition and events are prohibited (BLM 1998b, p. large aegialian scarab and Giuliani’s in our files does present substantial 23). Because nonvegetated portions of dune scarab at Big Dune and Lava Dune information to indicate that listing may the Big Dune SRMA outside of may be warranted due to the present or be warranted for the Crescent Dunes designated beetle habitat are managed as threatened destruction, modification, or curtailment of their habitat or range. aegialian scarab, Crescent Dunes serican open to ORV use, the petition indicates scarab, the large aegialian scarab, and that heavy ORV use occurs over large Summary of Factor A Giuliani’s dune scarab due to the areas of the rest of Big Dune and the present or threatened destruction, immediate surrounding area (BLM We find that the petition and information in our files provide modification, or curtailment of their 1998b, p. 24; WildEarth Guardians 2010, habitat or range. p. 18). Lava Dune has no special substantial information that ORV management designation. The petition recreation is a potential threat to the Factor B. Overutilization for does not provide any specific Crescent Dunes aegialian scarab and Commercial, Recreational, Scientific, or Crescent Dunes serican scarab that information regarding impacts to the Educational Purposes occur at Crescent Dunes and to the large large aegialian scarab and Giuliani’s aegialian scarab and Giuliani’s dune Information Provided in the Petition dune scarab from ORV use at Lava scarab that occur at Big Dune and Lava The petition notes that collection of Dune. The adequacy of BLM’s Dune. We also find that the petition individuals for scientific purposes has regulations regarding ORV use at Big provides substantial information that occurred over the years, but does not Dune and Lava Dune is discussed under solar energy development may be a provide information about whether this Factor D. threat to the Crescent Dunes aegialian constitutes a threat to any of the six We have no additional information in scarab, Crescent Dunes serican scarab, sand dune beetle species (WildEarth our files related to this potential threat. large aegialian scarab, and Giuliani’s Guardians 2010, p. 7).

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00045 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47130 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

Evaluation of Information Provided in of the six sand dune beetles may be species that are unique to each SRMA. the Petition and in Our Files warranted due to disease or predation. Occurrences outside of the SRMAs are discussed within this framework. The petition does not provide Factor D. The Inadequacy of Existing information that overutilization for Regulatory Mechanisms Evaluation of Information Provided in commercial, recreational, scientific, or the Petition and in Our Files Information Provided in the Petition educational purposes has negatively The petitioned dune beetles occur on Sand Mountain and Blowsand impacted any of the six petitioned Mountains beetle species. We have no information Federal lands managed either by the in our files to indicate that BLM or the Department of Defense. The Hardy’s aegialian scarab and the Sand overutilization for commercial, populations on BLM lands all occur Mountain serican scarab are known only recreational, scientific, or educational within or adjacent to areas managed from Sand Mountain and nearby purposes is a threat to any of the six primarily for ORV use and designated as Blowsand Mountains. Sand Mountain is species. SRMAs. The petition states that none of a designated SRMA managed by the Therefore, based on our evaluation of the six petitioned sand dune beetle BLM Stillwater Field Office that extends the information provided in the species has legal protection (WildEarth over 4,795 ac (1,941 ha). The petition petition, we do not consider the petition Guardians 2010, pp. 7–18). All six states that the BLM has closed some or information in our files to provide petitioned species are listed as BLM areas to ORV use (BLM 2001, pp. REC– substantial scientific or commercial sensitive species (BLM 2007, pp. J–3, J– 3 and REC–4; WildEarth Guardians information indicating that listing of 35). According to information in our 2010, p. 14). The petition also cites a any of the six petitioned beetles may be files, BLM sensitive species are defined 2009 anonymous source who stated that warranted due to overutilization for as ‘‘species that require special some ORV users have ignored these commercial, recreational, scientific, or management or considerations to avoid 2001 restrictions and ride in closed educational purposes. potential future listing’’ (BLM 2008, areas (WildEarth Guardians 2010, p. 14). Glossary p. 5). The stated objective for We have information in our files that Factor C. Disease or Predation sensitive species is to initiate proactive the ORV restrictions mentioned in the Information Provided in the Petition conservation measures that reduce or 2001 Carson City Field Office Resource eliminate threats to minimize the Management Plan (CCRMP) (BLM 2001) According to information provided by likelihood of and need for listing (BLM cited by the petition have been the petition, nighthawks (Chordeiles 2008, Section 6840.02). Conservation, as superseded by more comprehensive minor) were observed preying on it applies to BLM sensitive species, is ORV restrictions implemented in 2006 Andrew’s dune scarab (Pseudocotalpa defined as ‘‘the use of programs, plans, to prevent adverse effects to the habitat andrewsi) at Algodones Dunes in and management practices to reduce or of the Sand Mountain blue butterfly (72 southern California (Hardy and eliminate threats affecting the status of FR 12187; March 15, 2007). The Service Andrews 1986, p. 137), a dune system the species, or improve the condition of has previously found that similar to those used by the petitioned the species’ habitat on BLM- implementation of this closure, which beetles (WildEarth Guardians 2010, p. administered lands’’ (BLM 2008, includes a designated ORV route system 7). Foxes (Vulpes macrotis) and coyotes Glossary p. 2). throughout the vegetated portions of the (Canis latrans) may also prey on sand The petition also notes that although SRMA, effectively reduces the threat dune beetles (Hardy and Andrews 1986, some of the petitioned beetles may posed by ORVs to the Sand Mountain p. 137). Rust (1985, p. 109) stated that occur at ‘‘preliminary focal areas’’ blue butterfly’s habitat and ensures that no predation of Guiliani’s dune scarab identified in the Nevada Wildlife Action further habitat destruction is prevented was observed at Big Dune or Lava Dune Plan, this plan does not prescribe and will ensure, over the long-term, although many potential predators were conservation measures for sensitive natural shrub regeneration (72 FR observed. invertebrates in Nevada (WAPT 2006). 24253; May 2, 2007). The reduction of The petition states that disease is not Moreover, the petition points out that this ORV threat to the butterfly’s habitat known to be a threat to any of the six Nevada Revised Statute 501.110 also applies to this shared habitat with petitioned beetles (WildEarth Guardians provides only for the protection of Hardy’s aegialian scarab and the Sand 2010, p. 7). invertebrates classified as either Mountain serican scarab since these two Evaluation of Information Provided in mollusks or crustaceans, and not other beetles occupy similar habitat as the the Petition and in Our Files invertebrates. Under current statute, Sand Mountain blue butterfly. therefore, beetles cannot be provided The Blowsand Mountains dune The petition does not provide specific State protection (WildEarth Guardians system is under the jurisdiction of the information that predation or disease 2010, p. 7). Department of Defense and is within a has negatively impacted the six The petition provides some practice bombing range used by the petitioned sand dune beetles. While information on the Federal management Fallon NAS. The petition provides no predation of the sand dune beetles of the three SRMAs at which the dune information on the management of the would be a common occurrence, it is beetles occur (WildEarth Guardians Blowsand Mountains. As previously unknown whether predation may be 2010, pp. 11, 14–15, 18–19). Each of the noted under Factor A, information in occurring at such a level that it is SRMAs includes habitat for only two of our files states that because of its use for negatively affecting these species. We the six petitioned species and none of military bombing training operations, do not have information in our files to these species occur at more than one much of the area is not open to public indicate that predation or disease is a SRMA, although some of the six access and therefore is not used for ORV potential threat to any of these species. petitioned beetles also occur at other recreation (TNC 2004, p. 12). An Therefore, based on our evaluation of nearby dune systems. In addition, each interagency assessment team concluded the information in the petition and in of the three SRMAs has specific that while direct mortality to dune biota our files, we have determined that the management restrictions. For these from bomb drops can be severe, it was petition does not provide substantial reasons, existing regulatory mechanisms of small geographic scope within the information to indicate that listing any are more easily assessed for the pairs of Blowsand Mountains and, therefore, its

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00046 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47131

overall stress ranking was considered were found to be valid, decisions to requirements of the beetles (BLM 1998b, low (TNC 2004, p. 48). designate ACECs were withheld and p. 23). Lands within the ACEC are Therefore, based on the information that an ACEC Plan Amendment would designated as a rights-of-way exclusion provided in the petition and available in be prepared over the next 2 years to area and are closed to locatable mineral, our files, we have determined that the address these points of protest (BLM salable mineral, and solid leasable petition does not present substantial 1997, p. 3); we have no information in mineral entry; fluid mineral leasing is information to indicate that listing the our files regarding whether this plan allowed, subject to a no-surface- Hardy’s aegialian scarab or the Sand amendment was ever prepared. Another occupancy stipulation (BLM 1998b, p. Mountain serican scarab may be commenter, The Nature Conservancy, 7). The LVRMP does not specifically warranted due to the inadequacies of expressed the opinion that recreation address management of renewable existing regulatory mechanisms. appeared to be high priority at Crescent resources such as solar energy (BLM Crescent Dunes Dunes with no regard given to 1998b). There is no livestock grazing protection of the unique animals of the within the ACEC. A BLM brochure The Crescent Dunes aegialian scarab dune system and no analysis of the states that a 5-ac (2-ha) area within the and Crescent Dunes serican scarab are impacts of ORVs to these species or ACEC on the east side of the dunes has known only from the Crescent Dunes, their habitat (BLM 1994, pp. 5–116). been set aside specifically for the where a total of 3,000 ac (1,214 ha) has The BLM responded that impacts to protection of beetle habitat (BLM 2010c, been designated as the Crescent Sand sensitive species would be addressed in p. 1). We have no information in our Dunes SRMA in the Tonopah Resource the SRMA plan (BLM 1994, pp. 5–159). files that explains the discrepancy Management Plan (TRMP) (BLM 1997, According to the petition, no between the 200 ac (81 ha) protected p. 21). The petition provides no management plan has been prepared for area identified in the LVRMP and the 5 information, nor do we have any the SRMA (WildEarth Guardians 2010, ac (2 ha) area described in the brochure. information in our files, regarding p. 11). We are unaware of any other In our files, we have correspondence whether either of these species occurs restrictions being placed on motorized that indicates that a study of the outside of the designated SRMA use at Crescent Dunes to protect the distribution of the beetles and their boundary. The Record of Decision Crescent Dunes aegialian scarab and the ecological requirements was initiated at (ROD) for the TRMP states that vehicle Crescent Dunes serican scarab or their Big Dune in 2007 (Murphy 2007, p. 1). use within the SRMA will be limited to habitat as was done at Sand Mountain This correspondence includes a existing roads and trails, although ORV to protect the Sand Mountain blue statement that the researchers were use on unvegetated areas may be butterfly and its habitat. successful in locating both endemic allowed provided that such vehicle use Therefore, based on the information scarab beetles in ‘‘huge’’ numbers is compatible with the area’s values provided in the petition and available in although ORV activities were having (BLM 1997, p. 21). The Crescent Dunes our files, we have determined that the impacts (Murphy 2007, p. 1). This SRMA is closed to competitive petition does present substantial survey information, however, is recreational events to protect sensitive information to indicate that listing the anecdotal, and we lack sufficient details resource values (BLM 1997, p. 20). Fluid Crescent Dunes aegialian scarab and the or a written report to evaluate this mineral leasing is allowed, subject to a Crescent Dunes serican scarab may be claim. We have no information on the no-surface-occupancy stipulation (BLM warranted due to the inadequacies of status of the beetles at the nearby Lava 1997, p. 21). The TRMP does not existing regulatory mechanisms. Dune, which has no special specifically address management of management designations. renewable resources such as solar Big Dune and Lava Dune Therefore, based on the information energy (BLM 1997). No specific mention The large aegialian scarab and provided in the petition and available in is made of either beetle species in the Giuliani’s dune scarab are known only our files, we have determined that the TRMP, although it states that Nevada from Big Dune and Lava Dune. petition does present substantial BLM Sensitive Species will be managed According to the petition, in the Las information to indicate that listing the to maintain or increase current Vegas Resource Management Plan large aegialian scarab and Giuliani’s population levels (BLM 1997, p. 9). We (LVRMP), the BLM designated an dune scarab may be warranted due to are not aware of any specific 11,600-ac (4,694-ha) SRMA, which the inadequacies of existing regulatory conservation actions or plans for either includes a 1,920-ac (777-ha) ACEC at mechanisms. the Crescent Dunes aegialian scarab or Big Dune (BLM 1998b, pp. 7, 23). The the Crescent Dunes serican scarab. objective of the SRMA is to provide for Summary of Factor D The petition noted that during the moderate, casual ORV use; camping; We find that the petition provides public participation process for the and other casual recreation substantial information that there may proposed TRMP, the BLM received a opportunities. The ACEC was be inadequate existing regulatory letter from the Nevada Outdoor established to protect beetle habitat. The mechanisms related to ORV use and Recreation Association, Inc. urging them management direction is to prohibit solar facility siting and, therefore, a to designate the Crescent Dunes as an ORV use within 200 ac (81 ha) of dune potential threat to the Crescent Dunes ACEC to protect endemic species, beetle habitat within the ACEC, except aegialian scarab and the Crescent Dunes including the Crescent Dunes aegialian on the designated route through it, to serican scarab that occur at Crescent scarab (BLM 1994, pp. 5–12). The BLM ensure continued survival of the native Dunes, and to the large aegialian scarab responded that a 14,000-ac (5,666 ha) beetle population. Speed-based and Giuliani’s dune scarab that occur at area at Crescent Dunes was examined competitive ORV events within the Big Dune and Lava Dune. for ACEC potential and determined not ACEC are also prohibited (BLM 1998b, While ORV use also occurs at Sand to meet the importance criterion as p. 23). Other commercial activities and Mountain (see also Factor A discussion), defined in BLM policy (BLM 1994, pp. permitted events are allowed on a case- we believe that the mandatory route 5–125); no further explanation was by-case basis. The management restrictions in place since 2006 protect provided. In the ROD for the TRMP, the direction stipulates that long-term the shrub habitat on which the two BLM stated that as a result of several recreation management within the dune beetles that occur there depend. points of protest concerning ACECs that dunes be based on the minimum habitat We do not have information indicating

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00047 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47132 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

that violations of the 2006 restrictions estimates from hundreds of individuals of threats, that may be affecting a occur, or occur frequently enough to documented in 1970 to only a few particular species. However, in the impact the dune beetles’ shrub habitat. individuals by the early 1990s; no live absence of information identifying Off Road Vehicle recreation does not snails have been located in recent chance events or other threats and the occur throughout much of the Blowsand surveys (Service 2009a, p. 4). The potential for such chance events to Mountains’ dune system because much petition notes that, in the case of occur in occupied habitats, and of it is not open to public access. The Langford’s tree snail, the Service relied connecting them to a restricted bombing operations at the Blowsand on citations not specific to this species geographic range of a species, we do not Mountains are of limited geographic that state that small populations are consider chance events, restricted scope and, therefore, direct mortality to particularly vulnerable to reduced geographic range, or rarity by dune biota was given a low stress reproductive vigor caused by inbreeding themselves to be threats to a species. ranking by an interagency assessment depression, and may suffer a loss of Therefore, based on our evaluation of team. Solar facilities are not being genetic variability over time due to the information provided in the petition proposed at or near Sand Mountain or random genetic drift (WildEarth and our files, we have determined that Blowsand Mountains. For these reasons, Guardians 2010, p. 8). The petition also the petition does not present substantial we do not consider the petition to states that many species in the Great information to indicate that listing any provide substantial information that Basin and Mojave Deserts, especially of the six sand dune beetle species may listing Hardy’s aegialian scarab or the species adapted to specialized habitats be warranted due to other natural or Sand Mountain serican scarab, endemic such as sand dunes, have evolved and manmade factors affecting these species’ to Sand Mountain and the Blowsand continue to persist in isolation with continued existence. Mountains, may be warranted due to the limited distribution (Brussard et al. Finding inadequacies of existing regulatory 1998, pp. 514–520). On the basis of our determination mechanisms. Evaluation of Information Provided in under section 4(b)(3)(A) of the Act, we Therefore, based on our evaluation of the Petition and in Our Files the information available in the petition find that the petition does not present and our files, we have determined that The petition provided no population substantial scientific or commercial the petition does not present substantial estimates or trends for any of the six information indicating that listing information to indicate that listing petitioned species, nor do we have Hardy’s aegialian scarab and the Sand Hardy’s aegialian scarab and the Sand definitive population estimates or Mountain serican scarab throughout Mountain serican scarab may be trends for any of these beetles in our their entire range may be warranted. On warranted, but the information available files. We do have anecdotal information the basis of our determination under in the petition and our files does present in our files that indicates that ‘‘huge’’ section 4(b)(3)(A) of the Act, we have substantial information to indicate that populations of two scarab beetles (large determined that the petition presents listing may be warranted for the aegialian scarab and Giuliani’s dune substantial scientific or commercial Crescent Dunes aegialian scarab, scarab) were present as recently as 2007 information that listing the Crescent Crescent Dunes serican scarab, large at Big Dune (Murphy 2007, p. 1). Dunes aegialian scarab, Crescent Dunes In a genetics study of five species of aegialian scarab, and Giuliani’s dune serican scarab, large aegialian scarab, Aegialia, researchers found that three scarab, due to the inadequacies of and Giuliani’s dune scarab throughout flightless species, which included existing regulatory mechanisms. their entire range may be warranted. Hardy’s aegialian scarab and the large The petition presents substantial Factor E. Other Natural or Manmade aegialian scarab, had low genetic information indicating that listing the Factors Affecting Its Continued distance measures but relatively high Crescent Dunes aegialian scarab may be Existence estimates of gene flow (Porter and Rust warranted due to Factors A and D. The 1996, p. 719). They suggested that Information Provided in the Petition petition does not present substantial flightless Aegialia populations within information indicating that listing the The petition states that the six Great Basin dune systems may be Crescent Dunes aegialian scarab may be petitioned sand dune beetles have extremely large and have levels of gene warranted due to Factors B, C, or E. limited distribution and apparently flow high enough to maintain high The petition presents substantial small populations, increasing the genetic similarity, and therefore low information indicating that listing the likelihood of extinction (WildEarth genetic distances (Porter and Rust 1996, Crescent Dunes serican scarab may be Guadians 2010, p. 8). In support of this p. 719). warranted due to Factors A and D. The claim, the petition cites Service status Neither the petition, nor the petition does not present substantial assessments for a ground-dwelling snail information in our files, provides information indicating that listing the [Sisi (Ostodes strigatus)], and for information that directly indicates that Crescent Dunes serican scarab may be Langford’s tree snail (Partula limited distribution, in and of itself, is warranted due to Factors B, C, or E. langfordii), in which the Service found a substantial threat to the petitioned The petition presents substantial that the small number of individuals or dune beetle species. The petition does information indicating that listing the the small number of extant populations not provide information on chance large aegialian scarab may be warranted made these species more vulnerable to events or other threats to the six species due to Factors A and D. The petition extinction (Service 2009a, pp. 4–5; and connect such threats to small does not present substantial information 2009b, pp. 5–6). These assessments population numbers or restricted range indicating that listing the large aegialian differ substantially, however, from our or the potential for such threats to occur scarab may be warranted due to Factors current considerations for the six in occupied habitats in the future. B, C, or E. petitioned sand dune beetles. The total Limited distribution and small The petition presents substantial population of Sisi was estimated at population numbers or sizes are information indicating that listing fewer than 50 individuals in the early considered in determining whether the Giuliani’s dune scarab may be 1990s (Service 2009a, p. 3). In the case petition provides substantial warranted due to Factors A and D. The of Langford’s tree snail, there is a record information regarding natural or petition does not present substantial of historical declines in population anthropogenic threat, or a combination information indicating that listing

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00048 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47133

Giuliani’s dune scarab may be DEPARTMENT OF THE INTERIOR as listed under FOR FURTHER warranted due to Factors B, C, or E. INFORMATION CONTACT. Fish and Wildlife Service Because we have found that the FOR FURTHER INFORMATION CONTACT: petition presents substantial Dave Hankla, Field Supervisor, North 50 CFR Part 17 information that listing four of the six Florida Ecological Services Office, U.S. species may be warranted, we are [Docket No. FWS–R4–ES–2011–0045; MO Fish and Wildlife Service, Attn: initiating status reviews (12-month 92210–0–0008–B2] Leatherback CH Review; by mail at 7915 findings) to determine whether listing Baymeadows Way, Suite 200, these four species under the Act is Endangered and Threatened Wildlife Jacksonville, FL 32256; by telephone (904–731–3336); by facsimile (904–731– warranted. and Plants; 90-Day Finding and 12-Month Determination on a Petition 3045); or by e-mail at The ‘‘substantial information’’ To Revise Critical Habitat for the [email protected]. If you use a standard for a 90-day finding differs Leatherback Sea Turtle telecommunications device for the deaf from the Act’s ‘‘best scientific and (TDD), please call the Federal commercial data’’ standard that applies AGENCY: Fish and Wildlife Service, Information Relay Service (FIRS) at to a status review to determine whether Interior. 800–877–8339. a petitioned action is warranted. A 90- ACTION: Notice of 90-day petition SUPPLEMENTARY INFORMATION: day finding does not constitute a status finding and notice of 12-month review under the Act. In 12-month determination. Background findings, we determine whether a Section 4(b)(3)(D) of the Act of 1973, SUMMARY: We, the U.S. Fish and petitioned action is warranted after we as amended (16 U.S.C. 1531 et seq.) Wildlife Service (Service), announce our have completed thorough status reviews requires that we make a finding on 90-day finding and 12-month whether a petition to revise critical of the species, which are conducted determination on how to proceed in following substantial 90-day findings. habitat for a species presents substantial response to a petition to revise critical scientific information indicating that the Because the Act’s standards for 90-day habitat for the leatherback sea turtle and 12-month findings are different, as revision may be warranted. In (Dermochelys coriacea) pursuant to the determining whether substantial described above, a substantial 90-day Endangered Species Act of 1973, as finding does not mean that a 12-month information exists, we take into account amended (Act). The petition asks the several factors, including information finding will result in a warranted Service and the National Marine finding. submitted with, and referenced in, the Fisheries Service (NMFS) (Services) to petition and all other information revise the existing critical habitat References Cited readily available in our files. Our listing designation for the leatherback sea turtle regulations at 50 CFR 424.14(c)(2) A complete list of references cited is by adding the coastline and offshore further require that, in making a finding available on the Internet at http:// waters of the Northeast Ecological on a petition to revise critical habitat, www.regulations.gov and upon request Corridor of Puerto Rico to the critical we consider whether the petition from the Nevada Fish and Wildlife habitat designation. Our 90-day finding contains information indicating that Office (see FOR FURTHER INFORMATION is that the petition, in conjunction with areas petitioned to be added to critical the information readily available in our CONTACT). habitat contain the physical and files, presents substantial scientific biological features essential to, and that Author information indicating that the may require special management to requested revision may be warranted. provide for, the conservation of the The primary authors of this document Our 12-month determination is that we are the staff members of the Nevada Fish species; or information indicating that intend to proceed with processing the areas currently designated as critical and Wildlife Office (see FOR FURTHER petition by assessing critical habitat INFORMATION CONTACT). habitat do not contain resources during the future planned status review essential to, or do not require special Authority for the leatherback sea turtle. management to provide for, the DATES: The finding announced in this conservation of the species involved. The authority for this action is the document was made on August 4, 2011. To the maximum extent practicable, Endangered Species Act of 1973, as ADDRESSES: This finding is available on we are to make this finding within 90 amended (U.S.C. 1531 et seq.). the Internet at http:// days of our receipt of the petition and Dated: July 21, 2011. www.regulations.gov at Docket Number publish our notice of the finding Gregory E. Siekaniec, FWS–R4–ES–2011–0045. Information promptly in the Federal Register. We and supporting documentation that we are to base this finding on information Acting Director, U.S. Fish and Wildlife received and used in preparing this provided in the petition, supporting Service. finding is available for public inspection information submitted with the petition, [FR Doc. 2011–19743 Filed 8–3–11; 8:45 am] by appointment, during normal business and information otherwise available in BILLING CODE 4310–55–P hours at the North Florida Ecological our files. If we find that a petition Services Office, U.S. Fish and Wildlife presents substantial information Service, 7915 Baymeadows Way, Suite indicating that the revision may be 200, Jacksonville, FL 32256 and at the warranted, we are required to determine U.S. Fish and Wildlife Service, how we intend to proceed with the Caribbean Ecological Services Field requested revision within 12 months Office, Road 301, Km. 5.1, Boquero´n, after receiving the petition and Puerto Rico 00622. Please submit any promptly publish notice of such new information, materials, comments, intention in the Federal Register. or questions concerning this finding to Critical habitat is defined under the above mailing address or the contact section 3(5)(A) of the Act as:

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00049 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47134 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

(i) The specific areas within the 1969 (Pub. L. 91–135; 83 Stat. 275), a as critical habitat (75 FR 319). The areas geographical area occupied by the precursor to the Act. The Service proposed for designation encompass species, at the time it is listed in designated critical habitat for the approximately 70,600 square miles accordance with the Act, on which are leatherback sea turtle on March 23, 1978 (182,854 square km) of marine habitat. found those physical or biological (43 FR 12050), in the U.S. Virgin Islands Specific areas proposed for designation features to include: ‘‘A strip of land 0.2 miles include two adjacent areas covering (I) Essential to the conservation of the wide (from mean high tide inland) at 46,100 square miles (119,400 square km) species and Sandy Point Beach on the western end stretching along the California coast (II) Which may require special of the island of St. Croix beginning at from Point Arena to Point Vincente and management considerations or the southwest cape to the south and an area covering 24,500 square miles protection; and running 1.2 miles northwest and then (63,455 square km) stretching from Cape (ii) Specific areas outside the northeast along the western and Flattery, WA, to the Umpqua River geographical area occupied by the northern shoreline, and from the (Winchester Bay), OR, east of a line species at the time it is listed, upon a southwest cape 0.7 miles east along the approximating the 6,562-ft (2,000-meter) determination that such areas are southern shoreline.’’ This critical depth contour. A final determination essential for the conservation of the habitat designation appears in our has not yet been published by NMFS. species. regulations at 50 CFR 17.95(c). NMFS Petition History Our implementing regulations at 50 designated critical habitat for the CFR 424.12 describe our criteria for leatherback sea turtle on March 23, 1979 On February 22, 2010, the Service and designating critical habitat. We are to (44 FR 17710), in the U.S. Virgin Islands NMFS received a petition dated consider physical and biological to include: ‘‘The waters adjacent to February 22, 2010, from Craig Segall of features essential to the conservation of Sandy Point, St. Croix, U.S. Virgin the Sierra Club, requesting that we the species. Those features include, but Islands, up to and inclusive of the revise critical habitat for the leatherback are not limited to: (1) Space for waters from the hundred fathom curve sea turtle (Dermochelys coriacea) to individual and population growth, and shoreward to the level of mean high tide include nesting beaches and offshore normal behavior; (2) Food, water, air, with boundaries at 17°42′12″ North and marine habitats in Puerto Rico pursuant light, minerals, or other nutritional or 64°50′00″ West.’’ This critical habitat to the Act and the Administrative physiological requirements; (3) Cover or designation appears in the NMFS Procedure Act (APA). Section 553 of the shelter; (4) Sites for breeding, regulations at 50 CFR 226.207. In 1984, APA states that, ‘‘Each agency shall give reproduction, or rearing of offspring; the Sandy Point National Wildlife an interested person the right to petition and (5) Habitats that are protected from Refuge was established; the refuge for the issuance, amendment, or repeal disturbance or are representative of the completely encompasses the stretch of of a rule’’ (5 U.S.C. 553(e)). historic geographical and ecological beach that was designated as critical The petition clearly identified itself as distribution of a species. Essential habitat in 1978. such and included the requisite physical and biological features may On October 2, 2007, NMFS received a identification information for the include, but are not limited to, nesting petition from the Center for Biological petitioner, as required by 50 CFR grounds, feeding sites, water quality, Diversity, Oceana, and Turtle Island 424.14(a). The petition asserted that the geological formations, tides, and Restoration Network to revise the beaches of the Northeast Ecological specific soil types. Our implementing leatherback sea turtle critical habitat Corridor (NEC) of Puerto Rico (which regulations at 50 CFR 424.02 define designation. The petitioners sought to would fall under the jurisdiction of the ‘‘special management considerations or revise the critical habitat designation to Service) are ‘‘centrally important to the protection’’ as any methods or include the area NMFS was already U.S. Caribbean leatherback population, procedures useful in protecting physical managing under the authority of the and should be designated as critical and biological features of the Magnuson-Stevens Fishery habitat.’’ The petition also maintained environment for the conservation of the Conservation and Management Act to that the near-shore coastal waters off species. reduce leatherback sea turtle those beaches (which would fall under Section 4(b)(2) of the Act requires us interactions in the California-Oregon the jurisdiction of NMFS) ‘‘provide to designate and make revisions to drift gillnet fishery targeting swordfish room for turtles to mate and to access critical habitat for listed species on the and thresher shark. This area the beaches, and for hatchlings and basis of the best scientific data available encompasses roughly 200,000 square adults to leave the beaches.’’ It likewise and after taking into consideration the miles (321,870 square kilometers (km)) asserted that the coastal zone within the economic impact, the impact on of the Exclusive Economic Zone from 45 NEC is particularly vulnerable to national security, and any other relevant degrees North latitude about 100 miles developmental pressure and to the impact, of specifying any particular area (160 km) south of the Washington- growing impacts of climate change, and as critical habitat. The Secretary may Oregon border southward to Point Sur so warrants protection as critical exclude any particular area from critical and along a diagonal line due west of habitat. habitat if he determines that the benefits Point Conception, CA, and west to 129 The petition also requested that the of such exclusion outweigh the benefits degrees West longitude. agencies revise the recovery plan for the of specifying such area as part of the On December 28, 2007, NMFS leatherback sea turtle at the earliest critical habitat. Unless, he determines published a 90-day finding that the possible time, and that the agencies that the failure to designate such area as petition presented substantial scientific issue no Atlantic leatherback-related critical habitat, will result in the information indicating that the incidental take permits (save for permits extinction of the species concerned. petitioned action may be warranted and supporting pure conservation research), initiated a review of the critical habitat issue no Atlantic leatherback-related Previous Federal Actions of the species to determine whether the habitat conservation plan, issue no In 1970, the leatherback sea turtle was petitioned action was warranted (72 FR Atlantic leatherback-related biological listed as endangered (35 FR 8491; June 73745). On January 5, 2010, NMFS opinion, and take no other final agency 2, 1970) in accordance with the proposed regulations to designate action that could affect the Atlantic Endangered Species Conservation Act of specific areas within the Pacific Ocean population of the leatherback sea turtle

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00050 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47135

or its habitat, until the petition to revise under its jurisdiction and determined of Good Hope, South Africa (Ma´rquez critical habitat was ruled on and that the petition did not present M. 1990, pp. 54–55; Hughes et al. 1998, without taking climate change fully into substantial scientific information entire; Luschi et al. 2003, entire; Luschi account. However, none of these indicating that the petitioned action et al. 2006, pp. 53–54), and nesting additional requests are petitionable may be warranted (75 FR 41436). On occurs in both the eastern and western under the Act and, therefore, they are November 2, 2010, the Sierra Club Atlantic. Although leatherback sea not addressed in this 90-day finding and submitted to NMFS a second petition turtles occur in Mediterranean waters, 12-month determination. that included additional data supporting no nesting is known to take place in this Under the Act, the Service and NMFS the requested action. In response to the region (Casale et al. 2003, pp. 136–138). each have respective areas of second petition, NMFS made a 90-day Historical descriptions of leatherback jurisdiction over sea turtles, as clarified finding that the petition presented sea turtles are rarely found in the by the 1977 Memorandum of substantial information indicating that accounts of early sailors, and the size of Understanding Defining the Roles of the the petitioned revision of designated their population before the mid-20th U.S. Fish and Wildlife Service and the critical habitat for leatherback sea century is speculative (NMFS and National Marine Fisheries Service in turtles may be warranted (May 5, 2011; Service 2007, p. 26). Even for large Joint Administration of the Endangered 76 FR 25660). nesting assemblages like French Guiana Species Act of 1973 as to Marine On February 23, 2011, the Sierra Club and Suriname, nesting records prior to Turtles. The Service has jurisdiction sent a Notice of Intent To Sue over the the 1950s are lacking (Rivalan et al. over sea turtles and their associated alleged failure of the Service and NMFS 2006, p. 2). By the 1960s, several nesting habitats when they are on land, while to make both the 90-day and 12-month sites were being discovered in the NMFS has jurisdiction over sea turtles findings. On March 18, 2011, we sent a western Atlantic, in Pacific Mexico, and and their associated habitats in the letter to the Sierra Club acknowledging in Malaysia. Soon after, other marine environment. Thus, if Federal receipt of the February 23, 2011, Notice populations in Pacific Costa Rica and agencies are involved in activities that of Intent To Sue. On May 27, 2011, the Mexico were identified. Today, nesting may affect sea turtles involved in Sierra Club filed a complaint over the beaches are known in all major ocean nesting behavior, or may affect their alleged failure of the Service to respond basins with catastrophic declines nests or their nesting habitats, those to the petition dated February 22, 2010, observed in the eastern Pacific (Spotila Federal agencies are required to consult to revise critical habitat. This finding et al. 2000, entire) and Malaysia (Chan with the Service under section 7 of the addresses the portion of the petition and Liew 1996, pp. 196–197). Act to ensure that their activities are not under the Service’s jurisdiction. In the eastern Pacific, important likely to jeopardize the continued This 90-day finding and 12-month nesting beaches occur in Mexico and existence of the sea turtles. If a Federal determination is responsive only to Costa Rica, with scattered nesting along action may affect sea turtles while they aspects of the petition that fall under the the Central American coast (Ma´rquez M. are in the marine environment, the Service’s jurisdiction, the terrestrial 1990, pp. 54–55). Nesting is very rare in Federal agency involved must engage in portion of the area as identified in the the Gulf of California, Mexico (Seminoff a section 7 consultation with NMFS, to petition as ‘‘The coastline of the and Dutton 2007, p. 139). In the western ensure that the action is not likely to Northeast Ecological Corridor of Puerto Pacific, the main nesting beaches occur jeopardize the continued existence of Rico, running from Luquillo, Puerto in the Solomon Islands, Papua, the sea turtles. Similarly, if critical Rico, to Fajardo, Puerto Rico, including Indonesia, and Papua New Guinea habitat has been designated, and Federal the beaches known as San Miguel, (Limpus 2002, p. 44; Dutton et al. 2007, actions may affect such habitat, a Paulinas, and Convento, and extending pp. 49–50). Minor nesting occurs in section 7 consultation under the Act at least .025 mile (132 feet) inland from Vanuatu (Petro et al. 2007, entire), Fiji would be required to ensure that the the mean high tide line.’’ (Rupeni et al. 2002, p. 122), and Federal action is not likely to destroy or southeastern Australia (Dobbs 2002, p. adversely modify the critical habitat. If Species Information 81; Hamann et al. 2006, p. 20); and it is very rare in the North Pacific (Eckert the critical habitat has been designated Worldwide Distribution on land, the consultation would be with 1993, p. 73). In the Indian Ocean, major the Service; if the critical habitat has Leatherback sea turtles have the nesting beaches occur in South Africa, been designated in the marine widest distribution of sea turtles, Sri Lanka, and Andaman and Nicobar environment, the consultation would be nesting on beaches in the tropics and islands, with smaller populations in with NMFS. subtropics and foraging into higher- Mozambique, Java, and Malaysia On April 1, 2010, the Service sent a latitude subpolar waters. In the Pacific, (Hamann et al. 2006, p. 8). letter to the petitioner acknowledging they extend from the waters of British In the eastern Atlantic, a globally receipt of the petition. On April 28, Columbia (McAlpine et al. 2004, entire) significant nesting population is 2010, the Service received an e-mail and the Gulf of Alaska (Hodge and Wing concentrated in Gabon, Africa, with from the Sierra Club transmitting a letter 2000, entire) to the waters of Chile and widely dispersed but fairly regular from 36 nonprofit organizations and South Island (New Zealand), and nesting between Mauritania in the north conservation interests outlining the nesting occurs in both the eastern and and Angola in the south (Fretey et al. importance of the NEC of Puerto Rico western Pacific (Ma´rquez M. 1990, pp. 2007, entire). Important nesting areas in and recommending that it be designated 54–55; Gill 1997, entire; Brito M. 1998, the western Atlantic Ocean occur in as critical habitat for the endangered entire). They also occur throughout the Florida (USA); St. Croix, VI; Puerto leatherback sea turtle. On June 2, 2010, Indian Ocean (Hamann et al. 2006, Rico; Costa Rica; Panama´; Colombia; the Sierra Club sent a Notice of Intent entire). In the Atlantic, they are found Trinidad and Tobago; Guyana; To Sue over the alleged failure of the as far north as the waters of the North Suriname; French Guiana; and southern Service and NMFS to make a 90-day Sea, Barents Sea, Newfoundland, and Brazil (Ma´rquez M. 1990, pp. 54–55; finding. Labrador (Threlfall 1978, p. 287; Goff Spotila et al. 1996, pp. 212–213; On July 16, 2010, NMFS published in and Lien 1988, entire; Ma´rquez M. 1990, Bra¨utigam and Eckert 2006, p. 8). Other the Federal Register its 90-day finding pp. 54–55; James et al. 2005, entire) and minor nesting beaches are scattered on the portion of the petition that falls as far south as Argentina and the Cape throughout the Caribbean, Brazil, and

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00051 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47136 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

Venezuela (Mast 2005–2006, pp. 18–19; Northeast Ecological Corridor of Puerto as conservation lands in Brevard Herna´ndez et al. 2007, p. 81). Rico. The Puerto Rican beaches through Broward Counties represent For additional information on the cumulatively hosted a minimum of 469– approximately 43 percent of all biology, status, and habitat needs of the 882 nests each year between 2000 and oceanfront beaches in these counties. leatherback sea turtle, refer to the 2005.’’ The petition cites a Puerto Rico The Florida Statewide Nesting Beach Leatherback Sea Turtle (Dermochelys Department of Natural and Survey (SNBS) program documented an coriacea) 5-Year Review (NMFS and Environmental Resources (PRDNER) increase in leatherback sea turtle nesting Service 2007, entire); the Recovery Plan management plan that describes the numbers from 98 nests in 1989 to for Leatherback Turtles (Dermochelys Corridor’s beaches as ’’ ‘one of the most between 453 and 1,747 nests per season coriacea) in the U.S. Caribbean, important leatherback nesting areas in in the 2000s, with the highest number Atlantic, and Gulf of Mexico (NMFS and Puerto Rico and in the jurisdiction of of nests recorded in 2009 (Florida Fish Service 1992, entire); and the Recovery the United States,’ noting that from 1993 and Wildlife Conservation Commission Plan for U.S. Pacific Populations of the to 2007, 3,188 nests have been recorded, SNBS data). Although the SNBS Leatherback Turtle (Dermochelys for an average of 213 nests annually.’’ program provides information on coriacea) (NMFS and Service 1998, The petition asserts that revision of distribution and total abundance of sea entire), available on the Internet at leatherback sea turtle critical habitat to turtle nesting statewide, it cannot be http://www.regulations.gov. include the beaches of the NEC of used to assess trends because of variable Puerto Rico is necessary to protect survey effort. Therefore, leatherback Evaluation of Information for the 90- leatherback sea turtles. The petition nesting trends are best assessed using Day Finding states that the NEC, including its coastal standardized nest counts made at Index In making this finding, we relied on waters, is ‘‘a centrally important space Nesting Beach Survey (INBS) sites information provided by the petitioners, for ‘individual and population growth,’ surveyed with constant effort over time sources cited by the petitioners, and because it is also a site for ‘breeding, (1989–2010). Under the INBS program, information readily available in the reproduction, [and] rearing of approximately 30 percent of Florida’s Service’s files. We evaluated the offspring.’ ’’ It asserts that ‘‘[a]s two SNBS beach length is surveyed. The information in accordance with 50 CFR decades of data demonstrate, it is a INBS nest counts represent 24.14(c). Our process for making this 90- ‘nesting ground’ or ‘reproduction [site]’ approximately 34 percent of known day finding under section 4(b)(3)(D) of which includes the sandy beaches and leatherback nesting in Florida. An the Act and 50 CFR 424.14(c) of our open access to the ocean that constitute analysis of the INBS data has shown an regulations is limited to a determination the ‘soil type’ and ‘physical constituent exponential increase in leatherback sea of whether the information in the elements’ that leatherbacks need to turtle nesting in Florida since 1989. petition meets the ‘‘substantial scientific survive.’’ From 1989 through 2010, the annual information’’ threshold. In making a The Service assessed information number of leatherback sea turtle nests at finding, we consider whether the provided by the petitioner and available the core set of index beaches ranged petition provides the following in in our files. The Service agrees with the from 27 to 615 (Florida Fish and accordance with 50 CFR 424.14(c)(2): petitioner that Sandy Point in the U.S. Wildlife Conservation Commission (i) Information indicating that areas Virgin Islands, Brava and Resaca INBS data). Using the numbers of nests petitioned to be added to critical habitat Beaches on Puerto Rico’s Island of recorded from 1979 through 2009, contain physical or biological features Culebra and the Northeast Ecological Stewart et al. (in press) estimated a essential to, and that may require Corridor on the main island of Puerto population growth of approximately special management to provide for, the Rico are important nesting areas for 10.2 percent per year. conservation of the species involved; or leatherback sea turtles in the United In the U.S. Virgin Islands, leatherback (ii) Information indicating that areas States. However, important leatherback sea turtle nesting has been reported on currently designated as critical habitat sea turtle nesting habitat also occurs in the islands of St. Croix, St. Thomas, and do not contain resources essential to, or Florida, as well as elsewhere in Puerto St. John. However, the most significant do not require special management to Rico on the Island of Vieques and in the leatherback sea turtle nesting activity provide for, the conservation of the Maunabo area on the main island. A occurs on Sandy Point, St. Croix (NMFS species involved. summary of key leatherback nesting and Service 1992, p. 2). Leatherback sea The Service’s evaluation of this beaches in the United States is provided turtle nesting on Sandy Point was first information is presented below. We below. brought to the attention of biologists in have organized the petition’s claims into In Florida, the majority of leatherback the mid-1970s (Boulon et al. 1996, p. four categories relative to 50 CFR sea turtle nesting occurs along the 141), and flipper tagging of nesting 424.14(c)(2)(i) as described above:. Southeast Atlantic coastline in Brevard turtles began in 1977 (Dutton et al. 2005, (1) Petition claims the leatherback sea through Broward Counties. These p. 186). Since 1982, the Sandy Point turtle nesting sites in Puerto Rico counties encompass approximately 206 beach has been consistently monitored represent the second most significant miles (332 km) of sandy coastline each nesting season. In 1984, the Sandy nesting activity in the United States, fronting the Atlantic Ocean (Clark 1993, Point National Wildlife Refuge was and that the beaches of the Northeast p. 17). Within these counties, established and encompassed the Sandy Ecological Corridor are the most approximately 89 miles (143 km) have Point beach. Between 1982 and 2010, important leatherback sea turtle nesting been identified as conservation lands the number of nests recorded on Sandy sites on the main island of Puerto Rico. (NMFS and Service 2008, pp. V–36–V– Point ranged from a low of 82 in 1986 The petition claims ‘‘[t]he United 39). Conservation lands are defined as to a high of 1,008 in 2001 (Garner and States contains at least three significant public ownership (Federal, State, or Garner 2010, pp. 18–20). Dutton et al. leatherback nesting areas: Sandy Point local government) and privately owned (2005, p. 189) estimated a population on St. Croix in the U.S. Virgin Islands, lands (e.g., nonprofit conservation growth of approximately 13 percent per which hosted 1,008 nests in 2001, Brava foundations) that are generally managed year from 1994 through 2001 for this and Resaca Beaches on Puerto Rico’s in a way to benefit sea turtle nesting population. Using the number of island of Culebra, and the beaches conservation (NMFS and Service 2008, observed females at Sandy Point from around Fajardo and Luquillo in the p. V–33). Therefore, beaches identified 1986 to 2004, the Turtle Expert Working

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00052 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47137

Group (2007, pp. 48–49) estimated a Puerto Rico between 1984 and 2005, the (2) Petition claims that leatherback population growth of approximately 10 Turtle Expert Working Group (2007, p. sea turtles in the Atlantic Ocean have percent per year. 47) estimated a population growth of declined and could experience a similar In Puerto Rico, the main nesting areas approximately 10 percent per year. decline as those in the Pacific Ocean if are at Fajardo (NEC) and Maunabo on Fajardo (NEC) and Maunabo are the their habitat is not protected. the main island, and on the islands of primary leatherback sea turtle nesting The petition cites a number of studies Culebra and Vieques. Between 1993 and areas on the main island of Puerto Rico. about the population decline of 2010, the number of nests recorded in The NEC of Puerto Rico, running from leatherback sea turtles in the Pacific the NEC in the Fajardo area ranged from Luquillo to Fajardo, PR, includes Ocean, and concludes that leatherback a low of 51 in 1995 to a high of 456 in approximately 3,200 ‘‘cuerdas’’ (3,108 sea turtles in the Atlantic Ocean could 2009 (C. Diez, PRDNER, unpublished acres or 1,259 hectares) within the experience a similar decline if their data). In the Maunabo area, the number properties referred to as San Miguel I habitat is not protected. The petition of nests recorded between 2001 and and II, Las Paulinas, El Convento Norte, also states that conditions in the 2010 ranged from a low of 53 in 2002 and Seven Seas. Three of these Atlantic and Caribbean are relatively to a high of 260 in 2009 (C. Diez, properties (Las Paulinas, El Convento more stable than those in the Pacific, PRDNER, unpublished data). On the Norte, and Seven Seas) are owned by but that some declines in nesting have island of Culebra, the number of nests the Puerto Rico Industrial Development been documented or are believed likely recorded between 1993 and 2010 ranged Company (PRIDCO) and the National to have occurred based on estimates on from a low of 41 in 1996 to a high of Parks Company (NPC), while the nesting declines for other sea turtle 395 in 1997 (C. Diez, PRDNER, remaining properties are privately species. However, the petition did not unpublished data). Approximately two- owned. cite or provide information about the thirds of Vieques Island was occupied Beaches within the NEC comprise status of leatherback sea turtle by the U.S. Navy beginning in the early approximately 5.43 miles (8.74 km) of populations in the Atlantic Ocean. In 2007, the Turtle Expert Working 1940s and was used by the U.S. sandy beaches that support leatherback Group published An Assessment of the Department of Defense for military nesting. Maunabo is located on the Leatherback Turtle Population in the practices until 2002, when most of the southeastern coast and has Atlantic Ocean and estimated a U.S. Navy lands on Vieques Island were approximately 3.93 miles (6.32 km) of population size of 34,000–94,000 adult transferred to the Department of the sandy beaches suitable for leatherback leatherback sea turtles in the North Interior to form part of the Service’s sea turtle nesting. Although beaches in Atlantic (Turtle Expert Working Group National Wildlife Refuge System. Maunabo are public domain, uplands Monitoring of sea turtle nesting 2007, p. 59). An increasing or stable adjacent to these beaches are privately population trend was seen in all regions beaches on Vieques Island has been owned with the potential for future challenging due to access restrictions of the Atlantic except West Africa for development. On the island of Culebra, which no long-term data were available imposed during military operations and the majority of leatherback sea turtle the presence of unexploded ordnance (Turtle Expert Working Group 2007, pp. nesting occurs on Brava and Resaca 48–51). The nesting trend for the North throughout most of the areas formerly beaches. Brava Beach is approximately Caribbean population, which includes used for military training by the U.S. 0.78 mile (1.25 km) in length, while Puerto Rico, was characterized as Navy. On beaches managed by the Resaca Beach is 0.62 mile (1.00 km) in increasing. Furthermore, a near record Commonwealth of Puerto Rico on the length. All of the land surrounding number of leatherback nests (1,330 island of Vieques, PRDNER recorded Resaca Beach and part of the land nests) was laid on Florida index beaches annually 14–61 leatherback nests surrounding Brava Beach is owned by in 2010. Leatherback nest counts have between 1991 and 2000; 145 nests in the Service as part of the Culebra been increasing exponentially in Florida 2002; 24 in 2003; and 37 in 2005 (C. National Wildlife Refuge. Therefore, (http://myfwc.com/research/wildlife/ Diez, PRDNER, unpublished data). The Resaca Beach is relatively protected sea-turtles/nesting/beach-survey-totals- number of leatherback sea turtle nests from development. 1989-2010/). recorded on Vieques Island beaches Although at present there is no The petition does not provide managed by the Service were as follows: development on the private land near information to support the claim that • 32 in 2001; Brava Beach, there is the potential for leatherback sea turtle populations have • 163 in 2002; future development. On the island of substantially declined in the Atlantic • 13 in 2003; Vieques, leatherback sea turtles nest on since the 1978 critical habitat • 28 in 2004; both the southern and northern beaches designation in St. Croix, VI. Thus, the • 88 in 2005; on the eastern portion of the island Service does not believe the petition or • 92 in 2006; within the Vieques National Wildlife information in our files presents • 93 in 2007; Refuge. The refuge encompasses substantial information to support this • 52 in 2008; approximately 18.09 miles (29.11 km) of claim. The Service also does not believe • 155 in 2009; and sandy beaches that may support the petition or information available in • 132 in 2010. leatherback sea turtle nesting. These our files presents substantial Nesting data for 2006 and 2010 include beaches are protected from information to support the claim that nests found on beaches off Service lands development. the leatherback sea turtles in the (8 and 6 nests, respectively). Since Although other important leatherback Atlantic Ocean are likely to experience several beaches on Vieques’ eastern sea turtle nesting beaches occur in the declines similar to those in the Pacific portion are not regularly monitored for United States besides those identified in if critical habitat is not revised to sea turtle nesting activity due to the petition, the Service believes the include the beaches of the NEC. logistical difficulties and presence of information submitted by the petitioner Therefore, the Service finds that the unexploded ordnance, the average about the importance of the NEC to petition does not present substantial yearly number of sea turtle nests on leatherback sea turtle nesting in the information for this claim. Vieques Island is likely to be greater. United States is substantial for this (3) Petition claims that the evidence Using the numbers of nests recorded in claim. supporting designation of the Northeast

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00053 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47138 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

Ecological Corridor as critical habitat is accompanied by artificial lighting. The On some undeveloped beaches, stronger than the evidence used by the presence of lights on or adjacent to shoreline migration will have limited Service to designate critical habitat for nesting beaches alters the behavior of effects on the suitability of nesting Sandy Point, St. Croix, VI. nesting adults and is often fatal to habitat. Bruun (1962, pp. 123–126) The petition cites the 1978 critical emerging hatchlings as they are hypothesized that during sea level rise, habitat designation of the nesting attracted to light sources and drawn a typical beach profile will maintain its beaches of Sandy Point, St. Croix, as a away from the water (McFarlane 1963, configuration but will be translated rationale for likewise designating the p. 153; Philibosian 1976, p. 824; Ehrhart landward and upward. However, along beaches of the NEC of Puerto Rico as and Witherington 1987, pp. 66–67; developed coastlines, and especially in critical habitat. The petition indicates Witherington and Bjorndal 1991, pp. areas where erosion control structures that the current level of leatherback sea 146–147; Witherington 1992, pp. 36–38; have been constructed to limit shoreline turtle nesting within the NEC is greater Villanueva-Mayor et al. 2003, entire). movement, rising sea levels are likely to than the level of nesting that was In 1990, a major part of the NEC was cause severe effects on nesting females observed at Sandy Point in 1977, which included as part of the coastal barrier and their eggs (Hawkes et al. 2009, p. was used as justification for its system under the Coastal Barrier 139; Poloczanska et al. 2009, pp. 164, designation as critical habitat. Resources Act (CBRA), as requested by 174). Erosion control structures can At the time of the 1978 critical habitat the Puerto Rico Planning Board (PRPB). result in the permanent loss of dry designation, Sandy Point in the U.S. The CBRA encourages the conservation nesting beach or deter nesting females Virgin Islands was the only known of hurricane-prone, biologically rich from reaching suitable nesting sites beach under U.S. jurisdiction used coastal barriers by restricting Federal (National Research Council 1990, p. 77). extensively for nesting by leatherback expenditures that encourage Nesting females may deposit eggs sea turtles. Its designation as critical development, such as federally seaward of the erosion control habitat was ‘‘taken to insure the subsidized flood insurance (16 U.S.C. structures potentially subjecting them to integrity of the only major nesting beach 3501–3510). In 1996, the PRPB rezoned repeated tidal inundation. used by leatherbacks in the United the lands within the NEC as a tourist- For additional information on threats States or its territories’’ (43 FR 43688; residential development zone, allowing affecting leatherback sea turtle nesting September 26, 1978). Since that time, as for recreational and tourism beaches, refer to the Leatherback Sea described in the Species Information development of the area. Although the Turtle (Dermochelys coriacea) 5-Year section above, additional beaches have NEC had been designated as a Natural Review (NMFS and Service 2007, pp. been identified in the United States as Reserve by the former Puerto Rico 32–34); the Recovery Plan for important for leatherback sea turtle Governor in 2007, the new Leatherback Turtles (Dermochelys nesting, including beaches in Puerto administration repealed the designation coriacea) in the U.S. Caribbean, Rico and Florida. Therefore, the in October 2009. Thus, lands within the Atlantic, and Gulf of Mexico (NMFS and rationale used for the Sandy Point NEC continue under private and Service 1992, pp. 9–14); and the critical habitat designation is not Commonwealth (PRIDCO, NPC) Recovery Plan for U.S. Pacific applicable for the NEC. Therefore, the ownership, and are subject to potential Populations of the Leatherback Turtle Service finds that the petition does not future development. The NEC remains a (Dermochelys coriacea) (NMFS and present substantial information for this unit within the CBRA system. Service 1998, pp. 21–23), available on claim. Between 2007 and 2008, the Service the Internet at http:// (4) Petition claims that threats on the awarded more than $4,000,000 for the www.regulations.gov. nesting beach are substantial and that acquisition of over 400 acres in the San The Service agrees with the petition global climate change is exacerbating Miguel area, and continues to support that threats to leatherback sea turtle the situation. acquisition in the area to ensure long- nesting habitat are substantial. We find The petition claims threats to term conservation of these lands, the information submitted by the leatherback sea turtle nesting beaches, particularly for leatherback sea turtle petitioner related to this claim to be exacerbated by global climate change, nesting. However, development substantial information for this claim. further justify the need for designation pressures exist, and there are no lighting of the NEC as critical habitat. The codes or regulations in Puerto Rico. 90-Day Finding Service agrees there are substantial Therefore, development could threaten Based on the above information and threats affecting leatherback sea turtle leatherback nesting within the NEC. information readily available in our nesting habitat in the U.S. Atlantic. As indicated in the petition, another files, and pursuant to criteria specified Leatherback nesting habitat is affected factor that may affect leatherback sea in 50 CFR 424.14(b), we find the by development, including the turtle nesting habitat is climate change. petition presents substantial scientific construction of buildings, beach Impacts from climate change, especially information indicating that revision of armoring, renourishment, and sand due to global warming, are likely to the critical habitat designation for the mining (Crain et al. 1995, entire; become more apparent in future years leatherback sea turtle may be warranted. Lutcavage et al. 1997, pp. 388–391; (Intergovernmental Panel on Climate Witherington 1999, pp. 180–181). These Change 2007, pp. 12–17). The global 12-Month Determination factors may directly, through loss of mean temperature has risen 0.76 degrees Pursuant to the provisions of the Act beach habitat, or indirectly, through Celsius over the last 150 years, and the regarding revision of critical habitat and changing thermal profiles and linear trend over the last 50 years is petitions for revision, we find that increasing erosion, serve to decrease the nearly twice that for the last 100 years revisions to critical habitat for the amount of nesting area available to (Intergovernmental Panel on Climate leatherback sea turtle under the Act nesting females, and may evoke a Change 2007, p. 5). One of the most should be made. As described in the change in the natural behaviors of certain consequences of climate change How the Service Intends to Proceed adults and hatchlings (Ackerman 1997, is sea level rise (Titus and Narayanan section below, we intend to fully assess pp. 102–103; Mosier 1998, pp. 42–47; 1995, pp. 123–132), which will result in critical habitat during the future Witherington et al. 2003, pp. 7–10). In increased erosion rates along nesting planned status review for the addition, coastal development is usually beaches. leatherback sea turtle.

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00054 Fmt 4702 Sfmt 4702 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47139

The Service intends that any revisions segment policy. After completing the completed (Conant et al., 2009) and to critical habitat for the leatherback sea reviews, the Service and NMFS made a rulemaking is in progress (75 FR 12598; turtle be as accurate as possible. To decision to conduct the recommended March 16, 2010); status reviews for the ensure that the status review is sea turtle status reviews in the following other species have not been initiated comprehensive, the Service will request order: (1) Loggerhead sea turtle, (2) because they have been precluded by scientific and commercial data and Green sea turtle, (3) Olive ridley sea higher priority actions to amend the other information regarding the turtle, (4) Leatherback sea turtle, and (5) Lists of Endangered and Threatened leatherback sea turtle from all Hawksbill sea turtle. Wildlife and Plants. It is our intention concerned governmental agencies, the The loggerhead status review was to assess leatherback sea turtle critical scientific community, industry, or any selected to be conducted first because habitat as part of the future planned other interested party concerning this the species is listed as threatened status review for the leatherback sea finding when we initiate the review. worldwide, and there were substantial turtle. Until the Service is able to revise the concerns about the status of some References Cited critical habitat designation for the nesting populations. The green and leatherback sea turtle, the currently olive ridley turtles were selected to be A complete list of references cited is designated critical habitat, as well as the second and third status reviews available on the Internet at http:// areas that support leatherback sea conducted because they have multiple www.regulations.gov and upon request turtles but are outside of the current vertebrate populations listed under the from the North Florida Ecological critical habitat designation, will Act, some listed as threatened and some Services Office, U.S. Fish and Wildlife continue to be subject to conservation as endangered, and an assessment is Service (see FOR FURTHER INFORMATION actions implemented under section needed to determine if these CONTACT). 7(a)(1) of the Act. Federal agency populations qualify as individual actions are subject to the regulatory distinct population segments (DPSs) or Author protections afforded by section 7(a)(2), are part of larger DPSs. The leatherback The primary authors of this notice are which requires Federal agencies, and hawksbill sea turtles were selected the staff members of the U.S. Fish and including the Service, to ensure that as the last two status reviews to be Wildlife Service, North Florida actions they fund, authorize, or carry conducted because both species are Ecological Services Office (see FOR out are not likely to jeopardize the listed as endangered worldwide and FURTHER INFORMATION CONTACT) and the continued existence of any listed receive the fullest protection under the Caribbean Ecological Services Field species or result in the destruction or Act; therefore, the need for status Office (P.O. Box 491, Boquero´n, PR adverse modification of critical habitat. reviews for these two species was 00622; telephone 787–851–7297). deemed not to be as urgent as for the How the Service Intends To Proceed other species. Authority: The authority for this action is the Endangered Species Act of 1973, as One of the recommendations Once a status review is completed for amended (16 U.S.C. 1531 et seq.). contained in the 5-year reviews for each species, a rulemaking process listed sea turtle species, completed in would be conducted, if appropriate, to Dated: July 26, 2011. 2007, was that the Service and NMFS revise the species’ status, list a DPS of Eileen Sobeck, conduct an analysis and review for each the species, or designate or revise Acting Assistant Secretary for Fish and listed sea turtle (except the Kemp’s critical habitat if prudent and Wildlife and Parks. ridley sea turtle) to determine the determinable. The status review for the [FR Doc. 2011–19676 Filed 8–3–11; 8:45 am] application of the distinct population loggerhead sea turtle has been BILLING CODE 4310–55–P

VerDate Mar<15>2010 15:20 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00055 Fmt 4702 Sfmt 9990 E:\FR\FM\04AUP1.SGM 04AUP1 rmajette on DSK89S0YB1PROD with PROPOSALS 47140

Notices Federal Register Vol. 76, No. 150

Thursday, August 4, 2011

This section of the FEDERAL REGISTER General Background require each National Forest to establish contains documents other than rules or Domestic livestock grazing occurred and adhere to a schedule for completing proposed rules that are applicable to the NEPA analysis and updating Allotment public. Notices of hearings and investigations, in the area encompassed by these allotments since the 1850s. The Management Plans for all rangeland committee meetings, agency decisions and allotments on National Forest System rulings, delegations of authority, filing of livestock industry in this area peaked lands. petitions and applications and agency around the turn of the century, during • statements of organization and functions are the same time period as the creation of Congressional intent allows grazing examples of documents appearing in this the Forest Reserves (later to become the on suitable lands where it is consistent section. National Forests). Regulation of with other multiple use goals and livestock grazing began with the objectives as authorized through several establishment of the Stanislaus National Congressional Acts (Organic DEPARTMENT OF AGRICULTURE Forest and more seriously with the Administration Act of 1897, Multiple Use Sustained Yield Act of 1960, Forest Service passage of the Taylor Grazing Act of 1934. The requirement that ranchers Wilderness Act of 1964, Forest and obtain grazing permits to graze National Rangeland Renewable Resources Stanislaus National Forest, CA; Notice Planning Act of 1974, Federal Land of Intent To Prepare an Environmental Forest land was intended to prevent long-term resource damage. Permitted Policy and Management Act of 1976, Impact Statement for BEH Rangeland National Forest Management Act of Allotments livestock numbers on these allotments and across the National Forests in 1976, and the Public Rangelands Improvement Act of 1978); AGENCY: Forest Service, USDA. California are at least 50% below that • allowed in the 1950s. Over time, Code of Federal Regulations (CFR) ACTION: Notice of Intent to Prepare an directs the Forest Service to meet Environmental Impact Statement. allotment boundaries changed and portions of the National Forest are no multiple-use objectives, including longer grazed by commercial livestock. managing for livestock grazing on SUMMARY: The Stanislaus National forage-producing National Forest Forest proposes to reauthorize livestock Several Congressional Acts passed in the 1960s and 1970s, mainly the System lands (36 CFR 222.2 (c)); grazing on the Bell Meadow (B), Eagle • It is Forest Service policy to make Meadow (E) and Herring Creek (H) National Environmental Policy Act of 1969 (NEPA), required the Forest forage available to qualified livestock allotments on the Summit Ranger operators from lands suitable for grazing District. The area affected by this Service to conduct thorough analysis in planning and decision making for consistent with land management plans proposal includes approximately 57,250 (Forest Service Manual (FSM) 2203.1); acres in the Sierra Nevada, located in activities that affect the environment. The Rescissions Act of 1995 (Pub. L. and, Tuolumne County, California. The • 104–19, Sec 504(a)) requires the Forest It is Forest Service policy to purpose of this proposal is to ensure continue contributions to the economic compliance with all applicable Public Service to establish a schedule for completion of NEPA analysis on grazing and social well being of people by Laws and standards and guidelines providing opportunities for economic described in the Forest Plan. allotments in order to update Allotment Management Plans (AMPs) and diversity and by promoting stability for DATES: Comments on the proposed continue to authorize livestock grazing. communities that depend on range action should be submitted within 45 The Code of Federal Regulations (36 resources for their livelihood (FSM days of the date of publication of this CFR 222), the Forest Service Manual 2202.1) Notice of Intent. Completion of the draft (FSM 2200) and the Forest Service This action is needed because: • environmental impact statement is Handbook (FSH 2209) contain direction There is public demand from expected in January 2012 and the final and policy for Range Management qualified livestock operators for environmental impact statement is (livestock use on National Forest lands). continued livestock grazing on these expected in August 2012. The Bell Meadow, Eagle Meadow and allotments. Livestock grazing on Forest ADDRESSES: Send written comments to: Herring Creek AMPs were last updated Service land is an important source of Stanislaus National Forest, Attn: BEH in 1989, 1990 and 1980, respectively. meat and fiber production, encourages Range; 19777 Greenley Road; Sonora, The Forest Plan, as amended, now the retention of private lands (ranches) CA 95370. Electronic comments, in includes emphasis on specific resources as open space, contributes to the acceptable plain text (.txt), portable and that along with changes to resources economic stability of rural populations, document format (.pdf), rich text (.rtf), on the ground results in a need to and provides Forest visitors with or Word (.doc) formats, may be update the AMPs and issue revised opportunities to experience a traditional submitted to comments- Term Grazing Permits. and culturally important use of public [email protected] lands. Purpose and Need for Action • with Subject: BEH Range. Recent assessments indicate that The purpose of this initiative is to specific locations within the project area FOR FURTHER INFORMATION CONTACT: reauthorize livestock grazing in the may not be meeting or moving toward Crispin Holland, Stanislaus National project area and to ensure compliance desired conditions in a manner that is Forest, 19777 Greenley Road; Sonora, with the following regulations and timely and consistent with Forest Plan CA 95370; phone: (209) 532–3671 ext. agency policy: objectives, standards and guidelines. 274; e-mail: [email protected]. • Public Law 104–19 Section 504 of Gaps between existing resource SUPPLEMENTARY INFORMATION: the 1995 Rescissions Act, as amended, conditions and desired conditions

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47141

indicate a need to change grazing reauthorize grazing in the Bell Meadow, environmental review process. First, management by updating AMPs. Eagle Meadow, and Herring Creek reviewers of draft environmental impact • There is a need to design and allotments. statements must structure their implement an adaptive management participation in the environmental Scoping Process system that will continue to move review of the proposal so that it is resource conditions toward desired Public participation is important at meaningful and alerts an agency to the conditions in a manner that is timely numerous points during the analysis. reviewer’s position and contentions. and consistent with Forest Plan goals The Forest Service seeks information, Vermont Yankee Nuclear Power Corp. v. and objectives. comments, and assistance from the NRDC, 435 U.S. 519, 553 (1978). Also, federal, state, and local agencies and Proposed Action environmental objections that could be individuals and organizations that may raised at the draft environmental impact In response to the purpose and need, be interested in or affected by the statement stage but that are not raised the Forest Service proposes to continue proposed action. until after completion of the final to authorize livestock grazing in the Bell Comments on the proposed action environmental impact statement may be Meadow, Eagle Meadow, and Herring should be submitted within 45 days of waived or dismissed by the courts. City Creek allotments, making forage the date of publication of this Notice of of Angoon v. Hodel, 803 F.2d 1016, available to qualified livestock operators Intent. The draft EIS is expected to be 1022 (9th Cir. 1986) and Wisconsin in a manner that is sustainable and filed with the Environmental Protection Heritages, Inc. v. Harris, 490 F. Supp. consistent with management direction. Agency (EPA) and to be available for 1334, 1338 (E.D. Wis. 1980). Because of The Proposed Action would adjust public review by approximately January these court rulings, it is very important livestock management, update 2012. EPA will publish a notice of that those interested in this proposed Allotment Management Plans and availability of the draft EIS in the action participate by the close of the 45 implement an adaptive management Federal Register. At that time, copies of day comment period so that substantive strategy that would provide for healthy the draft EIS will be distributed to all comments and objections are made ecosystems in a manner that is interested and affected agencies, available to the Forest Service at a time consistent with the Forest Plan. The organizations, and members of the when it can meaningfully consider them Proposed Action would move existing public for their review and comment. It and respond to them in the final conditions toward desired conditions is very important that those interested environmental impact statement. while continuing to allow livestock in the management of the Stanislaus To assist the Forest Service in grazing on these allotments with the National Forest participate at that time. identifying and considering issues and following management actions. The final EIS is scheduled to be concerns on the proposed action, (1) Authorize continued grazing on completed in August 2012. In the final comments on the draft environmental the Bell Meadow, Eagle Meadow, and EIS, the Forest Service is required to impact statement should be as specific Herring Creek allotments in a manner respond to substantive comments as possible. It is also helpful if that provides for healthy ecosystems received during the comment period comments refer to specific pages or and is consistent with Forest Plan that pertain to the environmental chapters of the draft statement. direction. consequences discussed in the draft EIS Comments may also address the Modify allotment boundaries, create and applicable laws, regulations, and adequacy of the draft environmental subunits, and update Allotment policies considered in making the impact statement or the merits of the Management Plans to incorporate decision. Substantive comments are alternatives formulated and discussed in resource conservation measures and defined as ‘‘comments within the scope the statement. Reviewers may wish to adaptive management options. of the proposed action, specific to the refer to the Council on Environmental Implement design criteria in order to proposed action, and have a direct Quality Regulations for implementing better achieve desired conditions relationship to the proposed action, and the procedural provisions of the through systematic monitoring and include supporting reasons for the National Environmental Policy Act at 40 adjustment of grazing activities, while responsible official to consider’’ (36 CFR CFR 1503.3 in addressing these points. allowing for flexibility in management 215.2). Only those who submit Comments received, including the decisions. comments during the comment period names and addresses of those who For more details about the proposed on the draft EIS are eligible to appeal comment, will be considered part of the action, including a scoping package and the subsequent decision under the 36 public record on this proposal and will maps, visit the project Web site at: CFR part 215 regulations. be available for public inspection. http://fs.usda.gov/goto/stanislaus/ Comment Requested Authority: 40 CFR 1501.7 and 1508.22; projects. Forest Service Handbook 1909.15, Section This notice of intent initiates the 21. Responsible Official scoping proces which guides the Susan Skalski, Forest Supervisor, development of the environmental Dated: July 29, 2011. Stanislaus National Forest, Supervisor’s impact statement. A draft EIS will be Susan Skalski, Office, 19777 Greenley Road, Sonora, prepared for comment. The comment Forest Supervisor. CA 95370. period on the draft EIS will be 45 days [FR Doc. 2011–19758 Filed 8–3–11; 8:45 am] from the date the Environmental BILLING CODE 3410–11–P Nature of Decision To Be Made Protection Agency publishes the notice The project area includes all land of availability in the Federal Register. encompassed in the Bell Meadow, Eagle Early Notice of Importance of Public DEPARTMENT OF AGRICULTURE Meadow, and Herring Creek allotments, Participation in Subsequent and areas proposed as additions to these Environmental Review: Forest Service The Forest Service believes, at this allotments. The responsible official will Big Horn County Resource Advisory early stage, it is important to give decide whether to adopt and implement Committee the proposed action, an alternative to reviewers notice of several court rulings the proposed action, or take no action to related to public participation in the AGENCY: Forest Service, USDA.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47142 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

ACTION: Notice of meeting. COMMISSION ON CIVIL RIGHTS Agency: National Oceanic and Atmospheric Administration (NOAA). SUMMARY: The Big Horn County Sunshine Act Notice Title: Defining Target Levels for Ecosystem Targets: A Socio-Ecological Resource Advisory Committee will meet AGENCY: United States Commission on Approach. in Greybull, Wyoming. The committee Civil Rights. is meeting as authorized under the OMB Control Number: None. ACTION: Notice of briefing/meeting. Form Number(s): NA. Secure Rural Schools and Community Type of Request: Regular submission Self-Determination Act (Pub. L. 110– DATE AND TIME: Friday, August 12, 2011; (request for a new, one-time information 343) and in compliance with the Federal 9:30 a.m. EDT. collection). Advisory Committee Act. The purpose PLACE: 624 Ninth Street, NW., Room Number of Respondents: 1,000. is to hold the fifth meeting and to vote 540, Washington, DC 20425. Average Hours per Response: 15 on project proposals. minutes. Briefing Agenda Burden Hours: 250. DATES: The meeting will be held on Needs and Uses: This notice is for the September 8, 2011 and will begin at This briefing is open to the public. Topic: The Civil Rights Implications request of a new information collection. 3 p.m. of Eminent Domain Abuse. The creation of the Puget Sound ADDRESSES: The meeting will be held at I. Introductory Remarks by Chairman. Partnership (PSP) allowed for a group of the Big Horn County Weed and Pest II. Speakers’ Presentations. private and public entities, local Building, 4782 Highway 310, Greybull, III. Questions by Commissioners and citizens, tribes and businesses to begin Wyoming. Written comments about this Staff Director. to collectively work toward restoring the meeting should be sent to Laurie IV. Adjourn Briefing. ecological health of the Puget Sound. With the PSP’s inception, the Puget Walters-Clark, Bighorn National Forest, Meeting Agenda 2013 Eastside 2nd Street, Sheridan, Sound ecosystem has become a national This meeting is open to the public. Wyoming 82801. Comments may also be example of ecosystem-based I. Approval of Agenda. sent via e-mail to comments- management (EBM) implementation. II. Approval of the July 15, 2011 The Partnership Action Agenda [email protected], with the words Big Meeting Minutes. Horn County RAC in the subject line. indentified 80 near-term actions that are III. Program Planning: required for ecosystem recovery. These Facsimilies may be sent to 307–674– • Approval of the 2011 Enforcement actions, however, will require specific 2668. Report. performance measures. All comments, including names and • Approval of Age Discrimination Ecosystems can contain numerous addresses when provided, are placed in Briefing Report. species, and a mean level of species the record and are available for public IV. Management and Operations: placement within a predator/prey chain • inspection and copying. The public may Staff Director’s report. or food web can serve as an ecological inspect comments received at Bighorn V. State Advisory Committee Issues: indicator. Similarly, measures of • Re-chartering the Georgia SAC. National Forest, 2013 Eastside 2nd • relative biodiversity may provide Street, Sheridan, Wyoming 82801. Re-chartering the Oklahoma SAC. indications of ecological health and VI. Adjourn. Visitors are encouraged to call ahead to therefore function as ecological 307–674–2600 to facilitate entry into the CONTACT PERSON FOR FURTHER indicators. Such indicators can facilitate building. INFORMATION: Lenore Ostrowsky, Acting EBMt, when target levels for indicators Chief, Public Affairs Unit (202) 376– exist. Because targets are an expression FOR FURTHER INFORMATION CONTACT: 8591. of the desired state of the ecosystem, Laurie Walters-Clark, RAC Coordinator, Hearing-impaired persons who will establishing targets must include both USDA, Bighorn National Forest, 2013 attend the meeting and require the ecological understanding and societal Eastside 2nd Street, Sheridan, Wyoming services of a sign language interpreter values. This project will develop a 82801; (307) 674–2627. should contact Pamela Dunston at (202) unique approach for identifying Individuals who use 376–8105 or at [email protected] scientifically rigorous ecosystem targets telecommunication devices for the at least seven (7) business days before that explicitly considers social hearing impaired may call 1–307–674– the scheduled date of the meeting. perspectives. For this reason, the 2604 between 8 a.m. and 5 p.m., Dated: August 2, 2011. Northwest Fisheries Science Center Mountain time, Monday through Friday. Kimberly A. Tolhurst, seeks to conduct social norm analyses Senior Attorney-Advisor. which involve a survey of Puget Sound SUPPLEMENTARY INFORMATION: The [FR Doc. 2011–19950 Filed 8–2–11; 4:15 pm] community stakeholders. Stakeholders meeting is open to the public. The will be asked, via telephone survey, a BILLING CODE 6335–01–P following business will be conducted: series of general questions regarding (1) Introductions, (2) Project reviews, (3) their views on the Puget Sound Public Comment; and (4) Project voting environment and the desirability of a DEPARTMENT OF COMMERCE for recommendation. Persons who wish range of potential ecosystem conditions to bring related matters to the attention Submission for OMB Review; for the Puget Sound. of the Committee may file written Comment Request A random digit dial phone survey will statements with the Committee staff be conducted. The survey will be before or after the meeting. The Department of Commerce will voluntary, and contacted individuals Dated: July 29, 2011. submit to the Office of Management and may decline to participate. Respondents Budget (OMB) for clearance the will be asked to respond to statements William T. Bass, following proposal for collection of regarding their perceptions of the health Forest Supervisor. information under the provisions of the of the Puget Sound. Demographic and [FR Doc. 2011–19835 Filed 8–3–11; 8:45 am] Paperwork Reduction Act (44 U.S.C. employment information will be BILLING CODE 3410–11–P Chapter 35). collected so that responses can be

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47143

organized based on a stakeholder Internship Training Program (SABIT) law, no person is required to respond to, typology. This survey is essential which has been assisting U.S. nor shall a person be subject to a because data on social norms, values companies active in or entering penalty for failure to comply with, a and beliefs in the Puget Sound region emerging markets. The program in collection of information subject to the are sparse; yet, they are critical to the Russia will be implemented through the requirements of the PRA unless that development of sound ecosystem health Federal Resource Center, an agency of collection of information displays a targets. the Ministry of Economic Development currently valid OMB Control Number. Affected Public: Individuals or of the Russian Federation. The training Public reporting burden for this households. program is scheduled to take place in collection of information is estimated to Frequency: One time. the Sverdlovsk region. be 3 hours per response, including the Respondent’s Obligation: Voluntary. DATES: The program will take place in time for reviewing instructions, OMB Desk Officer: late September 2011. The application is searching existing data sources, [email protected]. due by Friday, August 12, 2011. gathering and maintaining the data Copies of the above information ADDRESSES: Interested U.S. applicants needed, and completing and reviewing collection proposal can be obtained by should contact the U.S. Department of the collection of information. Persons calling or writing Diana Hynek, Commerce’s SABIT Program for an wishing to comment on the burden Departmental Paperwork Clearance application or download an application estimate or any aspect of this collection Officer, (202) 482–0266, Department of from SABIT’s Web site at of information, or offer suggestions for Commerce, Room 6616, 14th and www.trade.gov/sabit. reducing this burden, should send their Constitution Avenue, NW., Washington, FOR FURTHER INFORMATION CONTACT: COMMENTS to the ITA Reports DC 20230 (or via the Internet at Tracy M. Rollins, Director, SABIT Clearance Officer, International Trade [email protected]). Program, U.S. Department of Commerce, Administration, U.S., 1401 Constitution Written comments and (202) 482–0073. This is not a toll-free Avenue, NW., Washington, DC 20230. recommendations for the proposed number. Statutory Authority: This program is information collection should be sent funded under Section 632(a) of the Foreign SUPPLEMENTARY INFORMATION: Since FY within 30 days of publication of this Assistance Act of 1961, as amended (the 1992, SABIT has provided management notice to ‘‘FAA’’), and the Department of State, training in the United States to over [email protected]. Foreign Operations, and Related Programs 5,000 business executives from various Appropriations Act, 2010 (Pub. L. 111–117) Dated: July 29, 2011. regions of the world. To date, over 4,000 to carry out the provisions of the FAA and Gwellnar Banks, U.S. companies have hosted executives the FREEDOM Support Act, as amended. Management Analyst, Office of the Chief through the SABIT Program in sectors Dated July 29, 2011. Information Officer. including agribusiness; defense Tracy M. Rollins, [FR Doc. 2011–19750 Filed 8–3–11; 8:45 am] conversion; product standards and Director, SABIT Program, U.S. Department BILLING CODE 3510–22–P quality control; energy; financial of Commerce. services; telecommunications; [FR Doc. 2011–19783 Filed 8–3–11; 8:45 am] transportation; housing; environmental BILLING CODE 3510–HE–P DEPARTMENT OF COMMERCE equipment and services; medical equipment and supplies; Docket Number 110726425–1426–01 pharmaceuticals; and health care DEPARTMENT OF COMMERCE RIN 0625–XA13 management. Trainees for this program in Russia Foreign-Trade Zones Board Opportunity for U.S. Businessmen and will be selected by the SABIT Program [Order No. 1776] Women To Train in the Russian based on their fit with Russian host Federation organizations, ability to utilize the Approval for Manufacturing Authority, AGENCY: International Trade knowledge gained during the program to Foreign-Trade Zone 153; Abbott Administration (ITA), U.S. Department further U.S.-Russian business Cardiovascular Systems, Inc., of Commerce (DOC). development, and overall quality of the (Cardiovascular Devices), Riverside application submitted. Participants will County, CA ACTION: Notice of training opportunity. be selected by SABIT program staff. Participants must be United States Pursuant to its Authority Under the Authority: 22 U.S.C. 2395(b). citizens and employed at the time of the Foreign-Trade Zones Act of June 18, 1934, as SUMMARY: In November 2010, U.S. program. The SABIT program will pay Amended (19 U.S.C. 81a–81u), the Foreign- Secretary of Commerce Gary Locke and for the trainees’ round-trip international Trade Zones Board (the Board) Adopts the Russian Minister of Economic and domestic airfare to the internship Following Order: Development Elvira Nabiullina signed a site in the Russian Federation, housing Whereas, the City of San Diego, Memorandum of Understanding (MOU) while the trainees are in the Russian grantee of Foreign-Trade Zone 153, has outlining plans for the two countries to Federation, and provide per diem and requested manufacturing authority on cooperate on a management training emergency medical insurance. Trainees behalf of Abbott Cardiovascular exchange program that will enable will be responsible for Russian visa Systems, Inc., within Sites 11–13 of FTZ private sector managers from each costs. Trainees will not need to speak 153, located in Riverside County, country to gain practical experience Russian. California, (FTZ Docket 6–2011, January working in the other country. Under the The application (OMB Number 0625– 18, 2011); U.S.-Russia Management Training 0225) is free-of-charge and voluntary. Whereas, notice inviting public Exchange Program, early-career U.S. This collection of information contains comment has been given in the Federal managers will travel to Russia for two Paperwork Reduction Act (PRA) Register (76 FR 4283, 1/25/2011) and weeks to learn about business issues in requirements approved by the Office of the application has been processed Russia. The Program is arranged by Management and Budget (OMB). pursuant to the FTZ Act and the Board’s ITA’s Special American Business Notwithstanding any other provision of regulations; and,

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47144 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Whereas, the Board adopts the Halliburton Energy Services, Inc., entry, and FTZ 47’s existing Site 2 findings and recommendations of the located in Larose, Louisiana (FTZ would be categorized as a magnet site examiner’s report, and finds that the Docket 7–2011, filed 01/18/2011); and existing Site 1 would be reduced by requirements of the FTZ Act and Whereas, notice inviting public 15 acres and categorized as a usage- Board’s regulations are satisfied, and comment has been given in the Federal driven site; that the proposal is in the public Register (76 FR 4284, 01/25/2011) and Whereas, notice inviting public interest; the application has been processed comment was given in the Federal Now, therefore, the Board hereby pursuant to the FTZ Act and the Board’s Register (76 FR 14901, 3/18/2011) and orders: regulations; and, the application has been processed The application for manufacturing Whereas, the Board adopts the pursuant to the FTZ Act and the Board’s authority under zone procedures at sites findings and recommendations of the regulations; and, within FTZ 153, on behalf of Abbott examiner’s report, and finds that the Whereas, the Board adopts the Cardiovascular Systems, Inc., as requirements of the FTZ Act and findings and recommendations of the described in the application and Board’s regulations are satisfied, and examiner’s report, and finds that the Federal Register notice, is approved, that the proposal is in the public requirements of the FTZ Act and subject to the FTZ Act and the Board’s interest; Board’s regulations are satisfied, and regulations, including Section 400.28. Now, therefore, the Board hereby that the proposal is in the public Signed at Washington, DC, this 26th day of grants authority for subzone status for interest; July 2011. activity related to the manufacturing Now, Therefore, the Board hereby Ronald K. Lorentzen, and distribution of ground barite at the orders: Deputy Assistant Secretary for Import facility of Halliburton Energy Services, The application to reorganize FTZ 47 Administration, Alternate Chairman, Foreign- Inc., located in Larose, Louisiana under the alternative site framework is Trade Zones Board. (Subzone 124O), as described in the approved, subject to the FTZ Act and Attest: application and Federal Register notice, the Board’s regulations, including Andrew McGilvray, subject to the FTZ Act and the Board’s Section 400.28, to the Board’s standard regulations, including Section 400.28. Executive Secretary. 2,000-acre activation limit for the overall general-purpose zone project, [FR Doc. 2011–19814 Filed 8–3–11; 8:45 am] Signed at Washington, DC, this 26th day of July 2011. and to a five-year ASF sunset provision BILLING CODE 3510–DS–P Ronald K. Lorentzen, for magnet sites that would terminate Deputy Assistant Secretary for Import authority for Site 2 if not activated by DEPARTMENT OF COMMERCE Administration, Alternate Chairman, Foreign- July 31, 2016, and to a three-year ASF Trade Zones Board. sunset provision for usage-driven sites Foreign-Trade Zones Board Attest: that would terminate authority for Site 1 if no foreign-status merchandise is Andrew McGilvray, [Order No. 1769] admitted for a bona fide customs Executive Secretary. purpose by July 31, 2014. Grant of Authority for Subzone Status [FR Doc. 2011–19709 Filed 8–3–11; 8:45 am] Signed at Washington, DC, this 26th day of Halliburton Energy Services, Inc. BILLING CODE 3510–DS–P (Barite Milling); Larose, LA July 2011. Ronald K. Lorentzen, Pursuant to its authority under the Foreign- DEPARTMENT OF COMMERCE Deputy Assistant Secretary for Import Trade Zones Act of June 18, 1934, as Administration, Alternate Chairman, Foreign- amended (19 U.S.C. 81a–81u), the Foreign- Foreign-Trade Zones Board Trade Zones Board. Trade Zones Board (the Board) adopts the following Order: [Order No. 1774] Attest: Andrew McGilvray, Whereas, the Foreign-Trade Zones Act Reorganization of Foreign-Trade Zone Executive Secretary. provides for ‘‘* * * the establishment 47 Under Alternative Site Framework; [FR Doc. 2011–19706 Filed 8–3–11; 8:45 am] * * * of foreign-trade zones in ports of Boone County, KY entry of the United States, to expedite BILLING CODE 3510–DS–P and encourage foreign commerce, and Pursuant to its authority under the Foreign- for other purposes,’’ and authorizes the Trade Zones Act of June 18, 1934, as DEPARTMENT OF COMMERCE Foreign-Trade Zones Board to grant to amended (19 U.S.C. 81a–81u), the Foreign- Trade Zones Board (the Board) adopts the qualified corporations the privilege of Bureau of Industry and Security establishing foreign-trade zones in or following Order: adjacent to U.S. Customs and Border Whereas, the Board adopted the In the Matter of: Jianwei Ding, 51 Bukit Protection ports of entry; alternative site framework (ASF) (74 FR Batok Crescent, #0828 Unity Centre, Whereas, the Board’s regulations (15 1170, 01/12/09; correction 74 FR 3987, Singapore 658077, and Registration #: CFR part 400) provide for the 01/22/09; 75 FR 71069–71070, 11/22/ 29603–050, FCI La Tuna, Federal establishment of special-purpose 10) as an option for the establishment or Correction Institution, P.O. Box 3000, subzones when existing zone facilities reorganization of general-purpose zones; Anthony, TX 88021, Respondent; Order cannot serve the specific use involved, Whereas, the Greater Cincinnati Relating to Jianwei Ding and when the activity results in a Foreign Trade Zone, Inc., grantee of FTZ significant public benefit and is in the 47, submitted an application to the The Bureau of Industry and Security, public interest; Board (FTZ Docket 21–2011, filed 3/15/ U.S. Department of Commerce (‘‘BIS’’), Whereas, the Port of South Louisiana, 2011) for authority to reorganize under has notified Jianwei Ding (‘‘Ding’’), in grantee of Foreign-Trade Zone 124, has the ASF with a service area of Boone, his individual capacity, of its intention made application to the Board for Kenton and Campbell Counties, to initiate an administrative proceeding authority to establish a special-purpose Kentucky, adjacent to the Cincinnati against him pursuant to Section 766.3 of subzone at the barite milling facility of Customs and Border Protection port of the Export Administration Regulations

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00005 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47145

(the ‘‘Regulations’’),1 and Section 13(c) from what Ding believed to be a U.S. supplier First, Ding shall be assessed a civil of the Export Administration Act of of Toray materials, instructed co-conspirator penalty in the amount of $100,000, 1979, as amended (the ‘‘Act’’),2 through Ping Cheng, a U.S. individual, to inspect the which shall be paid to the U.S. the issuance of a proposed charging merchandise and determine its authenticity. Department of Commerce in two On or about April 17, 2007, Ding sent an letter to Ding that alleges that he email to Cheng requesting that Cheng fly to installments of $50,000. The first committed one violation of the Minnesota from New York to inspect a lot of installment of $50,000 shall be paid Regulations. Specifically, the allegations 104 kilograms of Toray M60 material. On or within 30 days from the date of this are: about June 29, 2007, Ding directed Cheng to Order, and the second installment of travel to Minnesota to inspect a lot of 211 $50,000 shall be paid within six months Charge 1 15 CFR 764.2(d)—Conspiracy kilograms of Toray M40 material. Upon from the date of this Order. to Export Items From the United States receiving reports and pictures of the items Second, that, pursuant to the Debt to China Without the Required Licenses from Cheng, Ding then instructed FirmSpace Collection Act of 1982, as amended (31 to issue purchase orders to the apparent U.S. U.S.C. 3701–3720E (2000)), the civil Beginning at least in or around February supplier and authorized wire transfers for penalty owed under this Order accrues 2007, and continuing through at least in or payment for the Toray M60 and Toray M40 around April 2008, Ding conspired or acted materials in FirmSpace’s name, thereby interest as more fully described in the in concert with others, known and unknown, obscuring CAST’s role in the transaction. attached Notice, and if any payment is to violate the Regulations or to bring about Ding took these actions despite repeated not made in full by the due date set an act that constitutes a violation of the warnings that an export license was required forth herein, Ding will be assessed, in Regulations. The purpose of the conspiracy for the Toray material. Specifically, on or addition to the full amount of the civil was to export items subject to the Regulations about March 28, 2007, and again on or about penalty and interest, a penalty charge from the United States to the People’s April 5, 2007, Ding received two e-mails from and an administrative charge, as more Republic of China (‘‘China’’), without the an individual he believed to be a U.S. required U.S. Government authorization. fully described in the attached Notice. supplier of the Toray materials that informed Third, for a period of twenty-five (25) Specifically, Ding and others conspired to him of licensing requirements for the Toray export Toray M40JB–6000–50B carbon fiber M60 material. Again, on or about May 7, years from the date of this Order, (‘‘Toray M40’’) and Toray M60JB–6000–50B 2007, Ding received an e-mail from an Jianwei Ding, 51 Bukit Batok Crescent, carbon fiber (‘‘Toray M60’’) from the United individual he believed to be a U.S. supplier #0828 Unity Centre, Singapore 658077; States to China without a license. The Toray of the Toray materials that informed him of Registration #: 29603–050, FCI La Tuna, M40 was subject to the Regulations, licensing requirements for the Toray M40 Federal Correction Institution, P.O. Box classified under Export Control Classification material. Nevertheless, Ding instructed his 3000, Anthony, TX 88021, and when Number (‘‘ECCN’’) 1C010.b, controlled for co-conspirators to go forward with this acting for or on behalf of Ding, his export to China for nuclear proliferation and transaction and to export the Toray materials, representatives, agents, assigns or national security reasons, and valued at which were destined for CAST. approximately $91,800. The Toray M60 was Following the completion of these employees (hereinafter collectively an item subject to the Regulations, classified purchases, the materials were moved to New referred to as ‘‘Denied Person’’) may not under ECCN 1C210.a, controlled for export to York for storage in anticipation of export. participate, directly or indirectly, in any China for nuclear proliferation reasons, and Thereafter on or about October 12, 2007, Ding way in any transaction involving any valued at approximately $223,600. These requested that Cheng make a test export of commodity, software or technology exports required a license pursuant to one box of the Toray M40 materials from the (hereinafter collectively referred to as Sections 742.3 and 742.4 of the Regulations. United States, and Ding provided to Cheng ‘‘item’’) exported or to be exported from In furtherance of the conspiracy, Ding, as the name of a specific individual at a specific the United States that is subject to the the manager of Jowa Globaltech Pte. Ltd., company that would facilitate the export. a.k.a. FirmSpace Pte. Ltd. (‘‘FirmSpace’’), and When the efforts of Cheng to reach the Regulations, or in any other activity Far Eastron Co. Pte. Ltd., Singapore-based specific individual provided by Ding were subject to the Regulations, including, companies that acquired items for customers unsuccessful, on or about November 17, but not limited to: including the China Academy of Space 2007, Cheng asked Ding to provide additional A. Applying for, obtaining, or using Technology (‘‘CAST’’), participated in a instructions and informed Ding that he ‘‘had any license, License Exception, or scheme whereby he directed activities in to make up the story [when] I call for [a] rate export control document; Singapore and the United States to obtain the quote.’’ On or about November 22, 2007, Ding B. Carrying on negotiations Toray materials for CAST, maintained a advised Cheng to try again and to ‘‘only say concerning, or ordering, buying, relationship with CAST, and provided the ‘a customer do[es] have one box goods ship receiving, using, selling, delivering, money required to purchase Toray material to Taiwan’ she will know.’’ storing, disposing of, forwarding, Finally, in furtherance of the conspiracy, for export to CAST. transporting, financing, or otherwise In furtherance of the conspiracy, Ding, on or about April 7, 2008, Ding sent Cheng knowing that his Singapore companies were an e-mail directing the export from the servicing in any way, any transaction arranging for the purchase of Toray materials United States of the 104 kilograms of Toray involving any item exported or to be M60 material to Jowa Globaltech Pte. Ltd., exported from the United States that is 1 The violation alleged to have been committed a.k.a. FirmSpace, in Singapore and of the 211 subject to the Regulations, or in any occurred in 2007 and 2008. The Regulations kilograms of Toray M40 material to New other activity subject to the Regulations; governing the violation at issue are found in the Bluesky Technology Co. Ltd. in Hong Kong. or 2007 through 2008 versions of the Code of Federal These exports were destined for CAST in C. Benefitting in any way from any Regulations (15 CFR parts 730–774 (2007, 2008)). China. In so doing, Ding committed one transaction involving any item exported The 2011 Regulations set forth the procedures that violation of Section 764.2(d) of the apply to this matter. or to be exported from the United States Regulations. 2 50 U.S.C. app. 2401–2420 (2000). Since August that is subject to the Regulations, or in 21, 2001, the Act has been in lapse and the Whereas, Bis and Ding have entered any other activity subject to the President, through Executive Order 13,222 of into a Settlement Agreement pursuant to August 17, 2001 (3 CFR, part 2001 Comp. 783 Regulations. (2002)) which has been extended by successive Section 766.18(a) of the Regulations, Fourth, that no person may, directly Presidential Notices, the most recent being that of whereby they agreed to settle this matter or indirectly, do any of the following: August 12, 2010 (75 FR 50,681 (Aug. 16, 2010)), has in accordance with the terms and A. Export or reexport to or on behalf continued the Regulations in effect under the conditions set forth therein; and of the Denied Person any item subject to International Emergency Economic Powers Act (50 U.S.C. 1701, et seq.). The Act and the Regulations Whereas, I have approved of the terms the Regulations; are available on the Government Printing Office of such Settlement Agreement; It is B. Take any action that facilitates the Web site at: http://www.access.gpo.gov/bis/. therefore ordered: acquisition or attempted acquisition by

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00006 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47146 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

the Denied Person of the ownership, DEPARTMENT OF COMMERCE determination within 245 days after the possession, or control of any item last day of the anniversary month of an subject to the Regulations that has been International Trade Administration order for which a review is requested or will be exported from the United [A–570–909] and a final determination within 120 States, including financing or other days after the date on which the support activities related to a Certain Steel Nails From the Peoples’ preliminary results are published. transaction whereby the Denied Person Republic of China: Notice of Extension However, if it is not practicable to acquires or attempts to acquire such of Time Limits for the Preliminary complete the review within these time ownership, possession or control; Results of the Second Antidumping periods, section 751(a)(3)(A) of the Act Duty Administrative Review and New allows the Department to extend the C. Take any action to acquire from or Shipper Review time limit for the preliminary to facilitate the acquisition or attempted determination to a maximum of 365 AGENCY: acquisition from the Denied Person of Import Administration, days after the last day of the anniversary any item subject to the Regulations that International Trade Administration, month. has been exported from the United Department of Commerce. States; DATES: Effective Date: August 4, 2011. Extension of Time Limit for Preliminary Results of Review D. Obtain from the Denied Person in FOR FURTHER INFORMATION CONTACT: the United States any item subject to the Alexis Polovina, Office 9, AD/CVD We determine that it is not practicable Operations, Import Administration, Regulations with knowledge or reason to complete the preliminary results of International Trade Administration, to know that the item will be, or is these reviews within the current time U.S. Department of Commerce, 14th limits. The Department requires intended to be, exported from the Street and Constitution Avenue, NW., United States; or additional time to analyze recently Washington, DC 20230; telephone: (202) submitted supplemental questionnaire E. Engage in any transaction to service 482–3927. responses, which contained a significant any item subject to the Regulations that Background amount of new sales and factors of has been or will be exported from the production data. The additional time is On August 2, 2010, the Department United States and which is owned, needed to consider these data and their published a notice of opportunity to possessed or controlled by the Denied incorporation into the margin request an administrative review on the Person, or service any item, of whatever calculations for the individually- antidumping order on certain steel nails origin, that is owned, possessed or reviewed respondents, as well as to from the People’s Republic of China controlled by the Denied Person if such consider all of the issues raised by (‘‘PRC’’) for the period of review parties during the course of these service involves the use of any item (‘‘POR’’) August 1, 2009, through July proceedings. Therefore, the Department subject to the Regulations that has been 31, 2010. See Antidumping or is hereby fully extending the time limits or will be exported from the United Countervailing Duty Order, Finding, or States. For purposes of this paragraph, Suspended Investigation; Opportunity for completion of the preliminary servicing means installation, To Request Administrative Review, 75 results by 30 days. The preliminary maintenance, repair, modification or FR 45094 (August 2, 2010). Based upon results will now be due no later than testing. requests for review from various parties, August 31, 2011. The final results continue to be due 120 days after the Fifth, that, after notice and on September 29, 2010, the Department initiated the first antidumping duty publication of the preliminary results. opportunity for comment as provided in This notice is published in Section 766.23 of the Regulations, any administrative review on certain steel nails from the PRC, covering 222 accordance with section 777(i)(1) of the person, firm, corporation, or business Act. organization related to the Denied companies. See Initiation of Person by affiliation, ownership, Antidumping and Countervailing Duty Dated: July 28, 2011. control, or position of responsibility in Administrative Reviews and Request for Gary Taverman, Revocation in Part, 75 FR 60076 the conduct of trade or related services Acting Deputy Assistant Secretary for (September 29, 2010) (‘‘Initiation may also be made subject to the Antidumping and Countervailing Duty Notice’’). On April 28, 2011, the Operations. provisions of the Order. Department published a notice of a [FR Doc. 2011–19704 Filed 8–3–11; 8:45 am] Sixth, that the proposed charging partial rescission and an extension of BILLING CODE 3510–DS–P letter, the Settlement Agreement, and the time period for issuing the this Order shall be made available to the preliminary results by 90 days, to public. August 1, 2011. See Certain Steel Nails DEPARTMENT OF COMMERCE Seventh, that this Order shall be From the Peoples’ Republic of China: International Trade Administration served on Ding and published in the Notice of Extension of Time Limits and Federal Register. Partial Rescission of the Second Antidumping Duty Administrative [A–570–937] This Order, which constitutes the Review, 76 FR 23788 (April 28, 2011). final agency action in this matter, is On July 11, 2011, in accordance with 19 Citric Acid and Certain Citrate Salts effective immediately. CFR 351.214(j), we aligned the From the People’s Republic of China: Issued this 27th day of July 2011. concurrent new shipper review of Extension of Time Limit for the Final Results of the Antidumping Duty David W. Mills, Shanghai Colour Nail Co., Ltd. with the second administrative review. Administrative Review Assistant Secretary of Commerce for Export Enforcement. Statutory Time Limits AGENCY: Import Administration, [FR Doc. 2011–19830 Filed 8–3–11; 8:45 am] Section 751(a)(3)(A) of the Tariff Act International Trade Administration, BILLING CODE 3510–DT–P of 1930, as amended (‘‘Act’’), requires Department of Commerce. the Department to make a preliminary DATES: Effective Date: August 4, 2011.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00007 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47147

FOR FURTHER INFORMATION CONTACT: completion of the final results of this SUPPLEMENTARY INFORMATION: Krisha Hill or Maisha Cryor, AD/CVD review, which is currently due on Background Operations, Office 4, Import October 8, 2011, by 60 days. Therefore, Administration, International Trade the final results are now due no later On November 1, 2010, the Department Administration, U.S. Department of than December 7, 2011. published a notice of opportunity to Commerce, 14th Street and Constitution This notice is published in request an administrative review of the Avenue, NW., Washington, DC 20230; accordance with sections 751(a)(3)(A) antidumping duty order on pure telephone: (202) 482–4037 or (202) 482– and 777(i) of the Act. magnesium in granular form from the 5831, respectively. Dated: July 22, 2011. PRC for the period November 1, 2009, through October 31, 2010.3 On SUPPLEMENTARY INFORMATION: Christian Marsh, November 30, 2010, the Department Background Deputy Assistant Secretary for Antidumping received a timely request from U.S. and Countervailing Duty Operations. On June 30, 2010, the Department of Magnesium LLC (‘‘U.S. Magnesium’’), a [FR Doc. 2011–19703 Filed 8–3–11; 8:45 am] Commerce (‘‘the Department’’) domestic producer and Petitioner in the published the initiation of the BILLING CODE 3510–DS–P underlying investigation of this case, in administrative review of the accordance with 19 CFR 351.213(b), for an administrative review of the antidumping duty order on citric acid DEPARTMENT OF COMMERCE and certain citrate salts (‘‘citric acid’’) antidumping duty order with respect to from the People’s Republic of China International Trade Administration CMN. On December 28, 2010, in (‘‘PRC’’). See Initiation of Antidumping accordance with section 751(a) of the and Countervailing Duty Administrative [A–570–864] Tariff Act of 1930, as amended (‘‘the Act’’), the Department published in the Reviews and Deferral of Administrative Pure Magnesium in Granular Form Federal Register a notice of initiation of Review, 75 FR 37759 (June 30, 2010). On From the People’s Republic of China: this antidumping duty administrative June 10, 2011, the Department Rescission of Antidumping Duty review with respect to CMN.4 On published the preliminary results of the Administrative Review first administrative review of the February 15, 2011, CMN submitted a antidumping duty order of citric acid AGENCY: Import Administration, letter to the Department certifying that from the PRC. See Citric Acid and International Trade Administration, it did not export pure magnesium in Certain Citrate Salts From the People’s Department of Commerce. granular form for consumption in the 5 Republic of China: Preliminary Results DATES: August 4, 2011. United States during the POR. of the First Administrative Review of the SUMMARY: On December 28, 2010, the On March 30, 2011, the Department Antidumping Duty Order; and Partial U.S. Department of Commerce (‘‘the placed on the record information Rescission of Administrative Review, 76 Department’’) published a notice of obtained in response to the FR 34048 (June 10, 2011). This review initiation of an administrative review of Department’s ‘‘No Shipments Inquiry’’ covers the periods November 20, 2008, the antidumping duty order on pure to U.S. Customs and Border Protection through May 19, 2009, and May 29, magnesium in granular form from the (‘‘CBP’’) concerning imports into the 2009, through April 30, 2010. The final People’s Republic of China (‘‘PRC’’).1 United States of subject merchandise results of this review are currently due The review covers one manufacturer/ during the POR.6 These data indicate no later than October 8, 2011. exporter of subject merchandise from that CMN made no entries of subject the PRC: China Minmetals Non-Ferrous merchandise during the POR. Extension of Time Limit for Final On June 15, 2011, the Department Results of Review Metals Co., Ltd. (‘‘CMN’’). The period of review (‘‘POR’’) is November 1, 2009, notified interested parties of its intent to Pursuant to section 751(a)(3)(A) of the through October 31, 2010. Following the rescind this administrative review and Tariff Act of 1930, as amended (‘‘the receipt of a certification of no shipments gave parties until June 22, 2010, to 7 Act’’), the Department shall make a final from CMN and supporting evidence, we provide comments. We did not receive determination in an administrative notified all interested parties of the any comments. review of an antidumping duty order Department’s intent to rescind this Scope of the Order within 120 days after the last day of the review and provided an opportunity to There is an existing antidumping duty anniversary month of the date of comment on the rescission.2 We publication of the order. The Act further order on pure magnesium from the received no comments. Therefore, we People’s Republic of China (PRC). See provides, however, that the Department are rescinding this administrative may extend that 120-day period to 180 review. days if it determines it is not practicable 3 See Antidumping or Countervailing Duty Order, FOR FURTHER INFORMATION CONTACT: Finding, or Suspended Investigation; Opportunity to complete the review within the Laurel LaCivita, AD/CVD Operations, To Request Administrative Review, 75 FR 67079 foregoing time period. Office 8, Import Administration, (November 1, 2010). The Department finds that it is not 4 See Initiation, 75 FR at 81569. International Trade Administration, practicable to complete the final results 5 See letter from CMN, ‘‘Pure Magnesium in of the administrative review of citric U.S. Department of Commerce, 14th Granular Form from the People’s Republic of China—No Sales Certification,’’ date February 15, acid from the PRC within this time Street and Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 2011. limit. Specifically, additional time is 6 482–4243. See Memorandum to the File, ‘‘Pure Magnesium needed to examine respondents’ in Granular Form from the People’s Republic of production process, factors of China; Transmittal of U.S. Customs and Border 1 See Initiation of Antidumping and Protection Information to the File,’’ dated March 30, production, and financial statements. Countervailing Duty Administrative Reviews and 2011, at Attachment I. Furthermore, the Department requires Revocation in Part, 75 FR 81565 (December 28, 7 See Memorandum to the File, ‘‘Pure Magnesium additional time to prepare for on-site 2010) (‘‘Initiation’’). in Granular Form from the People’s Republic of verifications of respondent companies. 2 See Memorandum to the File, ‘‘Intent to Rescind China: Intent to Rescind the 2009–2010 the 2009–2010 Antidumping Duty Administrative Antidumping Duty Administrative Review of Pure Therefore, in accordance with section Review of Pure Magnesium in Granular Form from Magnesium in Granular Form from the People’s 751(a)(3)(A) of the Act, the Department the People’s Republic of China—A–570–864,’’ dated Republic of China—A–570–864,’’ dated June 15, is fully extending the time period for June 15, 2011 (‘‘Intent to Rescind Memorandum’’). 2011.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00008 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47148 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Notice of Antidumping Duty Orders: clarification from the Department before Comments must comply with 15 CFR Pure Magnesium From the People’s such a mixture may be imported free of 301.5(a)(3) and (4) of the regulations and Republic of China, the Russian antidumping duties. be postmarked on or before August 24, Federation and Ukraine; Notice of The merchandise subject to this order 2011. Address written comments to Amended Final Determination of Sales is currently classifiable under item Statutory Import Programs Staff, Room at Less Than Fair Value: Antidumping 8104.30.00 of the HTSUS. Although the 3720, U.S. Department of Commerce, Duty Investigation of Pure Magnesium HTSUS subheading is provided for Washington, DC 20230. Applications From the Russian Federation, 60 FR convenience and customs purposes, our may be examined between 8:30 a.m. and 25691 (May 12, 1995). The scope of this written description of the scope of this 5 p.m. at the U.S. Department of order excludes pure magnesium that is order is dispositive. Commerce in Room 3720. already covered by the existing order on Rescission of the Administrative Review Docket Number: 11–043. Applicant: pure magnesium in ingot form, and Mississippi State University, 3137 currently classifiable under item Based upon the certifications and the Highway 468 West, Pearl, MS 39208. numbers 8104.11.00 and 8104.19.00 of evidence on the record, the Department Instrument: Transmission electron the Harmonized Tariff Schedule of the finds CMN’s claim of no shipments of microscope. Manufacturer: JEOL Ltd., United States (‘‘HTSUS’’). subject merchandise to the United Japan. Intended Use: The instrument The scope of this order includes States during the POR to be will be used in conducting research and imports of pure magnesium products, substantiated. Pursuant to 19 CFR diagnostic work in microbiology and regardless of chemistry, including, 351.213(d)(3), the Department may pathology, to study biological materials without limitation, raspings, granules, rescind an administrative review, in in order to identify bacterial or viral turnings, chips, powder, and briquettes, whole or with respect to a particular pathogens with clinical significance in except as noted above. exporter or producer, if it concludes veterinary medicine. Justification for Pure magnesium includes: (1) that, during the period covered by the Duty-Free Entry: No instruments of the Products that contain at least 99.95 review, there were no entries, exports, same general category or comparable percent primary magnesium, by weight or sales of the subject merchandise. instruments that could otherwise be (generally referred to as ‘‘ultra pure’’ Because there were no entries, exports, used for the intended purpose are being magnesium); (2) products that contain or sales of the subject merchandise by manufactured in the United States. less than 99.95 percent but not less than CMN, the Department is rescinding this Application accepted by Commissioner 99.8 percent primary magnesium, by review in accordance with 19 CFR of Customs: July 7, 2011. weight (generally referred to as ‘‘pure’’ 351.213(d)(3). The Department intends Docket Number: 11–044. Applicant: magnesium); (3) chemical combinations to issue assessment instructions to CBP University of Chicago, Argonne National of pure magnesium and other material(s) fifteen days after the publication of this Laboratory, 9700 South Cass Avenue, in which the pure magnesium content is notice. Antidumping duties shall be Lemont, IL 60439. Instrument: Magneto- 50 percent or greater, but less than 99.8 assessed at rates equal to the cash optical Kerr microscope system. percent, by weight, that do not conform deposit of estimated antidumping duties Manufacturer: Evico Magnetics GmgH, to an ‘‘ASTM Specification for required at the time of entry, or Germany. Intended Use: The instrument Magnesium Alloy’’ 8 (generally referred withdrawal from warehouse, for will be used for real-time imaging of to as ‘‘off specification pure’’ consumption, in accordance with 19 magnetic domains, as well as provide magnesium); and (4) physical mixtures CFR 351.212(c)(2). Kerr effect magnetic hysteresis loops, of pure magnesium and other material(s) We are issuing and publishing this thereby providing important in which the pure magnesium content is notice in accordance with sections information on the reversal behavior in 50 percent or greater, but less than 99.8 751(a)(1) and 777(i) of the Act and 19 ferromagnetic films. Justification for percent, by weight. Excluded from this CFR 351.213(d)(4). Duty-Free Entry: No instruments of the order are mixtures containing 90 Dated: July 27, 2011. same general category or comparable percent or less pure magnesium by Christian Marsh, instruments that meet the technical weight and one or more of certain non- Deputy Assistant Secretary for Antidumping requirements for the intended purpose magnesium granular materials to make and Countervailing Duty Operations. are being manufactured in the United magnesium-based reagent mixtures. The [FR Doc. 2011–19702 Filed 8–3–11; 8:45 am] States. Application accepted by non-magnesium granular materials of BILLING CODE 3510–DS–P Commissioner of Customs: July 14, which the Department is aware used to 2011. make such excluded reagents are: lime, Dated: July 27, 2011. calcium metal, calcium silicon, calcium DEPARTMENT OF COMMERCE carbide, calcium carbonate, carbon, slag Supriya Kumar, coagulants, fluorspar, nephaline syenite, International Trade Administration Acting Director, Subsidies Enforcement feldspar, aluminum, alumina (Al2O3), Office, Office of Policy, Import Administration. calcium aluminate, soda ash, Application(s) for Duty-Free Entry of hydrocarbons, graphite, coke, silicon, Scientific Instruments [FR Doc. 2011–19705 Filed 8–3–11; 8:45 am] BILLING CODE 3510–DS–P rare earth metals/mischmetal, cryolite, Pursuant to Section 6(c) of the silica/fly ash, magnesium oxide, Educational, Scientific and Cultural periclase, ferroalloys, dolomitic lime, Materials Importation Act of 1966 (Pub. DEPARTMENT OF COMMERCE and colemanite. A party importing a L. 89–651, as amended by Pub. L. 106– magnesium-based reagent which 36; 80 Stat. 897; 15 CFR part 301), we International Trade Administration includes one or more materials not on invite comments on the question of [Application No. 88–13A16] this list is required to seek a scope whether instruments of equivalent scientific value, for the purposes for Export Trade Certificate of Review 8 The meaning of this term is the same as that used by the American Society for Testing and which the instruments shown below are Materials in its Annual Book of ASTM Standards: intended to be used, are being ACTION: Notice of issuance of an Export Volume 01.02 Aluminum and Magnesium Alloys. manufactured in the United States. Trade Certificate of Review to Wood

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47149

Machinery Manufacturers of America Inspection Facility, Room 4001, U.S. Dated: July 29, 2011. (‘‘WMMA’’) (Application #88–13A16). Department of Commerce, 14th Street Christian Marsh, and Constitution Avenue, NW., Deputy Assistant Secretary for Antidumping SUMMARY: The U.S. Department of Washington, DC 20230. and Countervailing Duty Operations. Commerce issued an amended Export [FR Doc. 2011–19819 Filed 8–3–11; 8:45 am] Trade Certificate of Review to Wood Dated: July 26, 2011. BILLING CODE 3510–DS–P Machinery Manufacturers of America on Joseph E. Flynn, July 18, 2011. The Certificate has been Office Director, Office of Competition and amended twelve times. The previous Economic Analysis. DEPARTMENT OF COMMERCE amendment was issued to WMMA on [FR Doc. 2011–19573 Filed 8–3–11; 8:45 am] August 16, 2010, and a notice of its BILLING CODE 3510–DR–P International Trade Administration issuance was published in the Federal Register on August 20, 2010 (75 FR [A–552–801] 51439). The original Export Trade DEPARTMENT OF COMMERCE Certain Frozen Fish Fillets From the Certificate of Review No. 88–00016 was Socialist Republic of Vietnam: Notice issued on February 3, 1989, and International Trade Administration of Partial Rescission of the Seventh published in the Federal Register on Antidumping Duty Administrative February 9, 1989 (54 FR 6312). Initiation of Five-Year (‘‘Sunset’’) Review FOR FURTHER INFORMATION CONTACT: Review: Correction Joseph E. Flynn, Director, Office of AGENCY: Import Administration, Competition and Economic Analysis, AGENCY: Import Administration, International Trade Administration, International Trade Administration, by International Trade Administration, Department of Commerce. telephone at (202) 482–5131 (this is not Department of Commerce. SUMMARY: The Department of Commerce a toll-free number) or e-mail at (‘‘Department’’) is conducting an [email protected]. DATES: Effective Date: August 4, 2011 administrative review of the SUPPLEMENTARY INFORMATION: Title III of Correction antidumping duty order on certain the Export Trading Company Act of frozen fish fillets from the Socialist On July 21, 2011, the Department of 1982 (15 U.S.C. Sections 4001–21) Republic of Vietnam (‘‘Vietnam’’). See authorizes the Secretary of Commerce to Commerce (‘‘Department’’) issued a Notice of Antidumping Duty Order: issue Export Trade Certificates of notice of initiation of five-year reviews Certain Frozen Fish Fillets From the Review. The regulations implementing (‘‘Sunset Reviews’’) of certain Socialist Republic of Vietnam, 68 FR Title III are found at 15 CFR part 325 antidumping and countervailing duty 47909 (August 12, 2003). On September (2010). The U.S. Department of orders (‘‘Initiation Notice’’) for 22, 2010, the Department initiated the Commerce, International Trade publication in the Federal Register. See August 1, 2009, through July 31, 2010, Administration, Office of Competition Initiation of Five-Year (‘‘Sunset’’) antidumping duty administrative review and Economic Analysis (‘‘OCEA’’) is Review (signed July 21, 2011, expected on certain frozen fish fillets from issuing this notice pursuant to 15 CFR publication in the Federal Register on Vietnam. See Initiation of Antidumping 325.6(b), which requires the Secretary of August 1, 2011). The Department and Countervailing Duty Administrative Commerce to publish a summary of the inadvertently included two revoked Reviews and Requests for Revocation, issuance in the Federal Register. Under antidumping duty orders, Ball Bearings 75 FR 60076, (September 29, 2010). Section 305(a) of the Export Trading and Parts Thereof from Japan (A–588– Based upon requests for review from various parties, the Department initiated Company Act (15 U.S.C. 4012(b)(1)) and 804) (third review) and Ball Bearings this review with respect to 26 15 CFR 325.11(a), any person aggrieved and Parts Thereof from the United companies.1 On December 27, 2010, by the Secretary’s determination may, Kingdom (A–412–801) (third review), in within 30 days of the date of this notice, the list of antidumping duty 1 (1) An Giang Fisheries Import and Export Joint bring an action in any appropriate proceedings for which the Department Stock Company (aka Agifish or AnGiang Fisheries district court of the United States to set is initiating Sunset Reviews in August Import and Export) (‘‘Agifish’’); (2) Anvifish Co., aside the determination on the ground 2011. See Ball Bearings and Parts Ltd.; (3) Anvifish Joint Stock Company (aka that the determination is erroneous. Anvifish JSC); (4) Asia Commerce Fisheries Joint Thereof From Japan and the United Stock Company (aka Acomfish JSC) (‘‘Acomfish’’); Description of Certified Conduct Kingdom: Revocation of Antidumping (5) Bien Dong Seafood Co., Ltd. (‘‘Bien Dong Duty Orders, 76 FR 41761 (July 15, Seafood’’); (6) Binh An Seafood Joint Stock Co. WMMA’s Export Trade Certificate of (‘‘Binh An’’); (7) Cadovimex II Seafood Import- Review has been amended to: 2011). The Department is not initiating Export and Processing Joint Stock Company (aka 1. Add the following new ‘‘Member’’ Sunset Reviews of the antidumping Cadovimex II) (‘‘Cadovimex II’’); (8) Cantho Import- duty orders on Ball Bearings and Parts Export Seafood Joint Stock Company of the Certificate within the meaning of (‘‘CASEAMEX’’); (9) CUU Long Fish Joint Stock section 325.2(1) of the Regulations (15 Thereof from Japan or Ball Bearings and Company (aka CL-Fish) (‘‘CL Fish’’); (10) East Sea CFR 325.2(1)): TigerStop LLC, Parts Thereof from the United Kingdom Seafoods Limited Liability Company (formerly because those antidumping duty orders known as East Sea Seafoods Joint Venture Co., Ltd.); Vancouver, WA; and (11) East Sea Seafoods Joint Venture Co., Ltd.; (12) 2. Delete the following Member from have been revoked. East Sea Seafoods LLC; (13) Hiep Thanh Seafood WMMA’s Certificate: Saw Trax Mfg., The Initiation Notice is hereby Joint Stock Co. (‘‘Hiep Thanh’’); (14) International Kennesaw, GA. corrected to exclude any reference to the Development & Investment Corporation (also known as IDI) (‘‘IDI’’); (15) Nam Viet Company The effective date of the amended initiation of Sunset Reviews of the Limited (aka NAVICO) (‘‘Nam Viet’’); (16) Nam Viet certificate is April 19, 2011, the date on proceedings concerning Ball Bearings Corporation; (17) NTSF Seafoods Joint Stock which WMMA’s application to amend and Parts Thereof from Japan (A–588– Company (aka NTSF); (18) QVD Food Company, Ltd.(‘‘QVD’’); (19) QVD Dong Thap Food Co., Ltd. was deemed submitted. A copy of the 804) (third review) and Ball Bearings amended certificate will be kept in the (‘‘QVD DT’’); (20) Saigon-Mekong Fishery Co., Ltd. and Parts Thereof from United Kingdom (aka SAMEFICO) (‘‘SAMEFICO’’); (21) Southern International Trade Administration’s (A–412–801) (third review). Fishery Industries Company, Ltd. (aka South Vina) Freedom of Information Records Continued

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47150 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Agifish withdrew its request for an were submitted after the December 28, to govern business proprietary administrative review. On December 28, 2010, 90-day deadline, we will extend information in this segment of the 2010, SAMEFICO withdrew its request the deadline. In this instance, the proceeding. Timely written notification for an administrative review. On Department has not expended of the return/destruction of APO December 28, 2010, Petitioners 2 significant resources analyzing materials or conversion to judicial partially withdrew their August 31, Cadovimex II’s data, and therefore, find protective order is hereby requested. 2010, request for an administrative it reasonable to extend the deadline. See Failure to comply with the regulations review for four companies. These 19 CFR 351.213(d)(1). and terms of an APO is a violation companies include: (1) Agifish; (2) Nam Assessment Rates which is subject to sanction. Viet; (3) Nam Viet Corporation; and (4) This notice is issued and published in SAMEFICO. On March 11, 2011, The Department will instruct U.S. accordance with section 777(i)(1) of the Cadovimex II withdrew its request for Customs and Border Protection (‘‘CBP’’) Tariff Act of 1930, as amended, and 19 an administrative review. On March 14, to assess antidumping duties on all CFR 351.213(d)(4). 2011, Petitioners withdrew their review appropriate entries. For those companies for which this review has Dated: July 29, 2011. request for Cadovimex II. The Gary Taverman, preliminary results of this been rescinded and which have a separate rate from a prior segment of Acting Deputy Assistant Secretary for administrative review are currently due Antidumping and Countervailing Duty no later than August 31, 2011.3 this proceeding, antidumping duties shall be assessed at rates equal to the Operations. DATES: Effective Date: August 4, 2011. cash deposit of estimated antidumping [FR Doc. 2011–19815 Filed 8–3–11; 8:45 am] FOR FURTHER INFORMATION CONTACT: duties required at the time of entry, or BILLING CODE 3510–DS–P Alexis Polovina and Javier Barrientos, withdrawal from warehouse, for Office 9, AD/CVD Operations, Import consumption, in accordance with 19 Administration, International Trade CFR 351.212(c)(2). Accordingly, the DEPARTMENT OF COMMERCE Administration, U.S. Department of Department intends to issue appropriate International Trade Administration Commerce, 14th Street and Constitution assessment instructions directly to CBP Avenue, NW., Washington, DC 20230; 15 days after publication of this notice [A–570–975, A–201–840] telephone: (202) 482–3927 and (202) for Agifish, SAMEFICO, and Cadovimex 482–2243, respectively. II. Galvanized Steel Wire From the People’s Republic of China and Partial Rescission of Review The Department cannot order liquidation for companies which, Mexico: Postponement of Preliminary The applicable regulation, 19 CFR although they are no longer under Determinations of Antidumping Duty 351.213(d)(1), states that if a party that review as a separate entity, may still be Investigations requested an administrative review under review as part of the Vietnam- AGENCY: Import Administration, withdraws the request within 90 days of wide entity. Therefore, the Department the publication of the notice of International Trade Administration, cannot, at this time, order liquidation of Department of Commerce. initiation of the requested review, the entries for the following companies: DATES: Effective Date: August 4, 2011. Secretary will rescind the review. Nam Viet and Nam Viet Corporation. FOR FURTHER INFORMATION CONTACT: Parties withdrew their review requests The Department intends to issue with respect to four exporters of subject liquidation instructions for the Vietnam- Irene Gorelik (the People’s Republic of merchandise within the 90-day wide entities 15 days after publication China), Office 9, or Patrick Edwards deadline, in accordance with 19 CFR of the final results of this review. (Mexico), Office 7, AD/CVD Operations, 351.213(d)(1). Import Administration, International Therefore, in accordance with section Notification to Importers Trade Administration, U.S. Department 351.213(d)(1) of the Department’s This notice serves as a final reminder of Commerce, 14th Street and regulations, we are partially rescinding to importers for whom this review is Constitution Avenue, NW., Washington, this review with respect to the following being rescinded, as of the publication DC 20230, telephone: (202) 482–6905 or companies: (1) Agifish; (2) Nam Viet; (3) date of this notice, of their (202) 482–8029, respectively. Nam Viet Corporation; and 4) responsibility under 19 CFR SUPPLEMENTARY INFORMATION: SAMEFICO. The Department is also 351.402(f)(2) to file a certificate Background rescinding this review with respect to regarding the reimbursement of Cadovimex II. Although Cadovimex II’s antidumping duties prior to liquidation On April 27, 2011, the Department of and Petitioner’s March 11, 2011, and of the relevant entries during this Commerce (the Department) published March 14, 2011, withdrawal requests review period. Failure to comply with in the Federal Register the initiation of this requirement could result in the the antidumping duty investigations of (‘‘South Vina’’); (22) Thien Ma Seafood Co., Ltd. Secretary’s presumption that galvanized steel wire from the People’s (‘‘THIMACO’’); (23) Thuan Hung Co., Ltd. (aka Republic of China (PRC) and Mexico. THUFICO) (‘‘Thuan Hung’’); (24) Vinh Hoan reimbursement of the antidumping Corporation (‘‘Vinh Hoan’’); (25) Vinh Hoan duties occurred and the subsequent The period of investigation (POI) for the Company, Ltd.; and (26) Vinh Quang Fisheries assessment of double antidumping PRC investigation is July 1, 2010, Corporation (‘‘Vinh Quang’’). duties. through December 31, 2010, and the POI 2 Catfish Farmers of America and individual U.S. for the Mexico investigation is January catfish processors, America’s Catch, Consolidated Notification Regarding Administrative 1, 2010, through December 31, 2010. See Catfish Companies, LLC dba Country Select Catfish, Protective Orders (‘‘APO’’) Delta Pride Catfish, Inc., Harvest Select Catfish, Galvanized Steel Wire From the People’s Inc., Heartland Catfish Company, Pride of the Pond, This notice also serves as a reminder Republic of China and Mexico: and Simmons Farm Raised Catfish, Inc. to parties subject to APO of their Initiation of Antidumping Duty 3 See Certain Frozen Fish Fillets from the Socialist responsibility concerning the return or Investigations, 76 FR 23548 (April 27, Republic of Vietnam: Extension of Time Limit for Preliminary Results of the Seventh Antidumping destruction of proprietary information 2011). The current deadline for the Duty Administrative Review, 76 FR 206263 (April disclosed under APO in accordance preliminary determinations of these 13, 2011). with 19 CFR 351.305, which continues investigations is September 7, 2011.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47151

Postponement of Preliminary DEPARTMENT OF COMMERCE Quan Li and Yongnuo submitted Determinations responses to the original and International Trade Administration supplemental sections A, C, D and Section 733(b)(1)(A) of the Tariff Act [A–570–928] Importer antidumping duty of 1930, as amended (the Act), requires questionnaires. the Department to complete its Uncovered Innerspring Units From the On January 18, 2011, the Department preliminary determinations for these People’s Republic of China: sent interested parties a letter requesting investigations no later than 140 days Preliminary Intent To Rescind New comments on surrogate country after the date of issuance of the Shipper Review selection and information pertaining to initiation (i.e., September 7, 2011). valuing factors of production. On April AGENCY: Import Administration, 25, 2011, we received surrogate country On July 13, 2011, the petitioners, International Trade Administration, Davis Wire Corporation, Johnstown comments and surrogate value data from Department of Commerce. Quan Li and Yongnuo, as well as from Wire Technologies, Inc., Mid-South SUMMARY: On February 19, 2009, the Petitioner.3 Wire Company, Inc., National Standard, Department of Commerce (the On March 28, 2011, the Department LLC, and Oklahoma Steel & Wire ‘‘Department’’) published in the Federal extended the deadline for the Company, Inc. (collectively, the Register the antidumping duty order on preliminary results of this review to petitioners) made a timely request uncovered innerspring units June 1, 2011.4 On June 13, 2011, the pursuant to 19 CFR 351.205(e) for a (‘‘innersprings’’) from the People’s 1 Department extended the deadline for postponement of the preliminary Republic of China (‘‘PRC’’). The the preliminary results of this review to determinations with respect to the PRC Department is conducting a new shipper July 15, 2011.5 On July 20, 2011, the and Mexico. The petitioners requested review (‘‘NSR’’) of the Order, covering Department extended the deadline for the period of review (‘‘POR’’) of postponement of the preliminary the preliminary results of this review to February 1, 2010–July 31, 2010. As determinations of the antidumping duty July 26, 2011.6 investigations with respect to both the discussed below, we preliminarily determine that Foshan Nanhai Jiujiang Scope of the Order PRC and Mexico so that they have Quan Li Spring Hardware Factory’s adequate time to analyze and comment The merchandise subject to the order (‘‘Quan Li’’) sale under review is not upon the responses of the various is uncovered innerspring units bona fide. As such, we are preliminarily composed of a series of individual metal companies which have been selected as rescinding the NSR for Quan Li. respondents. See Letters from the springs joined together in sizes EFFECTIVE DATES: August 4, 2011. Petitioners to the Department, titled corresponding to the sizes of adult FOR FURTHER INFORMATION CONTACT: Paul ‘‘Request for Extension of Time for mattresses (e.g., twin, twin long, full, Walker, AD/CVD Operations, Office 9, full long, queen, California king and Preliminary Determination,’’ dated July Import Administration, International king) and units used in smaller 13, 2011. Trade Administration, U.S. Department constructions, such as crib and youth For the reasons stated by the of Commerce, 14th Street and mattresses. All uncovered innerspring petitioners and because there are no Constitution Avenue, NW., Washington, units are included in the scope compelling reasons to deny the request, DC 20230; telephone: (202) 482–0413. regardless of width and length. Included the Department is postponing the SUPPLEMENTARY INFORMATION: within this definition are innersprings deadline for the preliminary typically ranging from 30.5 inches to 76 Background determinations with respect to the PRC inches in width and 68 inches to 84 and Mexico pursuant to section On August 20, 2010, pursuant to inches in length. Innersprings for crib 733(c)(1)(A) of the Act and 19 CFR section 751(a)(2)(B)(i) of the Tariff Act mattresses typically range from 25 351.205(e) by 50 days to October 27, of 1930, as amended (the ‘‘Act’’), and inches to 27 inches in width and 50 2011. In accordance with section section 351.214(c) of the Department’s inches to 52 inches in length. 735(a)(1) of the Act, the deadline for the regulations, the Department received a Uncovered innerspring units are final determinations of these NSR request from Quan Li and Foshan suitable for use as the innerspring Yongnuo Import & Export Co., Ltd. antidumping duty investigations will component in the manufacture of (‘‘Yongnuo’’). Quan Li certified that it continue to be 75 days after the date of innerspring mattresses, including was the producer of the subject mattresses that incorporate a foam these preliminary determinations, merchandise upon which the request encasement around the innerspring. unless extended. was based. Yongnuo certified that it was Pocketed and non-pocketed This notice is issued and published in the exporter of the subject merchandise innerspring units are included in this accordance with section 733(c)(2) of the upon which the request was based. On definition. Non-pocketed innersprings Act and 19 CFR 351.205(f)(1). October 6, 2010, the Department issued are typically joined together with helical Dated: July 29, 2011. its original antidumping duty wire and border rods. Non-pocketed questionnaire. On October 7, 2010, the Ronald K. Lorentzen, Department published a notice of 3 The petitioner is Leggett and Platt, Incorporated, Deputy Assistant Secretary for Import initiation of the NSR of the Order for hereafter referred to as ‘‘Petitioner.’’ Administration. Quan Li and Yongnuo.2 Between 4 See Uncovered Innerspring Units from the [FR Doc. 2011–19822 Filed 8–3–11; 8:45 am] People’s Republic of China: Extension of November 5, 2010, and April 29, 2011, Preliminary Results of Antidumping Duty New BILLING CODE 3510–DS–P Shipper Review, 76 FR 17107 (March 28, 2011). 1 See Uncovered Innerspring Units from the 5 See Uncovered Innerspring Units from the People’s Republic of China: Notice of Antidumping People’s Republic of China: Extension of Duty Order, 74 FR 7661 (February 19, 2009) Preliminary Results of Antidumping Duty New (‘‘Order’’). Shipper Review, 76 FR 34207 (June 13, 2011). 2 See Uncovered Innerspring Units from the 6 See Uncovered Innerspring Units from the People’s Republic of China: Initiation of People’s Republic of China: Extension of Antidumping Duty New Shipper Review, 75 FR Preliminary Results of Antidumping Duty New 62107 (October 7, 2010). Shipper Review, 76 FR 43263 (July 20, 2011).

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00012 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47152 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

innersprings are included in this Department’s practice of evaluating the Assessment Rates definition regardless of whether they circumstances surrounding an NSR sale, Upon issuance of the final results, the have border rods attached to the so that a respondent does not unfairly Department will determine, and U.S. perimeter of the innerspring. Pocketed benefit from an atypical sale and obtain Customs and Border Protection (‘‘CBP’’) innersprings are individual coils a lower dumping margin than the shall assess, antidumping duties on all covered by a ‘‘pocket’’ or ‘‘sock’’ of a producer’s usual commercial practice appropriate entries. If we proceed to a nonwoven synthetic material or woven would dictate.12 Where the Department final rescission of Quan Li’s NSR, Quan material and then glued together in a finds that a sale is not bona fide, the Li’s entry will be assessed at the rate linear fashion. Department will exclude the sale from entered.16 If we do not proceed to a final Uncovered innersprings are classified its export price calculations.13 rescission of Quan Li’s NSR, pursuant to under subheading 9404.29.9010, Based on the totality of section 351.212(b)(1) of the 9404.29.9005 and 9404.29.9011 and Department’s regulations, we will have also been classified under circumstances, we preliminarily find that the sale made by Quan Li during calculate importer-specific (or customer) subheadings 9404.10.0000, ad valorem duty assessment rates. We the POR was not a bona fide commercial 7326.20.0070, 7320.20.5010, or will instruct CBP to assess antidumping transaction and should be excluded 7320.90.5010 of the Harmonized Tariff duties on all appropriate entries covered Schedule of the United States from the Department’s calculations. by this review if any importer-specific (‘‘HTSUS’’). The HTSUS subheadings Quan Li’s POR quantity was atypical assessment rate calculated in the final are provided for convenience and and its price was high. In addition, we results of this review is above de customs purposes only; the written sought information from the importer in minimis. In either case, the Department description of the scope of the order is order to evaluate the commercial intends to issue appropriate assessment dispositive. reasonableness of the sale and to instructions directly to CBP 15 days Bona Fides Analysis consider whether this sale is predictive after publication of the final results of of future commercial activity. The Consistent with Department practice, this review. importer provided conflicting we examined the bona fides of Quan information, it has not substantiated its Cash Deposit Requirements Li’s sale.7 In evaluating whether a sale claims that the subject merchandise was Effective upon publication of the final in an NSR is commercially reasonable or rescission of this NSR, or the final result typical of normal business practices, resold for profit; and it has also said that it has no other purchases of subject of this NSR, we will instruct CBP to and therefore bona fide, the Department discontinue the option of posting a bond considers, inter alia, such factors as (a) merchandise. Because much of the factual information used in our analysis or security in lieu of a cash deposit for The timing of the sale, (b) the price and entries of subject merchandise by Quan quantity, (c) the expenses arising from of the bona fides of the transaction involves business proprietary Li, pursuant to section 751(a)(2)(B)(iii) the transaction, (d) whether the goods of the Act and section 351.214(e) of the were resold at a profit, and (e) whether information, a full discussion of the basis for our preliminary finding that Department’s regulations. If we proceed the transaction was made on an arm’s to a final rescission of this NSR, the 8 the sale is not bona fide is set forth in length basis. Accordingly, the cash deposit rate will continue to be the the Quan Li Bona Fides Memo.14 Department considers a number of PRC-wide rate for Quan Li because the Because we have found Quan Li’s sole factors in its bona fides analysis, ‘‘all of Department will not have determined an which may speak to the commercial sale to be not bona fide, we cannot rely individual margin of dumping for Quan realities surrounding an alleged sale of on this sale to calculate a dumping 9 Li. If we issue final results for this NSR, subject merchandise.’’ In TTPC, the margin and, therefore, there is no sale we will instruct CBP to collect cash court also affirmed the Department’s on which we can base this review and deposits, effective upon the publication decision that any factor which indicates we are preliminarily rescinding Quan of the final results, at the rates 15 that the sale under consideration is not Li’s NSR. established therein. likely to be typical of those which the producer will make in the future is Preliminary Rescission of NSR Disclosure 10 relevant, and found that the weight For the foregoing reasons, the The Department intends to disclose to given to each factor investigated will Department preliminarily finds that parties of this proceeding the depend on the circumstances calculation performed in reaching the 11 Quan Li’s sale is not bona fide and that surrounding the sale. Finally, in New this sale does not provide a reasonable, preliminary results within five days of Donghua, the CIT affirmed the or reliable, basis for calculating a the date of publication of this notice in dumping margin. Because this non-bona accordance with section 351.224(b) of 7 See, e.g., Honey from the People’s Republic of the Department’s regulations. China: Rescission and Final Results of fide sale was the only sale of subject Antidumping Duty New Shipper Reviews, 71 FR merchandise during the POR, the Public Comment and FOP Data 58579 (October 4, 2006) and accompanying Issues Department is preliminarily rescinding In accordance with section and Decision Memorandum at Comment 1b. the NSR of Quan Li. 8 See Tianjin Tiancheng Pharmaceutical Co., Ltd. 351.301(c)(3)(ii) of the Department’s v. United States, 366 F. Supp. 2d 1246, 1249–1250 regulations, for the final results, (CIT 2005) (‘‘TTPC’’). 12 New Donghua, 374 F. Supp. 2d at 1344. interested parties may submit publicly 9 13 See Hebei New Donghua Amino Acid Co., Ltd. See TTPC, 366 F. Supp. 2d at 1249. available information to value factors of v. United States, 374 F. Supp. 2d 1333, 1342 (CIT 14 See Memorandum to James C. Doyle, Director, 2005) (‘‘ New Donghua’’) (citing Fresh Garlic From Office 9, through Scot T. Fullerton, Program production (‘‘FOP’’) within 20 days after the People’s Republic of China: Final Results of Manager, Office 9, from Paul Walker, Case Analyst, the date of publication of these Antidumping Administrative Review and Rescission Office 9, First New Shipper Review of Uncovered preliminary results. Interested parties of New Shipper Review, 67 FR 11283 (March 13, Innerspring Units from the People’s Republic of must provide the Department with 2002), and accompanying Issues and Decision China: Bona Fide Analysis of Foshan Nanhai Memorandum: New Shipper Review of Clipper Jiujiang Quan Li Spring Hardware Factory’s New supporting documentation for the Manufacturing Ltd.). Shipper Sale (‘‘Quan Li Bona Fide Memo’’). 10 See TTPC, 366 F. Supp. 2d at 1250. 15 See Quan Li Bona Fide Memo, TTPC and New 16 See section 351.212(c) of the Department’s 11 Id. at 1263. Donghua. regulations.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00013 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47153

publicly available information to value Notification to Importers I. Abstract each FOP. Additionally, in accordance This notice serves as a preliminary United States (U.S.) vessels that fish with section 351.301(c)(1) of the reminder to importers of its on the high seas (waters beyond the U.S. Department’s regulations, for the final responsibility under section exclusive economic zone) are required results of this NSR, interested parties 351.402(f)(2) of the Department’s to possess a permit issued under the may submit factual information to rebut, regulations to file a certificate regarding High Seas Fishing Compliance Act clarify, or correct factual information the reimbursement of antidumping (HSFCA). Applicants for this permit submitted by an interested party within duties prior to liquidation of the must submit information to identify ten days of the applicable deadline for relevant entries during this POR. Failure their vessels, owners and operators of submission of such factual information. to comply with this requirement could the vessels, and intended fishing areas. However, the Department notes that result in the Secretary’s presumption The application information is used to section 351.301(c)(1) of the that reimbursement of antidumping process permits and to maintain a Department’s regulations permits new duties occurred and the subsequent register of vessels authorized to fish on information only insofar as it rebuts, assessment of double antidumping the high seas. clarifies, or corrects information duties. The HSFCA also requires vessels be recently placed on the record.17 We are issuing and publishing these marked for identification and preliminary results in accordance with enforcement purposes. Vessels must be In accordance with section sections 751(a)(2)(B) and 777(i) of the marked in three locations (port and 351.309(c)(1)(ii) of the Department’s Act, and sections 351.214(h) and starboard sides of the deckhouse or hull, regulations, interested parties may 351.221(b)(4) of the Department’s and on a weather deck) with their submit case briefs and/or written regulations. official number or radio call sign. comments no later than 30 days after the Dated: July 26, 2011. Operators of vessels licensed under date of publication of the preliminary the HFSCA are required to report their Ronald K. Lorentzen, results of this NSR. In accordance with catch and fishing effort when fishing on section 351.309(d) of the Department’s Deputy Assistant Secretary for Import the high seas. The requirement is for Administration. regulations, rebuttal briefs and rebuttals fishery management purposes and to to written comments, limited to issues [FR Doc. 2011–19712 Filed 8–3–11; 8:45 am] provide data to international raised in such briefs or comments, may BILLING CODE 3510–DS–P organizations. Vessels already be filed no later than five days after the maintaining logbooks under other deadline for submitting the case briefs. specific regulations are not required to DEPARTMENT OF COMMERCE The Department requests that interested maintain an additional logbook. These parties provide an executive summary National Oceanic and Atmospheric requirements apply to all vessels fishing of each argument contained within the Administration on the high seas. case briefs and rebuttal briefs. II. Method of Collection Any interested party may request a Proposed Information Collection; Comment Request; High Seas Fishing Owners or operators of high seas hearing within 30 days of publication of fishing vessels must submit paper 18 Permit Application Information these preliminary results. Requests permit application forms and paper should contain the following AGENCY: National Oceanic and logbook pages to National Marine information: (1) The party’s name, Atmospheric Administration (NOAA), Fisheries Service (NMFS). No address, and telephone number; (2) the Commerce. information is submitted for the vessel number of participants; and (3) a list of ACTION: Notice. marking requirement. The markings are the issues to be discussed. Oral only displayed on the vessel. presentations will be limited to issues SUMMARY: The Department of raised in the briefs. If we receive a Commerce, as part of its continuing III. Data request for a hearing, we intend to hold effort to reduce paperwork and OMB Control Number: 0648–0304. the hearing seven days after the respondent burden, invites the general Form Number: None. deadline for submission of the rebuttal public and other Federal agencies to Type of Review: Regular submission. briefs at the U.S. Department of take this opportunity to comment on Affected Public: Business or other for- Commerce, 14th Street and Constitution proposed and/or continuing information profit organizations. Avenue, NW., Washington, DC 20230. collections, as required by the Estimated Number of Respondents: Paperwork Reduction Act of 1995. 120. The Department intends to issue the DATES: Written comments must be Estimated Time per Response: 30 final results of this NSR, which will submitted on or before October 3, 2011. minutes per application form; logbook include the results of its analysis raised reports, 6 minutes per day for days fish ADDRESSES: Direct all written comments in any such comments, within 90 days are caught, 1 minute per day for days of publication of these preliminary to Diana Hynek, Departmental Paperwork Clearance Officer, when fish are not caught; 45 minutes results, pursuant to section (15 minutes for each of 3 locations) for 751(a)(2)(B)(iv) of the Act and section Department of Commerce, Room 6616, 14th and Constitution Avenue, NW., vessel markings. 351.214(i) of the Department’s Estimated Total Annual Burden Washington, DC 20230 (or via the regulations. Hours: 948. Internet at [email protected]). Estimated Total Annual Cost to FOR FURTHER INFORMATION CONTACT: 17 See Glycine from the People’s Republic of Public: $19,795. China: Final Results of Antidumping Duty Requests for additional information or Administrative Review and Final Rescission, in copies of the information collection IV. Request for Comments Part, 72 FR 58809 (October 17, 2007) and instrument and instructions should be Comments are invited on: (a) Whether accompanying Issues and Decision Memorandum at directed to Mi Ae Kim, (301) 427–8365 Comment 2. the proposed collection of information 18 See section 351.310(c) of the Department’s or [email protected]. is necessary for the proper performance regulations. SUPPLEMENTARY INFORMATION: of the functions of the agency, including

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00014 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47154 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

whether the information shall have I. Abstract Dated: July 29, 2011. practical utility; (b) the accuracy of the The Cooperative Game Fish Tagging Gwellnar Banks, agency’s estimate of the burden Program was initiated in 1971 as part of Management Analyst, Office of the Chief (including hours and cost) of the a comprehensive research program Information Officer. proposed collection of information; (c) resulting from passage of Public Law [FR Doc. 2011–19721 Filed 8–3–11; 8:45 am] ways to enhance the quality, utility, and 86–359, Study of Migratory Game Fish, BILLING CODE 3510–22–P clarity of the information to be and other legislative acts under which collected; and (d) ways to minimize the the National Marine Fisheries Service burden of the collection of information (NMFS) operates. The Cooperative DEPARTMENT OF COMMERCE on respondents, including through the Tagging Center attempts to determine National Oceanic and Atmospheric use of automated collection techniques the migration patterns of, and other Administration or other forms of information biological information for, billfish, technology. tunas, and swordfish. The fish tagging Proposed Information Collection; Comments submitted in response to report is provided to the angler with the Comment Request; California Signage this notice will be summarized and/or tags, and he/she fills out the card with Plan: Evaluation of Interpretive Signs included in the request for OMB the information when a fish is tagged approval of this information collection; and mails it to NMFS. Information on AGENCY: National Oceanic and they also will become a matter of public each species is used by NMFS to Atmospheric Administration (NOAA), record. determine migratory patterns, distance Commerce. Dated: July 29, 2011. traveled, stock boundaries, age, and ACTION: Notice. growth. These data are necessary input Gwellnar Banks, SUMMARY: for developing management criteria by The Department of Management Analyst, Office of the Chief Commerce, as part of its continuing Information Officer. regional fishery management councils, states, and NMFS. effort to reduce paperwork and [FR Doc. 2011–19757 Filed 8–3–11; 8:45 am] respondent burden, invites the general BILLING CODE 3510–22–P II. Method of Collection public and other Federal agencies to Information is submitted by mail. take this opportunity to comment on proposed and/or continuing information DEPARTMENT OF COMMERCE III. Data collections, as required by the OMB Control Number: 0648–0247. Paperwork Reduction Act of 1995. National Oceanic and Atmospheric Form Number: NOAA form 88–162. Administration DATES: Written comments must be Type of Review: Regular submission submitted on or before October 3, 2011. Proposed Information Collection; (extension of a current information ADDRESSES: Direct all written comments Comment Request; Cooperative Game collection). to Diana Hynek, Departmental Affected Public: Individuals or Fish Tagging Report Paperwork Clearance Officer, households. Department of Commerce, Room 6616, Estimated Number of Respondents: AGENCY: National Oceanic and 14th and Constitution Avenue, NW., Atmospheric Administration (NOAA), 12,000. Estimated Time per Response: 2 Washington, DC 20230 (or via the Commerce. minutes. Internet at [email protected]). ACTION: Notice. Estimated Total Annual Burden FOR FURTHER INFORMATION CONTACT: Hours: 400 hours. Requests for additional information or SUMMARY: The Department of Estimated Total Annual Cost to copies of the information collection Commerce, as part of its continuing Public: $0. instrument and instructions should be effort to reduce paperwork and directed to Seaberry Nachbar, 831–626– IV. Request for Comments respondent burden, invites the general 1023, [email protected]. public and other Federal agencies to Comments are invited on: (a) Whether SUPPLEMENTARY INFORMATION: the proposed collection of information take this opportunity to comment on I. Abstract proposed and/or continuing information is necessary for the proper performance collections, as required by the of the functions of the agency, including This request is for a regular Paperwork Reduction Act of 1995. whether the information shall have submission (new collection). The practical utility; (b) the accuracy of the California Signage Plan is an organized DATES: Written comments must be agency’s estimate of the burden and systematic way to develop and submitted on or before October 3, 2011. (including hours and cost) of the install graphic signs along the California ADDRESSES: Direct all written comments proposed collection of information; (c) coastline and inland that interpret the to Diana Hynek, Departmental ways to enhance the quality, utility, and natural and cultural resources of a Paperwork Clearance Officer, clarity of the information to be particular location and its connection to Department of Commerce, Room 6616, collected; and (d) ways to minimize the the sanctuaries located within 14th and Constitution Avenue, NW., burden of the collection of information California. To date, a strategic approach Washington, DC 20230 (or via the on respondents, including through the to evaluating interpretive signs Internet at [email protected]). use of automated collection techniques produced by the Office of National or other forms of information Marine Sanctuaries has not been FOR FURTHER INFORMATION CONTACT: technology. developed; therefore, NOAA does not Requests for additional information or Comments submitted in response to know if the messages trying to be copies of the information collection this notice will be summarized and/or conveyed to their audiences are instrument and instructions should be included in the request for OMB effective. NOAA is proposing to conduct directed to Eric Orbesen, (305) 361– approval of this information collection; an online and onsite survey of 4253 or [email protected]. they also will become a matter of public approximately 400 visitors to the SUPPLEMENTARY INFORMATION: record. locations where signs are currently

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00015 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47155

installed. The questions outlined in the DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: For survey examine the public’s use of the further information about this meeting signs, understanding of the signs’ National Oceanic and Atmospheric and the CIE Review of the BSAI crab content, understanding and awareness Administration EDR program, please visit the Alaska of protected areas/zones and how those Fisheries Science Center Web site at messages are portrayed in regulatory RIN 0648–XA614 http://www.afsc.noaa.gov/. For further signs, demographics of the target information on the Crab Rationalization audience, interest in alternate sources of Fisheries of the Exclusive Economic Program, please visit the NMFS Alaska interpretive content, perception of the Zone Off Alaska; Bering Sea and Region Web site at http:// National Marine Sanctuaries identity, Aleutian Islands Crab Rationalization www.alaskafisheries.noaa.gov. Program; Public Meeting and awareness of the national marine Special Accommodations sanctuary system. AGENCY: National Marine Fisheries This meeting is physically accessible II. Method of Collection Service (NMFS), National Oceanic and to people with disabilities. Requests for Atmospheric Administration (NOAA), Half of the respondents will use paper special accommodations should be Commerce. forms completed onsite. Half of the directed to Brian Garber-Yonts (see FOR respondents will be asked to complete ACTION: Notice of peer review meeting. FURTHER INFORMATION CONTACT) at least 5 the survey online. working days before the workshop date. SUMMARY: NMFS has requested the Dated: August 1, 2011. III. Data Center for Independent Experts (CIE) to Margo Schulze-Haugen, conduct a peer review of the agency’s OMB Control Number: None. economic data collection program for Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service. Form Number: None. the Bering Sea/Aleutian Islands crab Type of Review: Regular submission fisheries managed under the BSAI Crab [FR Doc. 2011–19811 Filed 8–3–11; 8:45 am] (new collection). Rationalization program. The CIE, BILLING CODE 3510–22–P Affected Public: Individuals or operated by Northern Taiga Ventures, households. Inc., provides independent peer reviews DEPARTMENT OF COMMERCE Estimated Number of Respondents: of NMFS’s fisheries stock assessments 400. and other science products. The BSAI National Oceanic and Atmospheric Crab Economic Data Report (EDR) Estimated Time per Response: 8 Administration program administered by NMFS began minutes. collecting cost, earnings and RIN 0648–XW30 Estimated Total Annual Burden employment data in 2005, concurrently Hours: 53 hours. Takes of Marine Mammals Incidental to with the transition of BSAI crab Specified Activities; Pile-Driving and Estimated Total Annual Cost to fisheries to the rationalized management Public: $0 in recordkeeping/reporting Renovation Operations on the Trinidad regime. The program was developed Pier by the Cher-Ae Heights Indian costs. under the direction of the North Pacific Community of the Trinidad Rancheria IV. Request for Comments Fishery Management Council (Council). in Trinidad, CA The CIE review will examine the Comments are invited on: (a) Whether scientific methods and practices AGENCY: National Marine Fisheries the proposed collection of information employed by NMFS in the design and Service (NMFS), National Oceanic and is necessary for the proper performance administration of the EDR program and Atmospheric Administration (NOAA), of the functions of the agency, including dissemination of results, assess whether Commerce. whether the information shall have the data and information produced ACTION: Notice; Issuance of an Incidental practical utility; (b) the accuracy of the represent the best available science, and Take Authorization (ITA). agency’s estimate of the burden provide recommendations for (including hours and cost) of the methodological improvements to SUMMARY: In accordance with the proposed collection of information; (c) achieve best scientific practices in Marine Mammal Protection Act ways to enhance the quality, utility, and economic data collection and analysis of (MMPA) regulation, notification is clarity of the information to be BSAI crab fisheries. The public is hereby given that NMFS has issued an collected; and (d) ways to minimize the invited to attend and observe the Incidental Harassment Authorization burden of the collection of information presentations and discussions between (IHA) to the Cher-Ae Heights Indian on respondents, including through the the CIE panel and the NMFS scientists Community of the Trinidad Rancheria (Trinidad Rancheria) to take small use of automated collection techniques and contractors who have administered numbers of marine mammals, by Level or other forms of information the data collection. technology. B harassment, incidental to pile-driving DATES: The public portion of the and renovation operations for the Comments submitted in response to meeting will be held August 23–24, Trinidad Pier Reconstruction Project in this notice will be summarized and/or 2011, 9 a.m. to 4:30 p.m. Pacific Trinidad, California. included in the request for OMB standard time. DATES: approval of this information collection; Effective August 1, 2011 through ADDRESSES: The meeting will be held in January 31, 2012. they also will become a matter of public the Observer Training Room, Building 4 record. ADDRESSES: A copy of the IHA is of the National Marine Fisheries available by writing to P. Michael Dated: July 29, 2011. Service, Alaska Fisheries Science Payne, Chief, Permits, Conservation, Gwellnar Banks, Center, 7600 Sand Point Way, NE., and Education Division, Office of Management Analyst, Office of the Chief Seattle, WA 98115. Protected Resources, National Marine Information Officer. FOR FURTHER INFORMATION CONTACT: Fisheries Service, 1315 East-West [FR Doc. 2011–19720 Filed 8–3–11; 8:45 am] Brian Garber-Yonts, 206–526–7143 or Highway, Silver Spring, MD 20910 or by BILLING CODE 3510–22–P [email protected]. telephoning the contacts listed here.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00016 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47156 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

A copy of the application containing Section 101(a)(5)(D) of the MMPA Description of the Specified Activities a list of the references used in this establishes a 45-day time limit for The Trinidad Pier, located on document may be obtained by writing to NMFS’s review of an application Trinidad Bay, is an antiquated structure the address specified above, telephoning followed by a 30-day public notice and that requires reconstruction in order to the contact listed below (see FOR comment period on any proposed maintain public safety and to redress FURTHER INFORMATION CONTACT), or authorizations for the incidental certain environmental deficiencies in visiting the Internet at: http:// harassment of small numbers of marine the existing structure. The 165 m (540 www.nmfs.noaa.gov/pr/permits/ mammals. Within 45 days of the close ft) long pier is located on tidelands incidental.htm#applications. The of the public comment period, NMFS granted by the State of California to the following associated documents are also must either issue or deny the City of Trinidad and leased by the available at the same internet address: authorization. Trinidad Rancheria. The project area ‘‘Biological Assessment, Trinidad Pier Except with respect to certain consists of the pier (0.31 acres) and a Replacement, Cher-Ae Heights Indian activities not pertinent here, the MMPA nearby staging area (0.53 acres). The Community of the Trinidad Rancheria, defines ‘‘harassment’’ as: existing pier was constructed in 1946 to May 2009’’ and ‘‘Environmental any act of pursuit, torment, or annoyance serve commercial fishing and Assessment for Issuance of an Incidental which (I) Has the potential to injure a marine recreational uses. Since that time, the Harassment Authorization for Cher-Ae mammal or marine mammal stock in the wild creosote-treated wood piles which Heights Indian Community of the [Level A harassment]; or (ii) has the potential support the pier, as well as the wood Trinidad Rancheria’s Trinidad to disturb a marine mammal or marine decking, have deteriorated and are Reconstruction Project in Trinidad, mammal stock in the wild by causing proposed to be replaced by cast-in-steel- California.’’ Documents cited in this disruption of behavioral patterns, including, but not limited to, migration, breathing, shell (CISS) concrete piles and pre-cast notice, may be viewed by appointment, concrete decking, respectively. This will during regular business hours, at the nursing, breeding, feeding, or sheltering [Level B harassment]. improve the safety of the pier. Existing aforementioned address. utilities that will require replacement FOR FURTHER INFORMATION CONTACT: 16 U.S.C. 1362(18). include electrical water, sewer, and Howard Goldstein or Jolie Harrison, Summary of Request phone. Additional dock amenities that Office of Protected Resources, NMFS, will be replaced including lighting, 301–427–8401. On November 3, 2009, NMFS received railing, four hoists, three sheds, a SUPPLEMENTARY INFORMATION: a letter from the Trinidad Rancheria, saltwater intake pipe used by Humboldt requesting an IHA. After addressing State University’s (HSU) Telonicher Background comments from NMFS, a revised IHA Marine Laboratory, and a water quality Section 101(a)(5)(D) of the MMPA (16 application was submitted on July 23, sonde utilized by the Center for U.S.C. 1361(a)(5)(D)) directs the 2010. On May 18, 2011, NMFS Integrative Coastal Observation, Secretary of Commerce (Secretary) to published a notice in the Federal Research, and Education. The allow, upon request, the incidental, but Register (76 FR 28733) disclosing the construction schedule is from August 1, not intentional, taking of marine effects on marine mammals, making 2011, to May 1, 2012, however the pile- mammals for a period of not more than preliminary determinations and driving and removal activities one year by U.S. citizens who engage in including a proposed IHA. The notice potentially resulting in incidental take a specified activity (other than initiated a 30 day public comment of marine mammals will occur from commercial fishing) within a specified period. August 1, 2011, through January 31, geographical region if certain findings The requested IHA would authorize 2012. are made and, if the taking is limited to the take, by Level B (behavioral) harassment, a notice of a proposed harassment only, of small numbers of Background authorization is provided to the public Pacific harbor seals (Phoca vitulina The Trinidad Pier is the northernmost for review. richardsi), California sea lions oceanfront pier in California and has Authorization for the incidental (Zalophus californianus), and Eastern been used for commercial and taking of small numbers of marine Pacific gray whales (Eschrichtius recreational purposes over the last 50 mammals shall be granted if NMFS robustus) incidental to pile-driving and years. Trinidad harbor and pier serve a finds that the taking will have a renovation operations on the Trinidad fleet of commercial winter crab negligible impact on the species or Pier. The Trinidad Pier has served the fishermen and year-round water angling stock(s), and will not have an Trinidad Community for decades and for salmon, and nearshore/finfish unmitigable adverse impact on the continues to be one of the marine species. Trinidad Pier was first built by availability of the species or stock(s) for economic generators for the area. This Bob Hallmark in 1946. Since that time subsistence uses (where relevant). The project will not only address the only minor maintenance activities have authorization must set forth the structural deficiencies of the aged pier, occurred on the pier. Today, Trinidad’s permissible methods of taking, other but will completely remove the economy is based on fishing and means of effecting the least practicable presence of creosote and other wood tourism and the pier supports these impact on the species or stock and its preservatives from Trinidad Bay and activities. The pier also provides habitat, and requirements pertaining to eliminate non-point source run-off with educational opportunities by the mitigation, monitoring and reporting the construction of the new pier. The accommodating HSU’s Telonicher of such takings. NMFS has defined pile-driving and renovation operations Marine Lab’s saltwater intake pipe, and ‘‘negligible impact’’ in 50 CFR 216.103 will take place during August, 2011 to the California Center of Integrated as ‘‘* * * an impact resulting from the January, 2012, in Trinidad, California. Technology’s (CICORE) water quality specified activity that cannot be Additional information on the Trinidad sonde. reasonably expected to, and is not Pier Reconstruction Project is contained Currently, the Trinidad Rancheria reasonably likely to, adversely affect the in the application and Biological plays an important role in the economic species or stock through effects on Assessment (BA), which is available development of the Trinidad area annual rates of recruitment or survival.’’ upon request (see ADDRESSES). through three main business enterprises,

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00017 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47157

one of which is the Seascape Restaurant separated 7.6 m (25 ft) apart shall be broken in the process. Vibratory and the pier. The Cher-Ae Heights used. The decking of the new pier will extraction is a common method for Indian Community of the Trinidad be constructed of pre-cast 6.1 m (20 ft) removing both steel and timber piling. Rancheria is a federally-recognized tribe long concrete sections. The new pier The vibratory hammer is a large composed of descendants of the Yurok, will be 164.6 m (540 ft) long and 7.3 to mechanical device mostly constructed Weott, and Tolowa peoples. In 1906, the 7.9 m (24 to 26 ft) wide, corresponding of steel that is suspended from a crane Trinidad Rancheria was established by to the existing footprint. by a cable. The vibratory hammer is a U.S. congressional enactment, and a A pile bent will be installed at the deployed from the derrick and congressional action authorized the existing elevation of the lower deck to positioned on the top of the pile. The purchase of small tracts of land for provide access to the existing floating pile will be unseated from the sediment landless homeless California Indians. In dock. The existing stairs to the lower by engaging the hammer and slowly 1908, through this Federal authority, 60 deck will be replaced with a ramp that lifting up on the hammer with the aid acres of land was purchased on is ADA compliant. The decking of the of the crane. Once unseated, the crane Trinidad Bay to establish the Trinidad pier will be constructed at an elevation will continue to raise the hammer and Rancheria. In 1917, the Secretary of the of 6.4 m (21 ft) above Mean Lower Low pull the pile from the sediment. When Interior formally approved the Trinidad Water (MLLW). The top of the decking the bottom of the pile reaches the Rancheria as a Federally Recognized will be concrete poured to create a slope mudline, the vibratory hammer will be Tribe. for drainage and to incorporate a pattern disengaged. A choker cable connected to The community began developing in and a color into the concrete surface in the crane will be attached to the pile, the 1950’s. In January, 2000, the order to provide an aesthetically and the pile will be lifted from the water Trinidad Rancheria purchased the pleasing appearance. An open guardrail, and placed upland. This process will be Trinidad Pier, harbor facilities, and the 1.1 m (3.5 ft) in height shall be repeated for the remaining piling. Seascape Restaurant. The Trinidad constructed of tubular galvanized steel Extracted piling will be stored upland, Rancheria leases a total area of 14 acres rail bars (approximately 1.9 cm [3⁄4 in] at the staging area, until the piles are in Trinidad Bay from the City of diameter) uniform in shape throughout transferred for upland disposal. Each Trinidad. The Trinidad Rancheria the length of the pier. Lighting will be such extraction will require currently operates the pier, and upland installed in the decking (and railing in approximately 40 minutes (min) of improvements including a boat launch the landing area) along the length of the vibratory hammer operation, with up to ramp and the Seascape Restaurant. pier and will be focused and directed to five piles extracted per day (a total of Funds for permitting and designs of the minimize lighting of any surfaces other 3.3 hours per day). Operation of the pier were granted to the Trinidad than the pier deck. vibratory hammer is the primary activity Rancheria by the California State Currently there are four hoists on the within the pier demolition group of Coastal Conservancy. pier. Three of the hoists are used to load activities that is likely to affect marine The purpose of the Trinidad Pier and unload crab pots from the pier and mammals by potentially exposing them Reconstruction Project is to correct the the fourth hoist located at the end of the to both in-air (i.e., airborne or sub-aerial) structural deficiencies of the pier and pier is suited to load and unload skiffs. and underwater noise. improve pier utilities and safety for the The hoists are approximately 30 years Douglas fir pilings are prone to benefit of the public, and indirectly old and may have had the Yale motors breaking at the mudline. In some cases, improve the water quality conditions replaced since the time they were removal with a vibratory hammer is not and provide additional habitat for the installed. The hoists shall be re-installed possible because the pile will break biological community in the area of at points corresponding to their current apart due to the vibration. Broken or special biological significance (ASBS). location and their current duties. All damaged piling can be removed by Currently, it is difficult to ensure the design specifications shall conform to wrapping the individual pile with a continued safety of the pier due to the Uniform Building Code. cable and pulling it directly from the excessive deterioration of the creosote- sediment with a crane. If the pile breaks Pier Demolition Methods treated Douglas fir piles and the between the waterline and the mudline pressure treated decking. Removal of the existing pier and it will be removed by water jetting. construction of the new pier shall occur Pier Construction Overview Water jetting would potentially be simultaneously. Construction shall performed by divers working around the Summary plans for the pier and begin from the north (shore) end of the base of the piles and is not expected to staging area are presented in Appendix pier. All pier utilities and structures have the potential to result in incidental A of the IHA application. Pier shall first be removed. Utilities to be take of marine mammals. improvements will replace at a one-to- removed include water, electrical, A floating oil containment boom one ratio, approximately 1,254 m2 power and phone lines, temporary surrounding the work area will be (13,500 ft2) of the pre-cast concrete bathroom, ladders, and pier railing. deployed during creosote-treated timber decking. In addition, the project Structures to be removed include four pile removal. The boom will also collect includes installation of 115 concrete hoists, two wood sheds, HSU’s 20 horse- any floating debris. Oil-absorbent piles (and removal of 205 piles) power (hp) (14.9 kiloWatt [kW]) pump materials will be deployed if a visible including batter and moorage piles (45.7 and saltwater intake pipes, CICORE’s sheen is observed. The boom will cm or 18 inches [in] in diameter), four water quality sonde, and a concrete remain in place until all oily material hoists, standard lights, guardrail, and bench. Then the existing pressure and floating debris has been collected. dock utility pipes including water, treated decking, joists, and bent beams Used oil-absorbent materials will be power, and telephone. A new shall be removed and transported by disposed of at an approved upland stormwater collection system will also truck to the upland staging area for disposal site. The contractor shall also be incorporated into the reconstructed temporary storage. follow Best Management Practices pier design. The new CISS concrete All existing piles located in the (BMPs): NS–14—Material Over Water, piles will be separated at 1.5 m (5 ft) section of pier being worked on (active NS–15—Demolition Adjacent to Water, intervals along 7.6 m (25 ft) long construction area) will then be removed and WM–4—Spill Prevention and concrete bents. A total of 22 bents by vibratory extraction, unless some are Control listed in the California

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00018 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47158 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Stormwater Quality Association to auger the holes and will then be 2,701.5 ft3) would have to be removed (CASQA) Handbook. cleaned and concrete poured using a during pile installation. Many new The existing Douglas-fir piles are tremie to seal the area below the shell. holes will be augered in the location of creosote treated. The depth of creosote The shell will then be dewatered and a existing piles where they overlap. As a penetration into the piles varies from steel rebar cage installed prior to result, less sediment will be required to 0.6 to 5.1 cm (0.25 to 2 in). Creosote is pouring concrete to fill the shell. These be removed than would be required for composed of a mixture of chemicals that steps are described in further detail the construction of a new pier, however, are potentially toxic to fish, other below. the exact location and penetration of the marine organisms, and humans. Pile Excavation—Following old piles is not recorded and will be Polycyclic aromatic hydrocarbons installation of the steel casing, each hole determined during reconstruction (PAH), phenols and cresols are the will be augered to the required pile activities. Therefore, a range of quantity major chemicals in creosote that can depth of 7.6 to 10.7 m (25 to 35 ft) below of material to be removed is specified. cause harmful health effects to marine the mudline. An auger drill shall be Existing holes created by old wood piles biota. The replacement of the creosote used to excavate the sediment and rock removed and that do not overlap with treated piles with CISS concrete piles is from the steel shell. Geotechnical the location of holes augered for the expected to eliminate potential studies (Taber, 2007) indicate that the new piles will collapse and naturally fill contamination of the water column by material encountered in the test borings with adjacent sediment. PAH, phenols and cresols from the can be excavated using typical heavy Most of the sediment excavated is existing treated wood piles. duty foundation drilling equipment. expected to be in the form of cuttings if All removed piles shall be Driving the new piles and augering the the hole is augered and/or drilled at a temporarily stored at the upland staging holes are the primary activities within location of exiting piles. Sediment areas until all demolition activities are the pile installation group of activities removed from the inner core during complete (approximately 6 months). most likely to result in incidental augering shall be mostly dry due to the Following the cessation of demolition harassment of marine mammals by compression created in the core during activities, the creosote treated piles will potentially exposing them to augering. Approximately fifty 50-gallon be transported by the Contractor to underwater and in-air noise. drums will be used to store the cuttings Anderson Landfill in Shasta County. Steel casing member of 1.9 cm (3⁄4 in) and sediment prior to disposal upland. This landfill is approved to accept thickness shall be used to form the CISS The contractor shall implement BMPs construction demolition, wood wastes, concrete foundation columns in WM–3—Stockpile Management, WM– and non-hazardous/non-designated underwater locations. In this technique, 4—Spill Prevention and Control, and sediment. inner and outer casings are partially WM–10—Liquid Waste Management The pressure treated 2x4 in Douglas- imbedded in the ground submerged in listed in the CASQA Handbook (see the fir decking will also be stored at the the water and in concentric relationship handbook for details at: http:// staging area until demolition is with one another. The annulus formed www.cabmphandbooks.com/ complete. The partially pressure treated between the inner and outer casings is decking and railing may be reused and filled with water and cuttings, while the Development.asp). will be kept by the Trinidad Rancheria inner casing is drilled to the required Concrete Seal Installation—A tremie for potential future use. depth, and the sediment is removed (i.e., a steel pipe) will be used to seal the from the core of inner steel casing. bottom 0.9 m (3 ft) of the hole below the Pile Installation Following removal of the core, the outer bottom of the steel shell and above the Design—Two 45.7 cm (18 in) diameter casing is left in place as the new pile ground. Before the tremie seal is poured, battered piles, which are designed to shell. the inside walls of the pile will be resist lateral load, will be located on The sediment and cuttings excavated cleaned by brushing or using a similar each side of the pier at 12:1 slopes. shall be temporarily stockpiled in 50 method of removing any adhering soil Three vertical piles, which are designed gallon drums (or another authorized or debris in order to improve the to support 50 tons of vertical loads, will sealed waterproof container) at the effectiveness of the seal. A ‘‘cleaning be located between the battered piles staging area until all excavations are bucket’’ or similar apparatus will be separated 1.5 m (5 ft) apart. complete and then transferred for used to clean the bottom of the Overview—New piles will be installed upland disposal at the Anderson excavation of loose or disrupted initially from shore and then, as Landfill or another approved upland material. construction proceeds, from the sediment disposal site. The tremie is a steel pipe long enough reconstructed dock. Following removal The existing piles extend to to pass through the water to the required of each existing pile, steel casings will approximately 6.1 m (20 ft) below the depth of placement. The pipe is initially be vibrated (using a vibratory hammer) mudline. Each one of the existing 0.3 m plugged until placed at the bottom of to a depth of approximately 0.8 m (2.5 (1 ft) diameter pile has displaced 0.4 m3 the holes in order to exclude water and ft) above the top elevation of the (15.7 ft3) of sediment. There are to retain the concrete, which will be proposed pile (7.6 to 10.7 m [25 to 35 approximately 205 wood piles to be poured. The plug is then forced out and ft] below the mudline). The steel shell removed. The total amount of sediment concrete flows out of the pipe to its of 1.9 cm (3⁄4 in) thickness shall extend displaced by the existing piles is place in the form without passing from above the water surface to below approximately 91.7 m3 (3,238.4 ft3). through the water column. Concrete is the upper layer of sediment, which Each of the proposed CISS piles requires supplied at the top of the pipe at a rate consists of sand, into the harder the displacement of approximately 1.5 sufficient to keep the pipe continually sediment, which consists mostly of m3 (53 ft3) of sediment. There are 115 filled. The flow of concrete in the pipe weathered shale and sandstone. The CISS piles to install. A total of is controlled by adjusting the depth of steel shell will be coated with polymer approximately 172 m3 (6,074 ft3) of embedment of the lower end of the pipe to protect the casings from corrosion. sediment would have to be removed in in the deposited concrete. The upper The steel shell will be coated with order to auger 115 holes to a depth of end may have a funnel shape or a polymer to protect the casings from 9.1 m (30 ft) below the mudline. It is hopper, which facilitates feeding corrosion. The steel shell shall be used estimated that 7.6 to 76.5 m3 (268.4 to concrete to the tremie. Each concrete

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00019 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47159

seal is expected to cure within 24 to 48 Waste Management, as listed in the matching the color of the railing. In hours. CASQA Handbook to prevent discharge addition, on the south side of the pier, Dewatering Methodology—After the of liquid or solid waste. lighting will be installed in the railing tremie seal has been poured, the water to provide lighting for the working area Pier Deck Construction will be pumped out of the steel shells, on the deck of the pier. which will act as a cofferdam. Pumping Following the installation of the Fish cleaning does not occur at the within the excavation at the various concrete piles, pre-cast concrete bent pier. This activity was formerly pursued footings may be required to maintain a caps measuring 7.6m (25 ft)-long shall by recreational users and was dewatered work area. be installed on top of each row of discontinued in 2006 due to water The contractor shall test the pH of the pilings. The concrete bents act to quality concerns. water in each casing one day following distribute the load between the piles pouring of the tremie seal to insure that and support the pier. Drainage the pH of the water did not change from Pre-cast 6.1m (20 ft)-long concrete There is currently no runoff collection the ambient pH. The water shall then be sections shall be used for the decking. system on the pier. Runoff drains from pumped into 50-gallon drums and An additional layer of concrete shall be the existing pier directly into the ASBS. transported to the staging area for poured following installation of the A storm water outfall for the City of discharge through percolation to precast sections. The layer of concrete Trinidad is located near the base of the eliminate solids. Should the pH of the will allow the decking of the pier to be pier. water change from ambient pH, then the sloped to the west for drainage purposes The pier decking shall be sloped to contractor shall haul the water to the and to create an aesthetically pleasing the west in order to direct runoff from Eureka Wastewater Treatment Plant for decking. The surface of the decking will the pier to the stormwater collection treatment prior to discharge. The be colored and contain an earth tone pipe. The runoff shall be routed along contractor is expected to dewater a pattern to match the surrounding the west side of the pier and conveyed volume of approximately 450 gallons environment. by gravity to a new upland manhole and (1,720 L) each day during pile storm chamber containing treatment Utilities installation. For the installation of 115 media. All stormwater will be infiltrated piles, approximately 49,500 gallons Utilities located on the pier will within the storm chamber; there will be (197,800 L) will be dewatered and require location during construction and no discharge from the system. See discharged at the appropriate location at replacement following construction of Appendix C, drawings C–5 to C–8 of the the staging area. Percolation rates will the pier footings and decking. Utilities IHA application, for details of the be verified prior to discharge of the include: conveyance and treatment system. The ocean water at the designated location at Power: A 2 in PG&E power line that pier-deck construction, utility the staging area, but are not expected to is currently attached to the west side of replacement, and drainage be prohibitive due to the sandy texture the pier and PG&E electrical boxes improvements are anticipated to result of the soil. The Contractor shall located along the west side of the pier. in discountable effects to marine implement BMP WM–10 Liquid Waste Sewer: Currently there are no sewer mammals. Management as listed in the CASQA pipes on the pier. Visitors to the pier are Handbook. Liquid waste management served by a temporary restroom located BMPs procedures and practices are used to on the south side of the pier. No direct Pier Demolition Methods: prevent discharge of pollutants to the sewer discharge is allowed in the ASBS. • Waters shall be protected from storm drain system or to watercourses as New utilities installed include water, incidental discharge of debris by a result of the creation, collection, and phone, and electrical. New pier utilities providing a protective cover directly disposal of non-hazardous liquid will be constructed along the east and under the pier and above the water to wastes. WM–10 provides procedures for west side of the pier and will be capture any incidental loss of containing liquid waste, capturing enclosed within concrete utility demolition or construction debris. liquid waste, disposing liquid waste, trenches. Water pipes shall be routed • A floating oil containment boom and inspection and maintenance. along both sides of the pier to several surrounding the work area will be used Completion—Following dewatering of locations along the pier. Phone lines during the creosote-treated timber pile the steel shells, steel rebar cages shall be shall be routed along the west side of removal. The boom will also collect any inserted into each shell. Ready-mix the pier. All electrical switches will be floating debris. Oil-absorbent materials concrete placed into the drilled piers located in one central box towards the will be employed if a visible sheen is shall be conveyed in a manner to west end of the pier by the loading and observed. The boom will remain in prevent separation or loss of materials. unloading landings location. place until all oily material and floating The cement-mixer truck containing the Lighting installed along the pier shall debris has been collected and sheens concrete shall be located on land be designed to improve visibility and have dissipated. Used oil-absorbent adjacent to the north end of the pier. safety. The lighting will be embedded in materials will be disposed of at an The concrete shall be pumped to the the decking and railing of the pier to approved upland disposal site. borings through a pipe (at least 0.9 cm minimize light pollution from the pier. • All removed piles shall be [3⁄4 in] thick) that will span the length Lighting shall be designed to minimize temporarily stored at the upland staging of the pier. When pouring concrete into light pollution by preventing the light areas until all demolition activities are the hole, in no case shall the concrete from going beyond the horizontal plane complete (approximately 6 months). be allowed to freefall more than 1.5 m at which the fixture is directed. • Following the cessation of (5 ft). Poured concrete will be dry Currently, there are lighting poles on the demolition activities, the creosote within at least 24 hours and completely pier. The proposed lighting on the pier treated piles will be transported by the cured within 30 days. will be embedded on the west and east Contractor to an upland landfill A concrete washout station shall be side of the decking separated approved to accept such materials. located in the staging area at the approximately 7.6 m (25 ft) throughout • The pressure treated 2 x 4 in designated location. The contractor the length of the pier. The lighting Douglas fir decking will also be stored shall implement BMP, WM–8—Concrete fixtures will have cages for protection in the staging area until demolition is

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00020 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47160 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

complete. The partially pressure treated capture any incidental loss of http://www.nmfs.noaa.gov/pr/permits/ decking and railing may be reused and demolition or construction debris. incidental.htm#applications. will be kept by the Trinidad Rancheria Utilities: • Dates, Duration, and Specific for further use. Lighting will be embedded in the Geographic Area • The contractor shall also follow decking and railing of the pier to BMPs: NS–14—Material Over Water, minimize light pollution from the pier. The Trinidad Pier Reconstruction NS–15—Demolition adjacent to Water, Lighting shall be designed to minimize Project is located in the city of Trinidad, and WM–4—Spill Prevention and light pollution by preventing the light California, Humboldt County, at Control listed in the CASQA Handbook. Township 8N, Range 1W, Section 26 from going beyond the horizontal plain ° ° Pile Installation: at which the fixture is directed so the (41.05597 North, 124.14741 West) (see • The sediment and cuttings light is directed upwards. Figure 2–1 of the BA). The construction excavated shall be temporarily Drainage: schedule is from August 1, 2011 to May stockpiled in 50 gallon (189 L) drums • The pier decking shall be sloped to 1, 2012, with noise and activity effects (or another authorized sealed the west in order to direct runoff from requiring an IHA, occurring from waterproof container) at the staging area the pier to the stormwater collection August 1, 2011 through January 31, until all excavations are complete and pipe. The runoff shall be routed along 2012. Trinidad Bay is a commercial port then transferred for upland disposal at the west side of the pier and conveyed located between Humboldt Bay and the Anderson Landfill or another by gravity to a new upland manhole and Crescent City. The bay contains approved upland sediment disposal site. storm chamber containing treatment numerous vessel moorings which • The contractor shall implement media. Drainage from the storm include permanent commercial vessel BMPs WM–3—Stockpile Management, chamber shall not be conveyed to anchors as well as 100 moorings that are WM–4—Spill Prevention and Control, Trinidad Bay, but will entirely be placed for recreational vessel owners and WM–10—Liquid Waste infiltrated within the storm chamber. (Donahue, 2007). The uplands have Management listed in the CASQA See Appendix A, drawings C–5 to C–8, residential, commercial and recreational Handbook. for details. land use classifications. The Trinidad • The contractor shall test the pH of Construction Timing and Sequencing: • Pier parcel was owned by the State of the water in each casing one day Noise-generating construction California, but was granted to the City following pouring of the tremie seal to activities, including augering, pile of Trinidad which leases the tidelands insure that the pH of the water did not removal, pile placement, and concrete to the Cher-Ae Heights Indian change by more than 0.2 units from the pumping, will only be allowed from 7 Community of the Trinidad Rancheria. ambient pH. The water shall then be a.m. to 7 p.m. These hours shall be The parcels to be used for the staging pumped into 50-gallon drums and further restricted as necessary in order area are owned by Trinidad Rancheria, transported to the staging areas for for Protected Species Observers (PSOs) the City of Trinidad, and the U.S. Coast discharge through percolation to to perform required observations. Guard. eliminate solids. Should the pH of the Project Benefits: Trinidad Bay is a shallow, open bay water change from ambient pH, then the The existing pier has pole lighting about 0.8 km (0.5 mi) deep (in the contractor shall haul the water to the that illuminates the water surface; the southwest-northeast direction) and 1.6 Eureka Wastewater Treatment Plant for proposed pier has lighting designed to km (1 mi) wide (in the northwest- treatment prior to discharge. avoid such illumination. The existing southeast direction). Figure 1 of the IHA • The contractor shall implement pier has dark wood and over 200 piles. application shows the whole bay. BMP WM–10 Liquid Waste Management The proposed pier, with 205 piles to be Generally the bay shelves at a moderate as listed in the CASQA Handbook. removed and 115 piles to be installed slope to about 9.1 m (30 ft) depth and Liquid waste management procedures and a white concrete construction, will then flattens out, with most of the outer and practices are used to prevent result in less shading of nearshore bay between 9.1 to 15.2 m (30 to 50 ft) discharge of pollutants to the storm habitat. The project may have benefits to deep. Substrates in the bay include rock, drain system or to watercourses as a environmental resources other than cobble, gravel and sand. The floor of the result of the creation, collection, and marine mammals. This notice describes bay is irregular with some areas of disposal of non-hazardous liquid in detail BMPs that will be implemented submerged rock. The project area wastes. WM–10 provides procedures for for the project. The BMPs are focused comprises the 0.31 acre pier over marine containing liquid waste, capturing almost exclusively on protecting water habitats and a staging area (the gravel liquid waste, disposing liquid waste, quality, and while they may have parking lot located west of the pier) and inspection and maintenance. ancillary benefits to some marine covering 0.53 acres of upland area. • A concrete washout station shall be resources such as Essential Fish Habitat located in the staging area at the (EFH), they are not intended to serve as Construction Timing and Sequencing designated location. The contractor monitoring and mitigation measures for The project is expected to be shall implement BMP, WM–8—Concrete adverse effects to marine mammals. The completed within nine months Waste Management, as listed in the only exception might be the ability to (approximately six months of loud CASQA Handbook to prevent discharge further modify noise timing restrictions noise-producing activities). of liquid or solid waste. to allow PSOs to perform their duties. Reconstruction of the pier is planned to Pier Construction: Additional details regarding the pile- commence on August 1, 2011 and • No concrete washing or water from driving and renovation operations for terminate on May 1, 2012. Excluding concrete will be allowed to flow into the the Trinidad Pier Reconstruction Project weekends and holidays, a total of 217 ASBS and no concrete will be poured can be found in the Trinidad working days will be available for work within flowing water. Rancheria’s IHA application and BA, as during this period. During the winter • Waters shall be protected from well as the U.S. Army Corps of months (November to March) severe incidental discharge of debris by Engineers (ACOE) and NMFS EA. The weather conditions are expected to providing a protective cover directly IHA application, BA, and ACOE and occur periodically at the project site. under the pier and above the water to NMFS EA can also be found online at: The contractor may have to halt the

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00021 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47161

work during pile installation due to lands and aquatic areas within the low level of environmental damping strong winds, large swells, and/or heavy project area, including the staging area. due to non-forest vegetation, structures, precipitation. Construction during the The project would also directly affect topography, etc. and corresponds to the remainder of the year should not be 7.9 m (26 ft) of the Trinidad Bay rate recommended by WSDOT (2006) impeded by large swells, but may be shoreline. for terrestrial in-air in non-forest halted due to strong winds or In-air (i.e., sub-aerial) and underwater environments. The 59 dB and 50 dB precipitation; however, Trinidad Harbor sound effects would be the most estimates are based on EPA (1971), a is a sheltered area and does not often laterally extensive effects of the action standard source of data on typical experience severe weather that would and thus demarcate the limits of the background sound levels (in dBA) for preclude the work. The contractor will action area. Assuming that underwater various environments. These typical work five days per week from 7 a.m. to sound attenuates at a rate of -4.5 dB re levels were revised upwards by 7 p.m. Should severe weather 1 μPa (rms) for each doubling of approximately 3 dB because the dBA conditions cause delays in the distance, underwater sound from pile- curve down-weights sound intensity at construction schedule, the contractor driving (detailed in Section 6 of the BA) the lower frequencies typical of will work up to seven days per week as would elevate noise above 120 dB (rms) vibratory pile-driving noise, which is needed to ensure completion by May 1, up to 800 m (2,625 ft) (the Port of the principal source of noise considered μ 2012. Anchorage measured 168 dB re 1 Pa in demarcation of an action area for the Removal of all existing piles and [rms] at a distance of 20 m from a pile, action. Thus the 59 dB and 50 dB values decking and construction of the new application of the practical spreading represent unweighted estimates of pier will occur simultaneously. The model with 4.5 dB attenuation for background sound levels. existing decking and piles will be doubling of distance yields 120 dB [rms] The IHA application and BA provide removed and new piles installed from at 800 m) seaward in all areas on a line- a detailed explanation of the Trinidad the reconstructed pier. Pile bents will be of-sight to the pier (Illingworth & Pier Reconstruction Project location as separated 7.6 m (25 ft) apart. Following Rodkin, 2008). The rationale for use of well as project implementation. the installation of two successive pile 120 dB (rms) as a metric is detailed in NMFS outlined the project in a bents, a new precast concrete deck Section 6.6.1 of the BA, but also has a previous notice for the proposed IHA section shall be installed. The contractor practical value because 120 dB (rms) is (76 FR 28733, May 18, 2011). The shall continue in this manner from the the lowest threshold currently used to activities to be conducted have not north end (shore) to south end (water detect underwater sound effects to any changed between the proposed IHA terminus) of the existing pier. of the animals discussed in this notice and this final notice announcing The contractor is expected to spend analysis. Actual ambient underwater the issuance of the IHA. For a more approximately six months (August sound levels are probably quite variable detailed description of the authorized through January) on pile removal and in response to sound sources such as action, including reconstruction installation and the remaining three wave action and fishing vessel traffic. operations and acoustic source months (February through April) on The assumptions regarding in-air and specifications, the reader should refer to deck and utilities reconstruction. It is underwater noise in the IHA the proposed IHA notice (76 FR 28733, estimated that each boring can be lined application, BA, and in this notice are May 18, 2011), the IHA application and with a pile and excavated within 6 to 8 generally regarded as extremely associated documents referenced above hours. Pouring of the concrete seals is conservative. expected to take approximately two In-air (or sub-aerial) sound would be this section. hours for each pile. The contractor is generated by equipment used during Comments and Responses expected to remove an existing pile and construction; the loudest source of such install one new steel shell and pour a sound would be vibratory pile-driving, A notice of proposed IHA was concrete seal each day, with a total of which generates a sound intensity of published in the Federal Register on six to eight hours required for the approximately 104 dB at 15.2 m (50 ft) May 18, 2011 (76 FR 28733). During the process (i.e., 115 piles to be placed [one (FHWA, 2006). Assuming an ambient 30-day public comment period, NMFS per day] during 115 days of work or 23 background noise level of 59 dB, typical received comments from the Marine weeks of 5 days each). The final pour of of residential neighborhoods, and a Mammal Commission (Commission) the concrete piles is expected to take sound attenuation rate of 7.5 dB (rms) only. The Commission’s comments are approximately two hours to fill the steel for each doubling of distance, the action online at: http://www.nmfs.noaa.gov/pr/ shells and is expected to cure within area for aerial sound would extend permits/incidental.htm. Following are one week. 975.4 m (3,200 ft) in an unobstructed the Commission’s comments and It is expected that reconstruction of landward direction from the dock. The NMFS’s responses: one row of piles and bents will take one action area would extend farther in a Comment 1: The Commission week. Pile and bents will be installed seaward direction, because aerial sound recommends that the NMFS defer over a discontinuous period of attenuates with distance more slowly issuance of the IHA until it has required approximately 23 weeks. A new pre-cast over water and also because ambient the applicant to develop a more realistic concrete section of decking will be noise levels are potentially quieter in estimate of the number of harbor seal installed following the installation of that direction. Assuming an attenuation takes that: two successive rows of piles and rate of 6 dB (rms) for each doubling of (1) Accounts for all harbor seal haul- associated bents. The last 3 months will distance and an ambient marine noise out sites in the area; be used for pouring of the top layer of background of 50 dB, the action area for (2) Corrects seal abundance estimates the decking and utilities construction. above-water effects would extend 7.7 to account for seals in the water during km (4.8 mi) seaward from the pier. the counts; Action Area The seaward attenuation rate assumes (3) Incorporates a more realistic The action area is defined as all areas no environmental damping or assessment of the portion of seals that directly or indirectly affected by the attenuation and thus is produced by a will enter the water in the Level B proposed action. Direct effects of the simple inversion square law. The harassment zone during the proposed action are potentially detectable in all landward attenuation rate assumes a construction operations;

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47162 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

(4) Includes a reasoned basis for Lowry et al., 2001) and the seasonal use correction factor suggested by the estimating takes that occur from in-air of certain haul-out sites for pupping and Commission of 1.54 is not significantly construction sound; and molting (Herder, 1986; Thompson et al., different from that determined by Lowry (5) Is based on a realistic estimate of 1989). Based on the fact that the et al. (2008) and may also be used; this the time required to remove 205 wood Palmer’s Point and Trinidad Bay haul- correction factor is therefore used in the piles. outs are close to each other (9 km or 5.6 estimate of potential harbor seal take Response: (1) NMFS and Trinidad mi) compared to the foraging areas used presented below in this document. Rancheria believe that the action by harbor seals, and that the Patrick’s (3) The Commission states that described does account for all harbor Point area is home to approximately Trinidad Rancheria’s action will seal haul-out sites in the action area. 1,000 harbor seals (Dawn Goley, pers. incidentally take marine mammals The Commission indicates that they comm., March 23, 2009), a far larger many kilometers out to sea, where the believe that harbor seals hauling out grouping than the one found at Trinidad underwater sound generated by the within 50 km (31.1 mi) of the site are Bay, and given that observations of renovation operations would only likely to be present in the action area. harbor seals at Trinidad Bay go through slightly exceed ambient (background) Goley et al. (2007) state, in literature strong seasonal fluctuations, it is not noise levels and would be far less review, that the seals are year-round appropriate to dismiss a hypothesis that audible than other episodic residents; that they are non-migratory, there is interchange between the two anthropogenic sound sources such as dispersing from a centralized location to areas. If the seals do seasonally vacate the passage of deep-draft vessels. NMFS forage; and that they exhibit high site Trinidad Bay for alternative foraging and the Trinidad Rancheria regard the fidelity, utilizing one to two haul-out grounds, then Patrick’s Point is their potential for take of animals outside of sites within their range and rarely most likely alternative haul-out. Trinidad Bay as unlikely due to sound traveling more than 25 to 50 km (15.5 It does not follow that the Patrick’s attenuation, other background sound to 31.1 mi) from these haul-outs. If it is Point seals vacate that area to forage in sources (e.g., waves, wind, rain, etc.), not shown that these seals use any other Trinidad Bay, as shown by the fact that and resident harbor seal habituation to haul-outs, then there is no other logical seal numbers in Trinidad Bay decline the existing marine acoustic conclusion that that these seals must be during the winter; if the area were environment. Trinidad Bay residents. The increasingly used by Patrick’s Point Analysis regarding the effects of Commission’s proposition that seals seals during the winter months, then underwater sound was presented in the from elsewhere would enter Trinidad counts of seals at Trinidad Bay would revised IHA application dated July 23, Bay, which already has a large resident increase. They likely do not. Goley et al. 2010, and presents figures indicating the seal population, to forage, is interesting (2007) state that harbor seals ‘‘are area of potential effect for Level B but not corroborated by any data. typically less abundant during the harassment (see Table 4 ‘‘Noise Moreover, even if true, it is not apparent winter months as seals tend to spend generating activities’’ and ‘‘Potential for that it affects the analyses in this more time foraging at sea during this Biological Effects’’ section below [Table document, since there is no basis for time.’’ In this context ‘‘at sea’’ and 4 of the IHA application]). Based on this inference about the frequency or ‘‘offshore’’ are interpreted as equivalent analysis and the foregoing discussion of duration of such activity. and neither term is numerical. The seals seal use of Trinidad Bay, it is Also, the assessment is based upon a are not in Trinidad Bay and are anticipated that behavioral effects could personal communication with Dawn therefore offshore. result to all seals that were in the water Goley and Trinidad Rancheria (2) The Commission cites a correction within Trinidad Bay during the portion representatives, specifically, a telephone factor of 1.54 for harbor seals at sea, and of the day when in-water noise was conversation on March 23, 2009, when contends that this requires a 50% being generated by pile-removal, she observed that the Humboldt Bay increase in the estimate of incident take. augering, or pile-driving. As noted seals show high site fidelity for sandy NMFS and the Trinidad Rancheria earlier, the average number of seals beach haul-outs, whereas the Trinidad addressed the use of this correction observed at the Trinidad Bay haul-out Bay and Patrick’s Point seals have factor in the notice of proposed IHA in during the time when in-water noise corresponding fidelity for rocky haul- response to previous Commission would be produced is 36.5 seals, which outs. Data supporting this inference was comments. with a correction factor of 1.54 indicates not discussed. Note that the notice of proposed IHA a Trinidad seal population at that time Dawn Goley has stated that it is does not state that harbor seals spend of 56.2 or approximately 57 individuals, unknown whether there is interchange 10% of their time in the water, but with these seals spending between the Patrick’s Point and states that they spend 10% of their time approximately 35% (1¥[36.5/56.2]) of Trinidad Bay seals. Data that would within the radius of effect. The radius their time in the water. allow a conclusive determination on of effect is only a small fraction of As noted above, Goley et al. (2007) this point, such as genetic or radio/ Trinidad Bay, and only a fraction of the state that harbor seals ‘‘are typically less acoustic tracking studies, have not been rocks that comprise the Indian Beach abundant during the winter months as gathered. However, Goley et al. (2007) haul-out of Goley et al. (2007) are within seals tend to spend more time foraging do state (page 10) that ‘‘harbor seals that radius of effect. at sea during this time,’’ therefore, only exhibit high site fidelity, utilizing one to Lowry et al. (2008) present a a fraction of the seals would actually be two haul-out sites within their range discussion of correction factors. They present in Trinidad Bay at the time of (Sullivan 1980, Pitcher et al., 1981; used a correction factor of 1.65, noise produced by the Trinidad Pier Stewart et al., 1994), rarely traveling indicating that about 40% of seals were Renovation Project. No direct more than 25 to 50 km from these haul- hauled-out. They also note that their measurements are available that would outs (Brown and Mate, 1983; Suryan study was performed at a time when the allow estimation of that fraction, and Harvey, 1998). Movements between largest possible fraction of seals would although it is known that harbor seal and the use of alternate haul-out sites likely be hauled-out—during the molt, abundance in Trinidad Bay declines has been attributed to the use of and at local low tides. The proposed from a summer peak of 67 harbor seals alternative foraging areas near their new work, however, would be performed in July to a winter minimum of 25 in haul-out site (Thompson et al., 1996b; after the molt had concluded. The November (Goley et al., 2007). As

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00023 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47163

further noted above, harbor seals exhibit to the pier, but there are anecdotal and then re-evaluated the proposed high site fidelity, utilizing one to two reports of harbor seals surfacing near mitigation and monitoring measures to haul-out sites within their range boats alongside the pier, and it is thus ensure that the appropriate areas are (Sullivan, 1980; Pitcher et al., 1981; possible that occasional exposure could adequately monitored. Stewart et al., 1994), rarely traveling occur. Such an event is unlikely because Response: NMFS and Trinidad more than 25 to 50 km from these haul- anecdotal reports of harbor seals at the Rancheria revised and addressed the outs (Brown and Mate, 1983; Suryan pier are associated with seals seeking Commission’s concerns regarding and Harvey, 1998). If it is assumed that food from recreational and commercial estimates of distances to various in- winter foraging Trinidad Bay harbor fishing boats, which would no longer water and in-air Level A and Level B seals travel up to 25 km from their haul- use the pier during reconstruction harassment thresholds for all three types out, then their foraging area covers activities; thus the pier would no longer of sound-producing activities planned approximately 982 km2 (379.2 mi2) (a function as a foraging resource (during as part of the Trinidad Pier half-circle with a 25 km radius), construction, fishing boats could unload Reconstruction Project during draft whereas the area of Trinidad Bay is at the boat ramp, which is located review by the Commission prior to the approximately 5 km2 (1.9 mi2). This several hundred feet from the pier and notice of proposed IHA being published would suggest that fewer than 1% of the is blocked from the construction area by in the Federal Register. NMFS and seals in the water at any given time an intervening headland). It is Trinidad Rancheria revised the analysis would be found in Trinidad Bay. This conservatively estimated that seal for the potential of incidental take in is likely an underestimate, as seals exposure to in-air sound in excess of the accordance with the Commission’s bound to and from the haul-out would Level B harassment threshold could recommendations for a harbor seal necessarily have to spend some time in occur during up to 20% of the in-air correction factor, which is discussed in passage through the waters of Trinidad noise producing events, or a total of 87 Comment 2. The changes are Bay. However, it does suggest that no events during the period of numerically minor, and NMFS and more than a very few seals are likely to construction. Based on this information, Trinidad Rancheria do not find be in the waters of Trinidad Bay at any NMFS has determined that 174 harbor evidence that significant changes are time when underwater noise is being seals may be taken by Level B necessary to the planned monitoring produced from renovation activities. It harassment from exposure to in-air and reporting plan. is conservatively estimated that one seal sounds produced during the renovation Comment 4: The Commission may be exposed during the course of operations. This number would be recommends that the NMFS defer any individual pile-removal, augering, verified by the monitoring data. issuance of the IHA until it has required or pile-driving event. During the total of (5) The Trinidad Rancheria states (via the applicant to verify the associated Level A and B harassment zones 164 days when underwater noise would the construction contractor) that 58 through calibrated in-situ sound be produced from any one of these three construction days would be adequate to measurements and to adjust those zones activities, there would be 435 noise- remove 205 wood piles, a removal rate of approximately 3.5 piles per day, as as appropriate. producing events, or an average of 435/ Response: Trinidad Rancheria’s 164 = 2.65 events per day, resulting in stated in correspondence and the Trinidad Rancheria’s IHA application. current monitoring study incorporates potential exposure of 435 harbor seals this recommendation with regard to over the duration of the planned There is no reason to believe that this is not feasible. underwater sound. The expected activities. Comment 2: The Commission threshold for Level A harassment and (4) The estimation of incidental takes recommends that the NMFS defer associated exclusion zones (EZs) for that would occur as a result of in-air issuance of the IHA until it has pinnipeds (i.e., 190 dB) are 0.9 m (3 ft), sound has been analyzed in detail in the reviewed estimates of numbers of takes 0 m (0 ft), and 0 m (0 ft) for pile-driving, IHA application and correspondence for California sea lions and gray whales augering, and pile-removal, with the Trinidad Rancheria. Based on during the proposed activities. respectively. The expected threshold for in-air noise measurements taken during Response: NMFS and Trinidad Level A harassment and associated EZs vibratory pile-driving as reported by Rancheria revised and addressed the for cetaceans (i.e., 180 dB) are 4.9 m (16 Laughlin (2010), in-air noise production Commission’s concerns regarding ft), 0.3 m (1 ft), and 21.6 m (71 ft) for during pile driving at the Trinidad Pier estimates of numbers of takes for harbor pile-driving, augering, and pile-removal, will likely be between 87.5 and 96.5 dB seals, California sea lions, and gray respectively. NMFS has not determined re 20 μPa (unweighted). For purposes of whales incidental to the specified Level A harassment thresholds for the analysis presented below, it is activities during review by the marine mammals for in-air noise; assumed that in-air noise from vibratory Commission prior to the notice of however, Southall et al. (2007) pile-driving would produce 96 dB (rms) proposed IHA being published in the recommends 149 dB re 20 μPa (peak) (unweighted). This noise would be Federal Register. NMFS and Trinidad (flat) as the potential threshold for produced during both pile-removal and Rancheria believe that the take injury from in-air noise for all pile-placement activities. The augering estimation analysis in the IHA is pinnipeds. Operation of a vibratory pile- equipment produces slightly less noise accurate and likely overestimates the driver would produce in-air sound at a level of 92 dB (rms) (unweighted). potential for take in some cases as intensity of 96 dBA at 50 ft. This is the Assuming an attenuation rate of 6 dB necessary to account for uncertainty. in-air sound level for both pile-removal per doubling of distance, this indicates Accordingly, further review of the take and pile-installation. Operation of the that sound from in-air pile-removal or estimation is unnecessary. auger would produce in-air sound of 92 pile-placement would attenuate to the Comment 3: The Commission dBA at 15.2 m (50 ft). Using the Level B threshold for harbor seals (90 recommends that the NMFS defer attenuation rate of 6 dB for each dB) at a distance of 30.5 m (100 ft). issuance of the IHA until it has re- doubling of distance, the loudest noise Sound from augering would attenuate to estimated the distances to various in- from reconstruction operations (i.e., the Level B harassment threshold at a water and in-air Level A and B pile-driving) would be 136 dBA at a distance of approximately 18.3 m (60 ft). harassment thresholds for all three types distance of 0.3 m (10 inches), so it is not There are no haul-outs located this close of proposed sound-producing activities physically possible for a pinniped to be

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00024 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47164 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

exposed to a level of sound that could Comment 7: The Commission be found in small numbers within the be potentially injurious, especially since recommends that the NMFS defer activity area, but authorization for a shut-down would occur if any issuance of the IHA until it has required ‘‘take’’ by incidental harassment is not pinniped approaches or enters the in- the applicant to use 30 min as the requested for Steller sea lions and water EZ for Level A harassment. Also, appropriate clearance time for gray transient killer whales due to their rarity the applicant has agreed to perform in- whales before ramp-up activities may and the feasibility of avoiding impacts air monitoring to verify the Level B commence and to use hydrophones for to these species by pausing work in the harassment zone for in-air sound and is acoustic detection of gray whales. event that they are detected, as detailed required by NMFS in the IHA. Response: While passive acoustic in the Marine Mammal Monitoring Plan. Comment 5: The Commission monitoring is continuously evolving, NMFS, based on the best available recommends that the NMFS defer the technology for underwater detection science, agrees that transient killer issuance of the IHA until it has required of marine mammals using hydrophones whales and Steller sea lions are not that shut-down procedures be is largely experimental and is likely to be present in the action area prohibitively expensive in the context of established for both species of during implementation of the specified pinnipeds. the capital investment and funding activities and are thus unlikely to be Response: Trinidad Rancheria will mechanisms available for this project. exposed to the effects of the specified implement shut-down procedures for The Trinidad Rancheria is however able underwater noise to avoid the potential to commit to a 30 minute clearance time activities. NMFS does not expect for Level A harassment (injury) for all for gray whales, and NMFS has made incidental take of these marine mammal species of marine mammals during the this a requirement in the IHA. species and therefore has not authorized Trinidad Pier Reconstruction Project. Comment 8: The Commission take of these two species in the IHA. NMFS has included a requirement to recommends that the NMFS defer The potential presence of Steller sea this effect in the IHA. Because in-air issuance of the IHA until it has lions is detailed in Section 5.6 of the sound levels would not reach the injury addressed the deficiencies identified by Trinidad Rancheria’s BA. The potential threshold noted by Southall et al. the Commission and publish a new presence of gray whales, killer whales, (2007), there would be no need to have proposed IHA in the Federal Register harbor seals, and California sea lions is a requirement for shut-down when with the corrected information and detailed in Appendix C of the IHA pinnipeds are hauled-out. provide for an additional 30 day application (see ADDRESSES). Comment 6: The Commission comment period. A variety of other marine mammals recommends that the NMFS defer Response: NMFS and the Trinidad have on occasion been reported from the issuance of the IHA until it has Rancheria have addressed all issues coastal waters of northern California. provided further analysis and identified and recommended by the These include bottlenose dolphins, justification regarding the efficacy of Commission. NMFS believes that harbor porpoises, northern elephant visual monitoring for the proposed publishing a new proposed IHA in the seals, northern fur seals, and sea otters. activities and the manner in which the Federal Register with the corrected However, none of these species have number of takes can be determined information and providing an additional been reported to occur in the action accurately. 30 day public comment period is area, and in particular none were Response: NMFS believes that the unnecessary, as it would delay mentioned by the regional NMFS planned visual monitoring program will scheduled pile-driving and renovation specialist in the identification of species be sufficient to detect, with reasonable operations associated with the Trinidad certainty, the majority of marine Pier Reconstruction Project. It is to be addressed in the IHA application. mammals within or entering identified essential for the Trinidad Rancheria that The sea otter is managed under the EZs. This monitoring, along with the construction on the pier begins this jurisdiction of the U.S. Fish and required mitigation measures, will August, as failure to meet this deadline Wildlife Service (USFWS) and is not result in the least practicable impact on would result in loss of the Federal considered further in this analysis. The the affected species or stocks and will grants supporting this essential tribe USFWS has informed the ACOE that a result in a negligible impact on the infrastructure project and would further section 7 consultation under the ESA is affected species or stocks of marine endanger public safety and welfare by not necessary for any of their mammals. Also, NMFS expects some requiring continuing use of the existing jurisdictional species, including sea animals to avoid areas around the aged pier structure for an indefinite otters. Table 1 presents information on reconstruction operations ensonified at period of time. the cetacean and pinnipeds species, the level of the EZ. their habitat, and conservation status in The effectiveness of the monitoring Description of Marine Mammals and the general region of the project area. and mitigation measures is science- Habitat Affected in the Activity Area The notice of proposed IHA (76 FR based and is based on the requirement One cetacean species and two species 28733, May 18, 2011) contained a that monitoring and mitigation of pinnipeds are known to or could complete description on the status, measures be ‘‘practicable.’’ NMFS occur in the Trinidad Bay action area abundance, distribution, and seasonal believes that the framework for visual and off the Pacific coastline (see Table distribution of Pacific harbor seals, monitoring will be effective at spotting 1 below). Eastern Pacific gray whales, California sea lions, Eastern Pacific gray the species for which take is requested California sea lions, and Pacific harbor whales, Steller sea lions, and killer within the immediate action area where seals are likely to be found within the whales. That information has not Level A harassment has the most activity area. Steller sea lions and changed and is therefore not repeated potential to occur. transient killer whales could potentially here.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00025 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47165

TABLE 1—THE HABITAT AND CONSERVATION STATUS OF MARINE MAMMALS INHABITING THE GENERAL REGION OF THE ACTION AREA IN THE PACIFIC OCEAN OFF THE U.S. WEST COAST

Species Habitat ESA 1 MMPA 2

Mysticetes: Gray whale (Eschrichtius Coastal and shelf ..... DL—Eastern Pacific stock (or population) NC—Eastern Pacific stock (or population). robustus)...... EN—Western Pacific stock (or population) D—Western Pacific stock (or population). Odontocetes: Killer whale (Orcinus orca) Widely distributed .... NL ...... D—Southern Resident and AT1 Transient populations. Bottlenose dolphin Offshore, inshore, NL ...... NC (Tursiops truncatus). coastal, estuaries. Harbor porpoise (Phocoena Coastal and inland NL ...... NC phocoena). waters. Pinnipeds: Pacific harbor seal (Phoca Coastal ...... NL ...... NC vitulina richardsi). Northern elephant seal Coastal, pelagic NL ...... NC (Mirounga angustirostris). when migrating. California sea lion Coastal, shelf ...... NL ...... NC (Zalophus californianus). Steller sea lion Coastal, shelf ...... T ...... D (Eumetopias jubatus). Northen fur seal Pelagic, offshore...... NL ...... D—Pribilof Island/Eastern Pacific popu- (Callorhinus ursinus). lation. 1 U.S. Endangered Species Act: EN = Endangered, T = Threatened, NL = Not listed, DL = Delisted. 2 U.S. Marine Mammal Protection Act: D = Depleted, NC = Not classified.

Further information on the biology sound associated with the Trinidad Pier operation, and vibratory pile placement. and local distribution of these marine Reconstruction Project. Anticipated peak underwater noise mammal species and others in the Current NMFS practice, regarding levels may exceed the 120 dB (rms) region can be found in the Trinidad exposure of marine mammals to high- threshold for Level B harassment for Rancheria’s application and BA, which level underwater sounds is that continuous noise sources, but are not is available upon request (see cetaceans and pinnipeds exposed to anticipated to exceed the 180 and 190 ADDRESSES), and the NMFS Marine impulsive sounds of at or above 180 and dB (rms) Level A harassment thresholds Mammal Stock Assessment Reports, 190 dB (rms) or above, respectively, for cetaceans and pinnipeds, which are available online at: http:// have the potential to be injured (i.e., respectively. Expected in-air noise www.nmfs.noaa.gov/pr/species/. Level A harassment). NMFS considers levels are anticipated to result in elevated sound intensities within 152.4 Potential Effects of Activities on Marine the potential for behavioral (Level B) harassment to occur when marine m (500 ft) of the construction activities Mammals mammals are exposed to sounds below involving vibratory pile-driving and augering and do not exceed the injury The Trinidad Rancheria requests injury thresholds but at or above the 160 threshold put forth by Southall et al. authorization for Level B harassment of dB (rms) threshold for impulse sounds (e.g., impact pile-driving) and the 120 2007 for in-air sound exposure. No other three species of marine mammals (i.e., mechanisms are expected to affect Pacific harbor seals, Eastern Pacific gray dB (rms) threshold for continuous noise (e.g., vibratory pile-driving). No impact marine mammal use of the area. The whales, and California sea lions) debris containment boom, for instance, incidental to the use of heavy pile-driving is planned for the activity in Trinidad Bay. Current NMFS would not affect any haul-out and equipment and its propagation of would not entail noise, and activity in underwater and in-air noise from practice, regarding exposure of marine mammals to high-level in-air sounds, as the water is not materially different various acoustic mechanisms associated from normal vessel operations at the a threshold for potential Level B with the Trinidad Pier Reconstruction pier, to which the animals are already Project and the specified activities harassment, is at or above 90 dB re 20 μ habituated. discussed above. Marine mammals Pa for harbor seals and at or above 100 μ The notice of the proposed IHA (76 potentially occurring in Trinidad Harbor dB re 20 Pa for all other pinniped FR 28733, May 18, 2011) also included include Pacific harbor seals, Eastern species (Lawson et al., 2002; Southall et a discussion of the potential effects of Pacific gray whales, California sea lions, al., 2007). NMFS has not established a underwater and in-air noise on marine Steller sea lions, and killer whales threshold for Level A harassment for mammals. NMFS refers the reader to (transient). Killer whale and Steller sea marine mammals exposed to in-air Trinidad Rancheria’s application, and lion observations in the specific noise; however, Southall et al. (2007) μ the BA for additional information on the geographic area, as noted, are very rare recommends 149 dB re 20 Pa (peak) behavioral reactions (or lack thereof) by (less than one per year) and thus not (flat) as the potential threshold for all types of marine mammals to the pier likely to be affected by the proposed injury from in-air noise for all renovation operations. action. But the gray whale and pinnipeds. California sea lion are observed The acoustic mechanisms involved Underwater Noise occasionally, and harbor seals are entail in-air and underwater non- Background—When a pile is vibrated, seldom absent from the harbor, and thus impulsive noise caused by the activities the vibration propagates through the considered likely to be exposed to of vibratory pile removal, auger pile and radiates sound into the water

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00026 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47166 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

and the substrate as well as the air. underwater sound estimate of 120 dB potential effects relative to a background Sound pressure pulse as a function of (rms) is a conservative estimate for level of 126 dB (rms). time is referred to as the waveform. The daytime underwater noise levels, and Anticipated Extent of Underwater peak pressure is the highest absolute was used to calculate the action area for Project Noise value of the measured waveform, and the activity. The rationale for using the can be negative or positive pressure background estimate of 120 dB (rms) is Pile-Driving—There are several peak (see Table 1 of the IHA application based upon comparison with inland or sources of measurement data for piles for definitions of terms used in this protected marine waters (Puget Sound that have been driven with a vibratory analysis). The rms level is determined in Washington, and Lake Coeur d’Alene hammer. Illingworth and Rodkin (2008) by analyzing the waveform and in Idaho) that are not subject to the collected data at several different computing the average of the squared severity of wave and storm activity that projects with pile sizes ranging from 33 pressures over the time that comprise can occur in the Trinidad Bay area. It is to 183 cm (13 to 72 in). The most that portion of the waveform containing likely that intermittent directional representative data from these 90 percent of the sound energy sound sources of higher intensity measurements would be from the Ten (Richardson et al., 1995; Illingworth and constitute a part of the normal acoustic Mile River Bridge Replacement Project Rodkin, 2008). This rms term is background, to which seals in the area and the Port of Anchorage Marine described as rms 90 percent in this are habituated. Assuming that such Terminal Redevelopment Project. At document. In this analysis, underwater intermittent background sound sources Ten Mile, 96 cm (30 in) CISS piles were peak pressures and rms sound pressure may be twice as loud as the regionally measured in cofferdams filled with levels are expressed in decibels (dB) re averaged rms background sound level of water in the Ten Mile River at 33 ft (m) μ 1 Pa. The total sound energy in an 120 dB, then seals are unlikely to show and 330 ft (m) from the piles. The sound impulse accumulates over the duration a behavioral response to any sounds level in the water channel ranged from of that impulse. quieter than 126 dB (rms). A sound that less than 150 to 166 dB (rms). Levels Baseline Underwater Noise Level— is as loud as or below ambient/ generally increase gradually with Currently, no data are available background levels is likely not increasing pile size. These sound levels describing baseline levels of underwater discernable to marine mammals and are therefore considered a conservative sound in Trinidad Bay. Sound therefore is not likely to have the (credible worst case) estimate of the dissipates more rapidly in shallow potential to harass a marine mammal. expected levels given that the size of the waters and over soft bottoms (i.e., sand). piles proposed for this project are Much of Trinidad Bay is characterized Noise Thresholds—There has been extensive effort directed towards the smaller in diameter (45.7 cm or 18 in) by its shallow depth (30 to 50 ft), flat than the piles measured at Ten Mile. bottom, and floor substrate of rock, establishment of underwater sound cobble, gravel, sand, and irregularly thresholds for marine life. Various Illingworth and Rodkin (2008) submerged rock in some areas, thereby criteria for marine mammals have been gathered data at the Port of Anchorage making it a poor acoustic environment. established through precedent. Current (POA) during the vibratory driving of Currents, tides, waves, winds, NMFS practice regarding exposure of steel H piles. These data, and data commercial and recreational vessels, marine mammals to high-level sounds is gathered by others, were used as the and in-air noise may further increase that cetaceans and pinnipeds exposed to basis for the Environmental Assessment background sound levels near the action impulsive sounds of 180 and 190 dB that was prepared by NMFS for the area. Relevant index information can be (rms) or above, respectively, have the issuance of an IHA at the POA. These derived from underwater sound potential to be injured (i.e., Level A data were summarized in the POA IHA. baselines in other areas. The quietest harassment). NMFS considers the The POA IHA concluded that average waters in the oceans of the world are at potential for Level B harassment sound levels of vibratory pile-driving Sea State Zero, 90 dB (rms) at 100 Hz (behavioral) to occur when marine sounds would be approximately 162 dB μ (National Research Council, 2003; mammals are exposed to sounds below re 1 Pa at a distance of 20 m (65.6 ft). Guedel, 1992). Underwater sound levels injury thresholds, but at or above 160 Furthermore, for vibratory pile-driving, in Elliott Bay near Seattle, Washington, dB (rms) for impulse sounds at/or above the 120 dB level would be exceeded out representative of an area receiving 120 dB (rms) for continuous noise (e.g., to about 800.1 m (2,625 ft) from the moderately heavy vessel traffic, are vibratory pile-driving). As noted above, vibratory hammer. about 130 dB (rms) (WSDOT, 2006). In current NMFS practice, regarding A selection of additional projects Lake Pend Oreille, Idaho, an area which, exposure of marine mammals to high- using vibratory hammers was made like Trinidad Bay, receives moderate to level in-air sounds, as a potential from the ‘‘Compendium of Pile-Driving heavy traffic from smaller vessels, threshold for Level B harassment, is at Sound Data’’ (Illingworth and Rodkin, underwater sound levels of 140 dB (rms) or above 90 dB re 20 μPa for harbor seals 2007). This includes all projects in the are reached on summer weekends, and at or above 100 dB re 20 μPa for all compendium that used a vibratory dropping to 120 dB (rms) during quiet other pinniped species. Since, as noted hammer to drive steel pipe piles or H- mid-week periods (Cummings, 1987). above, background sound levels in piles. Data from these projects, and the Since Trinidad Bay receives daily, year- Trinidad Bay are anticipated to two projects named above are round use by a variety of recreational frequently exceed the 120 dB (rms) summarized in Table 2 of the IHA and fishing vessels, a background threshold, this analysis evaluates application and this document.

TABLE 2—SOUND LEVEL DATA

Distance dB re 1 μPa Project (m and ft) Pile type Water depth (rms)

10 Mile ...... 10 m (33 ft) ...... 76.2 cm (30 in) steel pipe Not stated ...... 166. 10 Mile ...... 100.6 m (330 ft) ...... 76.2 cm (30 in) steel pipe Not stated ...... Less than 150. Port of Anchorage ...... 20.1 m (66 ft) ...... H-pile ...... Not stated ...... 162.

VerDate Mar<15>2010 18:39 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00027 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47167

TABLE 2—SOUND LEVEL DATA—Continued

Distance dB re 1 μPa Project (m and ft) Pile type Water depth (rms)

San Rafael Canal ...... 10 m (33 ft) ...... 25.4 cm (10 in) H-pile ...... 2.1 m (7 ft) ...... 147. San Rafael Canal ...... 20.1 m (66 ft) ...... 25.4 cm (10 in) H-pile ...... 2.1 m (7 ft) ...... 137. Mad River Slough ...... 10 m (33 ft) ...... 33 cm (13 in) steel pipe .... 4.9 m (16 ft) ...... 154 to 156. Richmond Inner Harbor ..... 10 m (33 ft) ...... 1.8 m (6 ft) steel pipe ...... Not stated ...... 167 to 180. Richmond Inner Harbor ..... 29.9 m (98 ft) ...... 1.8 m (6 ft) steel pipe ...... Not stated ...... 160. Stockton Wastewater 10 m (33 ft) ...... 0.9 m (3 ft) steel pipe ...... Not stated ...... 168 to 175. Crossing. Stockton Wastewater 20.1 (66 ft) ...... 0.9 m (3 ft) steel pipe ...... Not stated ...... 166. Crossing. San Rafael Sea Wall ...... 10 m (33 ft) ...... 25.4 cm (10 in) H-pile ...... 2.1 m (7 ft) ...... 147. San Rafael Sea Wall ...... 20.1 m (66 ft) ...... 25.4 cm (10 in) H-pile ...... 2.1 m (7 ft) ...... 137. Source: Illingworth and Rodkin (2007, 2008).

Based on these data, the results for and the relative exposure risk based on material or liquid by means of a rotating 76.2 cm to 0.9 m (30 in to 3 ft) steel pipe the presence of shielding features helical shaft into the earth. An attempt driven in water would appear to (headlands and sea stacks). Under no was made to measure the noise from constitute a conservative representation circumstances would the Level A augering out the 76.2 cm (30 in) piles at of the potential effects of driving 45.7 harassment (injury) threshold for the Ten Mile Bridge Replacement cm (18 in) steel pipe at the Trinidad cetaceans or pinnipeds be exceeded, but Project. The levels were below the peak Pier. Those indicate an rms level of 166 the specified activities would likely director of the equipment, 160 dB peak, to 175 dB at 10 m (33 ft) from the pile. exceed the Level B harassment and so measurements were stopped. Calculations in this analysis assume the threshold, which also corresponds to Augering is expected to generate noise high end of this range. For this analysis, background sound level in the area, levels at or below the lower end of this close to the pile, it is assumed that there throughout Trinidad Harbor. Shielding range (Illingworth and Rodkin, 2008). would be a 4.5 dB (rms) decrease for by headlands flanking the harbor would, Using the uniform ‘‘practical spreading every doubling of the distance (practical however, prevent acoustic impacts to model’’ transmission loss rate of 4.5 dB spreading loss model). Isopleth waters outside the harbor that are not on (rms) per doubling of distance, distances based on this inference are a line-of-sight to the sound source. This background sound levels would exceed presented in Table 3 of Trinidad effect is shown in Figure 1 of the IHA the Level B harassment threshold at Rancheria’s IHA application and this application. distances of less than 2.4 km (1.5 mi) document. Figure 1 of the IHA Noise Levels from Augering—An (see Table 4 and Table 3 of the IHA application shows both the area of effect auger is a device used for moving application).

TABLE 3—PREDICTED DISTANCES TO UNDERWATER AND IN-AIR ACOUSTIC THRESHOLD LEVELS FOR THE TRINIDAD PIER RECONSTRUCTION PROJECT

Distance from activity to isopleths 100 dB Construction activity 190 dB 180 dB 160 dB 126 dB 90 dB in-air for in-air for (rms) (rms) (rms) (rms) harbor seals all other pinnipeds

45.7 cm (18 in) Pile Vibratory Instal- 0.9 m (3 ft) ...... 4.9 m (16 ft) ...... 101.5 m (333 ft) 23.3 km (14.5 26.5 m (87 ft) .... 10.5 m lation. mi). (34.5 ft). Augering ...... 0 m (0 ft) ...... 0.3 m (1 ft) ...... 10.1 m (33 ft) .... 2.4 km (1.5 mi) 18.3 m (60 ft) .... 7.3 m (24 ft). Wood Pile Removal ...... 0 m (0 ft) ...... 0.9 m (3 ft) ...... 21.6 m (71 ft) .... 5 km (3.1 mi) .... 26.5 m (87 ft) .... 10.5 m (34.5 ft).

Noise Levels from Removal of Wood a distance of 10 m (32.8 ft) were as Levels of 180 dB (rms) and 190 dB Piles—Removal of the existing wood follows: 172 to 182 dB peak, 163 to 168 (rms) are expected to occur in the water piles would be accomplished with the dB (rms). For a comparable CISS pile, at very small distances as a result of pile use of a vibratory hammer. Typically the using a 1,360.8 kg (3,000 lb) drop removal (see Table 3 in this document). noise levels for installing and removing hammer, the levels measured were 188 Peak sound pressures would not be a pile are approximately the same when to 192 dB peak, 172 to 177 dB (rms). expected to exceed 190 dB in water. The a vibratory hammer is used. The noise The noise generated during the average sound level of vibratory generated by installing wood piles is installation of the wood pile was woodpile removal would be generally lower than steel shell piles. approximately 10 dB lower than the approximately 152 dB (rms) at a Illingworth and Rodkin (2007, 2008) CISS piles. Following this logic, the distance of 20.1 m (66 ft). Using the have had only one opportunity to sound produced when removing the uniform practical spreading loss model measure the installation of woodpiles, wood piles would be about 10 dB lower transmission loss rate of 4.5 dB (rms) and this was with a 1,360.8 kg (3,000 lb) than when installing the CISS piles. per doubling of distance, the Level B impact hammer. The levels measured at harassment threshold distance would be

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00028 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47168 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

5 km (3.1 miles) (see Table 3 in the IHA thresholds for pinnipeds and cetaceans placement), and during augering of the application). would not be attained, but the acoustic CISS pile placements. Effects distances Potential for Biological Effects—Based background level in the area, 126 dB for these activities are shown in Table on the foregoing analysis, the action (rms) would be attained during use of 3 of the IHA application, and range up could result in underwater acoustic the vibratory pile driver (for wood to 23.3 km (14.5 mi). The duration of effects to marine mammals. The injury piling removal and for CISS pile exposure varies between activities.

TABLE 4—NOISE GENERATING ACTIVITIES

Number of Number of Time per Duration of days when 126 dB (rms) Construction activity piles pile activity activity isopleth distance occurs

45.7 cm (18 in) pile vibratory installation ...... 115 0:15 28:45 58 23.3 km (14.5 mi). Augering ...... 115 1:00 115:00 58 2.4 km (1.5 mi). Wood pile removal ...... 205 0:40 136:40 58 5 km (3.1 mi).

Pile installation would occur for offshore are likely already exposed to harbor is likely not less than 150 dB approximately 30 min (up to two piles and habituated to loud machinery noise (rms) at 10 m, though it will be quieter would be driven each day at up to 15 in the form of deep-draft vessel traffic as vessels ‘‘throttle back’’ near the pier. min drive time per pile) on each of 58 along the coast; such vessels may This level (150 dB [rms]) is the same as days (see Table 4 in the IHA application produce noise levels on the order of 170 the estimated noise level from augering, and this document), resulting in sound to 180 dB (rms) at 10 m and thus have and 15 dB less than the estimated noise levels exceeding the behavioral effect areas of effect comparable to the 23.3 level from pile removal. In this context, threshold within 23.3 km (14.5 mi) of km (14.5 mi) radius of effect calculated behavioral responses due to augering are the activity. for vibratory pile-driving noise. In this not likely, except that initially seals Pile removal is a quieter activity context, the 23.3 km (14.5 mi) radius of might approach the work area in performed for a longer time: effect is likely unrealistic, just as it is anticipation of foraging opportunities. Approximately 136:40 hours distributed likely unrealistic to think that these Such behavior would likely cease once evenly over 58 days, or about 2.5 hours seals alter their behavior in response to the seals learned the difference between on each day when the activity occurs. the passage of a large vessel 23.3 km the sound auger and that of a fishing Sound levels would exceed the (14.5 mi) away. Behavioral vessel. Behavioral responses in the form behavioral effect threshold within 5 km considerations suggest that the seals of avoidance due to pile removal might (3.1 mi) of the activity. would be able to determine that a noise occur within a distance of about 50 m Augering, the least-noisy activity, is source does not constitute a threat if it (164 ft) from the activity, but the area so estimated to require 1 hour for each of is more than a couple of miles away, affected constitutes a small fraction of 115 piles with activity occurring on and the sound levels involved are not Trinidad Harbor and has no haul-outs; each of 58 days evenly distributed high enough to result in injury (Level A thus very few seals would be expected during a 180-day period, or about 2 harassment). Nonetheless, these data to be affected. hours on each day when the activity suggest that pile-driving may affect seal In-Air Noise—The principal source of occurs. Sound levels would exceed the behavior throughout Trinidad harbor, in-air noise would be the vibratory pile behavioral effect threshold within 2.4 i.e., within approximately 1.6 km (1 mi) driver used to extract old wood piles km (1.5 mi) of the activity. of the activity. The nature of that effect and to place the new CISS piles. These activities could be performed is unpredictable, but logical responses Laughlin (2010) has recently reported on the same day, but are expected to on the part of the seals include tolerance unweighted sound measurements from normally occur on consecutive days, (noise levels would not be loud enough vibratory pile drivers used to place steel with a cycle of pile removal-pile to induce temporary threshold shift in piles at two projects involving dock installation-augering-grouting occurring harbor seals), or avoidance by using renovation for the Washington State as each of 25 successive bents is placed. haul-outs or by foraging outside the Ferries. In both projects, noise levels As shown in Figures 1 and 2 of the were measured in terms of the 5 min harbor. IHA application, Trinidad Bay is average continuous sound level (Leq). protected from waves coming from the With regard to noises other than pile- Frequency-domain spectra for the north and west, but open to coastline on driving (i.e., pile removal, augering, and maximum sound level (Lmax) were also the south. The coast extending to the construction noise), estimation of measured. The Leq measurements in south, and the rocky headland to the biological effects depends on the this case were equivalent to the west of the pier, would shield waters characteristics of the noise and the unweighted rms sound level, measured from the acoustic effects described behavior of the seals. The noise is over a 5 min period. above except within the bay itself. qualitatively similar to that produced by At the Wahkiakum County Ferry These topographic considerations result the engines of fishing vessels or the Terminal, one measurement station was in a situation such that underwater operations of winches, noises to which used to take measurements of the noise-generating activities would the seals are habituated and which they vibratory placement (APE hammer) of produce elevated underwater sound in fact regard as an acoustic indicator one 45.7 cm (18 in) steel in-water pile, within most of the bay itself, but would signaling good foraging opportunities the same size that would be placed have a minor effect on underwater near the pier. There are no data about during the Trinidad Pier renovation. At sound levels outside the bay. the magnitude of this acoustic indicator, the Keystone Ferry Dock renovation, Seals outside of Trinidad Harbor and but the noise produced by the fishing four measurement stations were used to more than 1.6 to 3.2 km (1 to 2 mi) vessel engines entering or leaving the take measurements of the vibratory

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00029 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47169

placement (APE hammer) of one 76.2 Driving of CISS piles would occur for performed on an average of 3.5 piles per cm (30 in) steel in-water pile. At both a total of approximately 0.5 hours per day, about 3.66 seals would be affected sites, piles were placed in alluvial day on each of 58 days within a 180 day by each of 3.5 pile removal events for sediments, whereas the Trinidad Pier period (August 1 through January 31, a total daily impact to 13 seals. piles would be placed in pre-bored 2010) (see Table 4 of the IHA Impacts attributable to augering holes in sandstone. Results from the application). Pile-driving would occur would also be similar, but augering Wahkiakum and Keystone piles during daylight hours, at which time would occur for a total of approximately (Laughlin, 2010) are shown in Table 5 harbor seals would be periodically 2 hours per day on each of 58 days. of the IHA application. coming to or leaving from haul-outs, Subject to the same assumptions as Based on these data (Laughlin, 2010), and possibly foraging within the radius described above, but this time with the in-air noise production during pile- of effect around the pile-driving activity. activity being performed on an average driving at the Trinidad Pier will likely Harbor seals haul-out on rocks and at of two piles per day, about seven or be between 87.5 and 96.5 dB re 20 μPa small beaches at many locations that are eight seals would be affected by each of unweighted at 50 ft. For the purpose of widely dispersed within Trinidad Bay; two augering events for a total daily the analysis presented below, it is the closest such haul-out is 70 m (229.7 impact to seven or eight seals. These assumed that in-air noise from vibratory ft) from the pier, while the most distant numbers would vary if more or fewer pile-driving would produce 96 dB (rms) is over 1 km (0.6 mi) away near the seals were present in the area of effect, unweighted. This noise would be south end of Trinidad Bay. and if seals spent more or less of their produced during both pile removal and Behavioral effects could result to all time in the water rather than on the pile placement activities. The augering seals that were in the water within the haul-out. equipment produces slightly less noise, area of effect during the portion of the Although harbor seals could also be 92 dB (rms) unweighted (WSDOT, day when piles were being driven affected by in-air noise and activity 2006). All other power equipment that (typically two piles per day). For associated with construction at the pier, would be used as part of the action (e.g., instance, if seals spent 10 percent of the seals at Trinidad Bay haul-outs are trucks, pumps, compressors) produces day in the water within the radius of presumably habituated to human at least 10 dB less noise and thus has effect, and assuming that the number of activity to some extent due to the daily much less potential to affect wildlife in seals present that day was coming and going of fishing and the area. approximately 37 (as discussed above in recreational vessels, and to existing In contrast, background noise levels the context of data presented by Goley activities at the pier such as operation near the Trinidad Pier are already et al. [2007]), then about 3.66 seals of the hoists and the loading and elevated due to normal pier activities. would be affected by each of two pile unloading of commercial crab boats. Marine mammals at Trinidad Bay haul- drives. Because the drives occurred These activities may occur at any time outs are presumably habituated to the during different parts of the day, of the day and may produce noise levels daily coming and going of fishing and different seals would likely be affected, up to approximately 82 dB at 15.2 m (50 recreational vessels, and to existing resulting in a total impact on that day ft) for periods of up to several hours at activities at the pier such as operation to seven or eight seals. a time. The operation of loud of the hoists and the loading and The 10 percent estimate given above equipment, including the vibratory pile- unloading of commercial crab boats. for the time seals spend within the driving rig and the auger, are above and These activities may occur at any time radius of effect is a representative figure outside of the range of normal activity of the day and may produce noise levels for the purposes of illustration. There at the pier and have the potential to up to approximately 82 to 86 dB are no data available on relative seal use could cause seals to leave a haul-out in (unweighted) at 15.2 m (50 ft) for of the haul-outs in Trinidad Bay, versus Trinidad Bay. This would constitute periods of up to several hours at a time. their use of waters in Trinidad Bay, Level B harassment (behavioral). To Accordingly 82 dB (unweighted) is versus their use of waters or haul-outs date, such behavior by harbor seals has chosen as the background level for noise elsewhere. The radius of effect is only not been documented in Trinidad Bay near the pier. a small fraction of Trinidad Bay, and in response to current levels of in-air Effects on Pacific Harbor Seals—In-air only a fraction of the rocks that noise and activity in the harbor, but sound attenuates at the rate of comprise the Indian Beach haul-out does have the potential to occur. On the approximately 5 dB/km for a frequency described in Goley et al. (2007) are contrary, seals have been documented of 1 kHz, air temperature of 10° C (50° within that radius of effect. However, it often approaching the pier during F), and relative humidity of 80 percent is known that during winter months normal fishing boat activities in (Kaye and Laby, 2010). These conditions (when the construction is scheduled to anticipation of feeding opportunities approximate winter weather in occur), seal use of the haul-outs in associated with the unloading of fish Trinidad. Under these conditions, the Trinidad Bay likely declines because the and shellfish. This circumstance noise of the vibratory pile-driver would seals spend a larger fraction of their suggests seal habituation to existing attenuate to approximately 82 dB at time at sea, foraging in offshore waters noise levels encountered near the pier. approximately 2.8 km (1.7 mi) from the (Goley, 2007). Figure 1 of the IHA Based on these examples it appears pier. Attenuation, which is proportional application shows that topographic likely that few harbor seals at haul-outs to frequency, would be reduced at lower shielding by headlands blocks a large would show a behavioral response to frequencies, and would be much greater area of offshore habitat from potential noise at the pier, particularly in view of at higher frequencies. Attenuation underwater construction noise effects. their existing habituation to noise would also be greater at locations where Impacts attributable to pile removal activities at the pier. The great majority headlands or sea stacks interfere with would be similar to those of pile- of haul-out locations in Trinidad Bay sound transmission, as shown in Figure driving, but pile removal would occur are at least 304.8 m (1,000 ft) from the 1 of the IHA application. Accordingly, for a total of approximately 2.5 hours pier, but one minor haul-out is 70.1 m the sounds produced by pile extraction, per day on each of 58 days (see Table (230 ft) from the pier (Goley, pers. augering, and pile replacement would 4 of the IHA application). Subject to the comm.). In view of the relatively large exceed background levels within almost same assumptions as described above, area that would be affected by elevated all of Trinidad Harbor. but this time with the activity being in-air noise, it appears probable that

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00030 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47170 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

some seals could show a behavioral Project activities producing underwater driving activities would be expected to response, despite their habituation to noise are scheduled to terminate at the affect 0.21 × 28.75 = 6.04 or current levels of human-generated end of January, which is a full month approximately six gray whales. noise; incidental take by this before female seals begin to seek sites Acoustic effects would be expected to mechanism may amount to an average suitable for pupping. result from pile removal, which is a of one seal harassed per day, when the Effects on California Sea Lions— quieter activity performed for a longer activities of pile removal, augering, or California sea lions, although abundant time. Approximately 205 piles will be pile placement are occurring (in in northern California waters, have removed, with 40 min of vibratory pile addition to the seals harassed by seldom been recorded in Trinidad Bay driver noise for each pile, resulting in a underwater noise). (i.e, there is little published information total exposure of 136.67 hours (see Harbor seal presence in the activity or data with which to determine how Table 4 of the IHA application). Thus area is perennial, with daily presence of they use Trinidad Bay). The low this activity would be expected to affect an average of approximately 37 seals at abundance in the area may be due to the 6.04 × 136.7/28.75 = 28.7 or a nearby haul-out during the months presence of a large and active harbor approximately 29 gray whales. when the activity would occur. The seal population there, which likely Acoustic effects would also be fraction of these seals that would be in competes with the sea lions for foraging expected to result from pile augering, the activity area is difficult to estimate. resources. Any sea lions that did visit which is an even quieter activity. There Traditionally the seals have regarded the action area during construction will be 115 holes augered, with one the pier as a prime foraging area due to activities would be subject to the same hour of noise for each hole, resulting in the recreational fishing activity and the type of impacts described above for a total exposure of 115 hours (see Table unloading of fishing boats that occur harbor seals. Observed use of the area by 4 of the IHA application). Thus this there. During the construction period, California sea lions amounts to less than activity would be expected to affect 6.04 however, these activities would cease, one percent of the number of harbor × 115/28.75 = 24.2 or approximately 24 and it is plausible that the seals would seals (Goley, pers. comm.); assuming a gray whales. No mechanism other than modify their foraging behavior one percent utilization rate, total underwater sound generation is accordingly. Based on the analysis in impacts to California sea lions amount expected to affect gray whales in the the IHA application and here in this to one percent of the effects of harbor action area. notice, seals would be affected once per seals, described above. The most likely number of gray day on each of 116 days when pile- There is a possibility of behavioral whales that would be taken is 59. Based driving or augering occurred, 13 seals effects related to project acoustic on the low detection rate of 0.21 whales would be affected per day on each of 58 impacts, in the event of California sea per hour (Goley et al., 2007), most of days when pile removal occurred, and lion presence in the activity area. Based these take events would likely be one seal would be affected by in-air on an interview with Dr. Dawn Goley independent, whales and would likely sound on each of 164 days when pile (pers. comm.), California sea lions have occur with adults of both sexes. removal, installation, or augering been seen in the activity area, albeit The potential effects to marine occurred. The potentially affected seals infrequently, and there are no mammals described in this section of include adults of both sexes. Goley et al. quantitative estimates of the frequency the document do not take into (2007) states that the seals are year- of their occurrence. Assuming that they consideration the required monitoring round residents; that they are non- are present with one percent of the and mitigation measures described later migratory, dispersing from a centralized frequency of harbor seals, it is possible in this document (see the ‘‘Mitigation’’ location to forage; and that they exhibit California sea lions might be subject to and ‘‘Monitoring and Reporting’’ high site fidelity, utilizing one to two behavioral harassment up to one percent sections) which, as noted are designed haul-out sites within their range and of the levels described for harbor seals. to effect the least practicable impact on rarely traveling more than 25 to 50 km The potentially affected sea lions affected marine mammal species or (15.5 to 31.1mi) from these haul-outs. include adults of both sexes. stocks. Effects on Eastern Pacific Gray The winter population of seals in Possible Effects of Activities on Marine Whales—Goley et al. (2007) list the Trinidad Bay seems to consist mostly of Mammal Habitat resident seals (Goley et al., 2007), so it sighting rates for gray whales during is likely that most seals in the eight years of monthly observations at The anticipated adverse impacts upon population would be affected more than Trinidad Bay. Sighting rates varied from habitat consist of temporary changes to once over the course of the construction 0 to 1.38 whales per hour of observation water quality and the acoustic period. It is therefore possible that some time. The average detection rate during environment, as detailed in the IHA measure of adaptation or habituation the period when pile removal and application and Appendix B of the BA. would occur on the part of the seals, placement would occur, in the months These changes are minor, temporary, whereby they would tolerate elevated from August through January, was 0.21 and limited in duration to the period of noise levels and/or utilize haul-outs whales per hour of observation time. In construction. No restoration is needed relatively distant from construction contrast, the average detection rate in because, as detailed in Section 6.1.6 of activities. There are a large but the months of February through July the BA, the project would have a net inventoried number of haul-outs within was 0.48 whales per hour. The majority beneficial effect on habitat in the Trinidad Bay, so such a strategy is of these detections were within 2 km activity area by removing an existing possible, but it is difficult to predict (1.2 mi) of the shoreline (Goley et al., source of stormwater discharge and whether the seals would show such a 2007). These data suggest that the effect creosote-treated wood. No aspect of the response. rate for gray whales would be project is anticipated to have any Project scheduling avoids sensitive approximately 0.21 whales per hour. permanent effect on the location of seal life history phases of harbor seals. Since vibratory pile-driving of CISS and sea lion haul-outs in the area, and Project activities producing underwater piles would occur for a total of no permanent change in seal or sea lion noise would commence in August. This approximately 28.75 hours (115 piles at use of haul-outs and related habitat is after the end of the annual molt, 15 min drive time apiece; see Table 4 of features is anticipated to occur as a which normally occurs in June and July. the IHA application), vibratory pile- result of the project.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00031 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47171

The temporary impacts on water • Use of a vibratory hammer to consideration of the following factors in quality and acoustic environment and minimalize the noise of piling and relation in one another: the beneficial long-term effects are not removal and installation; and • The manner in which, and the expected to have any permanent effects • Use of trained PSOs to detect, degree to which, the successful on the populations of marine mammals document, and minimize impacts (i.e., implementation of the measure is occurring in Trinidad Bay. The area of start-up procedures [short periods of expected to minimize adverse impacts habitat affected is small and the effects driver use with intervening pauses of to marine mammals; are temporary, thus there is no reason to comparable duration, performed two or • The proven or likely efficacy of the expect any significant reduction in three times, before beginning specific measure to minimize adverse habitat available for foraging and other continuous driver use], possible shut- impacts as planned; and • habitat uses for marine mammals. down of noise-generating operations The practicality of the measure for Although artificial, the pier functions [turning off the vibratory driver or auger applicant implementation. as a habitat feature. There would so that in-air and/or underwater sounds Based on NMFS’s evaluation of the probably be a temporary cessation of associated with construction no longer applicant’s measures, as well as other seal activity in the immediate vicinity of exceed levels that have the potential to measures considered by NMFS or the pier. It is not clear at this time how injure marine mammals]) to marine recommended by the public, NMFS has this would affect seal behavior. The mammals, as detailed in the Marine determined that the mitigation measures fishing vessels that normally use the Mammal Monitoring Plan (see provide the means of effecting the least pier during the months when Appendix C of the IHA application) and practicable impact on marine mammal construction would occur have two in paragraphs (1)–(8) of the monitoring species or stocks and their habitat, options; they can either transfer their and reporting provisions found in the paying particular attention to rookeries, cargoes to smaller vessels capable of ‘‘Monitoring and Reporting’’ section mating grounds, and areas of similar landing at the existing boat ramp (which later in this document. significance. is on the east side of the rocky headland Timing Constraints for Underwater Monitoring and Reporting just east of the pier, a few hundred feet Noise In order to issue an ITA for an away), or they can make temporary use To minimize noise impacts on marine activity, section 101(a)(5)(D) of the of pier facilities approximately 32.2 km mammals and fish, underwater MMPA states that NMFS must set forth (20 mi) to the south, in Eureka. Vessels construction activities shall be limited ‘‘requirements pertaining to the opting to travel to Eureka would likely to the period when the species of monitoring and reporting of such represent a lost foraging opportunity for concern will be least likely to be in the taking.’’ The MMPA implementing seals using Trinidad Bay. project area. The construction window regulations at 50 CFR 216.104 (a)(13) NMFS anticipates that the action will for underwater construction activities indicate that requests for IHAs must result in no impacts to marine mammal shall be August 1, 2011 to May 1, 2012. include the suggested means of habitat beyond rendering the areas Avoiding periods when marine accomplishing the necessary monitoring immediately around the Trinidad Pier mammals are in the action area is and reporting that will result in less desirable during pile-driving and another mitigation measure to protect increased knowledge of the species and pier renovation operations as the marine mammals from pile-driving and of the level of taking or impacts on impacts will be localized. Impacts to renovation operations. populations of marine mammals that are marine mammal, invertebrate, and fish Implementation Assurance: Provide expected to be present in the action species are not expected to be NMFS advance notification of the start area. detrimental. dates and end dates of underwater Consistent with NMFS procedures, Mitigation construction activities. the following marine mammal More information regarding the monitoring and reporting shall be In order to issue an Incidental Take Trinidad Rancheria’s monitoring and performed for the action: Authorization under section mitigation measures, as well as research (1) A NMFS-approved or -qualified 101(a)(5)(D) of the MMPA, NMFS must conducted, (i.e., noise study for Protected Species Observer (PSO) shall set forth the permissible methods of potential impacts to marine mammals attend the project site one hour prior taking pursuant to such activity, and and fish; potential impacts to historical, until one hour after construction other means of effecting the least archeological and human remains; activities cease each day throughout the practicable impact on such species or potential impacts to water quality construction window. stock and its habitat, paying particular during reconstruction activities; (2) The PSO shall be approved by attention to rookeries, mating grounds, potential impacts to substrate and water NMFS prior to reconstruction and areas of similar significance, and on quality during tremie concrete seal operations. the availability of such species or stock pouring; and potential temporary (3) The PSO shall search for marine for taking for certain subsistence uses. impacts to public access to the pier mammals within behavioral harassment The activity planned by the applicant during construction operations) for the threshold areas as identified within the includes a variety of measures Trinidad Pier Reconstruction Project acoustic effect thresholds in Section 6 of calculated to minimize potential can be found in Appendix B of the IHA Trinidad Rancheria’s IHA application. impacts on marine mammals, including: application. The area observed shall depend upon • Timing the activity to occur during NMFS has carefully evaluated the the type of underwater sound being seasonal lows in marine mammal use of applicant’s mitigation measures and has produced (e.g., pile extraction, augering, the activity area; considered a range of other measures in or pile installation). No practicable • Limiting activity to the hours of the context of ensuring that NMFS technology exists to allow for daylight (approximately 7 a.m. to prescribes the means of effecting the monitoring beyond the visual range at 7 p.m., with noise generating activities least practicable impact on the affected which seals and sea lions can be only authorized from one-half hour after marine mammal species and stocks and detected using binoculars sunrise until one-half hour before their habitat. NMFS’s evaluation of (approximately 0.8 km [0.5 mi]), sunset); potential measures included depending on visibility and sea state.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00032 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47172 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

The estimated maximum distance at of low visibility (i.e., fog) since work in the area, the Project Engineer (or their which PSOs will be able to visually would only occur during daylight hours, representative) shall immediately notify detect gray whales is about 1.6 km at which times the transmission loss the designated NMFS representative. (1 mi). rate is very low. Note that there will also (10) If marine mammals are sighted by (4) The PSO shall be present on the be many quiet periods between the PSO within the Level A and/or pier during pile-extraction, pile-driving individual noisy activities, during Level B harassment acoustic thresholds and augering to observe for the presence which whales can be detected. Most of areas, the PSO shall record the number of marine mammals in the vicinity of the work day is spent in preparing for of marine mammals within the area of the specified activity. All such activity a few noisy intervals. Auditory effect and the duration of their presence will occur during daylight hours (i.e., 30 monitoring is less effective for detecting while the noise-generating activity is min after sunrise and 30 min before the presence of pinnipeds. occurring. The PSO will also note sunset). If inclement weather limits (7) The PSO will scan the area of whether the marine mammals appeared visibility within the area of effect, the effect for at least 30 min continuously to respond to the noise and if so, the PSO will perform visual scans to the prior to any episode of pile-driving to nature of that response. The PSO shall extent conditions allow, but activity determine whether marine mammals are record the following information: date will be stopped at any time that the present, and will continue to scan the and time of initial sighting, tidal stage, observer cannot clearly see the water area during the period of pile-driving. weather, conditions, Beaufort sea state, surface out to a distance of at least 30.5 The scan will continue for at least 30 species, behavior (activity, group m (100 ft) from the activity. In min after each in-water work episode cohesiveness, direction and speed of conditions of good visibility, PSOs will has ceased. The scan will involve two travel, etc.), number, group likely be able to detect pinnipeds out to visual ‘‘sweeps’’ of the area using the composition, distance to sound source, a range of approximately 0.8 km (0.5 mi) naked eye and binoculars. Typically, the number of animals impacted, from the pier, and to detect whales out sweep would be conducted slowly as construction activities occurring at time to a range of approximately 1.6 km (1.0 follows: one sweep going from left to of sighting, and monitoring and mi) from the pier. Animals at greater right and the other returning from right mitigation measures implemented (or distances likely would not be detected. to left. The length of time it takes to do not implemented). The observations (5) Visibility is a limiting factor the sweep will depend on the amount will be reported to NMFS in a letter during much of the winter in Trinidad of area that needs to be covered, weather report to be submitted on each Monday, Bay. As discussed in the BA, shut- conditions, and the time it takes the describing the previous week’s downs during times of fog could well monitor to thoroughly survey the area. observations. result in prolonging the construction (8) Pile removal, augering, and pile (11) A final report will be submitted period into the beginning of the placement activities will be shut-down summarizing all in-water construction pupping season for harbor seals. The if any cetacean or pinniped is about to activities and marine mammal estimated distances for Level A enter or within the EZ determined by monitoring during the time of the harassment do not exceed 4.9 m (16 ft) the estimated Level A harassment authorization, and any long term from the activity. The activities will thresholds (see Table 3 for estimated impacts from the project. shut-down if visibility is so poor that distances [above]). Since the activities A written log of dates and times of seals cannot be detected when they are would produce sound levels that have monitoring activity will be kept. The log at risk of injury (i.e., if visibility the unlikely potential to result in Level shall report the following information: precludes observation of the area within A harassment (due to the very small • Time of observer arrival on site; 30.5 m [100 ft] of the pier). During the radii of effect), a measure such as a shut- • Time of the commencement of 30 min prior to the start of noise- down may be unnecessary, but it would underwater noise generating activities, generating activities and the quiet be appropriate for the Trinidad and description of the activities (e.g., periods between individual noise- Rancheria to shut-down and consult pile removal, augering, or pile generating activities, auditory with NMFS if measurements indicate installation); monitoring may be highly effective for that any activities attain sound levels • Distances to all marine mammals detecting gray whales, but probably less that reach the Level A harassment relative to the sound source; effective for harbor seals and California threshold. If any other marine mammals • For harbor seal observations, notes sea lions. are observed within the area of effect, on seal behavior during noise-generating (6) The PSO will also perform pile-driving will not commence. If a activity, as described above, and on the auditory monitoring, and will report any marine mammal swims into the area of number and distribution of seals auditory evidence of marine mammal effect during pile-driving, the PSO will observed in the project vicinity; activity. Auditory detection will be identify the animal and, if it is not a • For observations of all marine based only on the use of the human ear harbor seal, will notify the Project mammals other than harbor seals, the (without technological assistance). Engineer who will notify the Contractor, time and duration of each animal’s Auditory monitoring is effective for and pile-driving will stop (i.e., shut- presence in the project vicinity; the detecting the presence of gray whales in down). If the animal has been observed number of animals observed; the close proximity to the action area (e.g., to leave the area of effect, or 15 min for behavior of each animal, including any blows, splashes, etc.). Close proximity pinnipeds and 30 min for cetaceans response to noise-generating activities; varied depending on how loud the have passed since the last observation of whether activities were halted in sound produced by the gray whale is, the animal, pile-driving will proceed. response to the animal’s presence; and and on the in-air transmission loss rate. Visual observation of the area of effect whether, and if so, the time of NMFS Auditory monitoring prior to the start of is limited to the area that can be notification; the noise-generating activity occurs in practicably observable for animals to be • Time of the cessation of underwater the absence of masking noise and thus detected, which is approximately 0.8 noise generating activities; and helps to ensure that the auditory km (0.5 mi) for pinnipeds and 1.6 km • Time of observer departure from monitoring is effective. Auditory (1 mi) for gray whales. site. All monitoring data collected monitoring is only likely more effective (9) Whenever a construction halt is during construction will be included in than visual monitoring under conditions called due to marine mammals presence the biological monitoring notes to be

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00033 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47173

submitted weekly be electronic mail. is deemed ‘‘representative’’ or ‘‘valid’’ • The fate of the animal(s); and Monthly summary reports will be by the monitor (accompanying estimates photographs or video footage of the submitted to NMFS. A report of data significance, confounding animal (if equipment is available). summarizing the construction factors, etc. may be supplied by the Activities shall not resume until monitoring and any general trends acoustician where deemed applicable). NMFS is able to review the observed will also be submitted to The permit also specifies reporting circumstances of the prohibited take. NMFS within 90 days after monitoring protocols, to be developed in NMFS shall work with Trinidad has ended during the period of pier cooperation with and approved by Rancheria to determine what is construction. representatives of the California Coastal necessary to minimize the likelihood of Commission, the California Department Underwater Noise Monitoring further prohibited take and ensure of Fish & Game, and NMFS. MMPA compliance. Trinidad Rancheria Underwater noise monitoring and The Trinidad Rancheria would notify may not resume their activities until reporting shall be performed consistent NMFS Headquarters and the NMFS notified by NMFS via letter, e-mail, or with conditions of Coastal Development Southwest Regional Office prior to telephone. Permit 1–07–046. Those conditions are initiation of the pier reconstruction In the event that Trinidad Rancheria here summarized: activities. A draft final report must be discovers an injured or dead marine Prior to commencement of demolition submitted to NMFS within 90 days after mammal, and the lead PSO determines and construction authorized by coastal the conclusion of the Trinidad Pier that the cause of the injury or death is development permit No. 1–07–046, the Reconstruction Project. The report unknown and the death is relatively applicant shall submit a Hydroacoustic would include a summary of the Monitoring Plan, containing all recent (i.e., in less than a moderate state information gathered pursuant to the of decomposition as described in the supporting information and analysis monitoring requirements set forth in the deemed necessary by the Executive next paragraph), Trinidad Rancheria IHA, including dates and times of will immediately report the incident to Director for the Executive Director’s operations, and all marine mammal review and approval. Prior to submitting the Chief of the Permits Conservation, sightings (dates, times, locations, and Education Division, Office of the plan, to the Executive Director, the species, behavioral observations Protected Resources, NMFS, at 301– applicant shall also submit copies of the [activity, group cohesiveness, direction 427–8401, and/or by Plan to the reviewing marine biologists and speed of travel, etc.], tidal stage, e-mail to [email protected] and of the California Department of Fish & weather conditions, sea state, activities, [email protected], and the Game and the NMFS for their review associated pier reconstruction NMFS Southwest Regional Office (562– and consideration. activities). A final report must be 980–4017) and/or by e-mail to the At a minimum, the Plan shall: submitted to the Regional Administrator Southwest Regional Stranding (1) Establish the field locations of within 30 days after receiving comments Coordinators ([email protected] hydroacoustic monitoring stations that from NMFS on the draft final report. If and [email protected]). The report will be used to document the extent of no comments are received from NMFS, must include the same information the hydroacoustic hazard footprint the draft final report would be identified above. Activities may during vibratory extrication or considered to be the final report. continue while NMFS reviews the placement of piles or rotary augering In the unanticipated event that the circumstances of the incident. NMFS activities, and provisions to adjust the specified activity clearly causes the take will work with Trinidad Rancheria to location of the acoustic monitoring of a marine mammal in a manner determine whether modifications in the stations based on data acquired during prohibited by this Authorization, such activities are appropriate. monitoring, to ensure that the sound as an injury (Level A harassment), pressure field is adequately serious injury or mortality, Trinidad In the event that Trinidad Rancheria characterized; Rancheria shall immediately cease the discovers an injured or dead marine (2) Describe the method of specified activities and immediately mammal, and the lead PSO determines hydroacoustic monitoring necessary to report the incident to the Chief of the that the injury or death is not associated assess the actual conformance of the Permits, Conservation, and Education with or related to the activities vibratory extrication or placement of Division, Office of Protected Resources, authorized (e.g., previously wounded piles or rotary augering with the dual NMFS, at 301–427–8401 and/or by e- animal, carcass with moderate to metric exposure criteria in the vicinity mail to [email protected] and advanced decomposition, or scavenger of the vibratory extrication or placement [email protected] and the damage), Trinidad Rancheria shall of piles or rotary augering locations on Southwest Regional Stranding report the incident to the Chief of the a real-time basis, including relevant Coordinators ([email protected] Permits, Conservation, and Education details such as the number, location, and [email protected]). The report Division, Office of Protected Resources, distances, and depths of hydrophones must include the following information: NMFS, at 301–427–8401, and/or by e- and associated monitoring equipment. • Time, date, and location (latitude/ mail to [email protected] and (3) Include provisions to continuously longitude) of the incident; [email protected], and the record noise generated by the vibratory • The type of activity involved; NMFS Southwest Regional Office (562– extrication or placement of piles or • Description of the circumstances 980–4017) and/or by rotary augering in a manner that enables during and leading up to the incident; e-mail to the Southwest Regional continuous and peak sound pressure • Status of all sound source use in the Stranding Coordinators and other measures of sound energy per 24 hours preceding the incident; water ([email protected] and strike, or other information required by depth; environmental conditions (e.g., [email protected]), within the Executive Director in the wind speed and direction, Beaufort sea 24 hours of the discovery. Trinidad consultation with marine biologists of state, cloud cover, and visibility); Rancheria shall provide photographs or the California Department of Fish & • Description of marine mammal video footage (if available) or other Game and NMFS, as well as provisions observations in the 24 hours preceding documentation of the stranded animal to supply all monitoring data that is the incident; species identification or sighting to NMFS and the Marine recorded, regardless of whether the data description of the animal(s) involved; Mammal Stranding Network.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47174 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Estimated Take by Incidental construction methods that generate the underwater sound generating activities Harassment lowest practicable levels of underwater during periods of high visibility is Except with respect to certain sound. therefore impracticable, as it would activities not pertinent here, the MMPA (2) California sea lions are found greatly prolong the time required for defines ‘‘harassment’’ as: among the harbor seals, at about one construction. For this reason it is percent of the harbor seal abundance; possible that marine mammals may Any act of pursuit, torment, or annoyance thus there is a risk of incidentally enter waters where they may be exposed which (i) has the potential to injure a marine to sound levels in excess of the Level B mammal or marine mammal stock in the wild affecting California sea lions at the same [Level A harassment]; or (ii) has the potential times and by the same mechanisms at harassment threshold without being to disturb a marine mammal or marine an exposure level above the Level B detected by PSOs. This is why the mammal stock in the wild by causing harassment threshold that harbor seals Marine Mammal Monitoring Plan (see disruption of behavioral patterns, including, are affected. Appendix C of the IHA application) but not limited to, migration, breathing, (3) Gray whales have a high provides for work stoppage when nursing, breeding, feeding, or sheltering likelihood of occurring in Trinidad Bay visibility is less than 30.5 m (100 ft), [Level B harassment]. during the construction period. They and provides for auditory detection (for Based on NMFS’s assessment of the may not be detected by PSOs if they both cetacean and pinniped monitoring) potential effects of the specified occur near the outer limits of the area in conditions of reduced visibility and activities on marine mammals likely to of the Level B harassment impact zone. assumes that any auditory direction occur within the action area, NMFS has (4) The area has a high incidence of represents an animal that is within the determined that incidental harassment harbor fog, which complicates area with sound levels in excess of the of Pacific harbor seals, California sea successful detection of animals when Level B harassment threshold. lions, and Eastern Pacific gray whales is they enter waters where they may be Incidental take estimates are based on anticipated for the following reasons: exposed to sound levels in excess of the estimates of use of Trinidad Bay by (1) Surveys have demonstrated that Level B harassment threshold. Dense fog various species as reported by Goley harbor seals are almost always present is a common occurrence in this area in (2007 and pers. comm.). All within the area that would be affected all seasons of the year. In 2008, for reconstruction activities generating by underwater sound. Thus, it is not instance, the NOAA weather station in underwater sound during the project are possible to avoid affecting harbor seals nearby Eureka reported 63 days of fog expected to exceed background sound at an exposure level below the Level B with visibility less than 0.4 km (0.25 levels through Trinidad Bay. Table 5 in harassment threshold. Potential effects mi), and 176 cloudy days. Local this document outlines the number of to harbor seals have been minimized by anecdotal reports indicate that the marine mammals that might be taken by constructing during a period when incidence of fog is much higher on the Level B harassment from the various sensitive life history stages (pupping harbor waters than on the adjacent activities (both in-air and underwater and molting) do not occur, and by using uplands. Attempting to only perform estimates are provided for pinnipeds).

TABLE 5—SUMMARY OF THE NOISE PRODUCTION AND ANTICIPATED INCIDENTAL TAKE BY LEVEL B HARASSMENT FOR THE TRINIDAD RANCHERIA’S ACTION GENERATING IN-AIR AND UNDERWATER NOISE

Wood pile removal Augering Vibratory pile installation Variable Underwater noise In-air noise Underwater noise In-air noise Underwater noise In-air noise

Sound Amplitude ... 156.5 dB (rms) at 104 dB at 50 ft .... 150 dB (rms) at 94 dB at 50 ft ...... 175 dB (rms) at 104 dB at 50 ft. 10.1 m (33 ft). 15.2 m (50 ft). 10.1 m (33 ft).

Sound Duration Per 2.5 2 0.5. Day (hours).

Activity Frequency 2 3.5 2. Per Day.

Number of Days * ... 58 58 58.

Total Hours of Ex- 145 116 29. posure.

Incidental Take of 13 ...... 1 ...... 7 or 8 ...... 1 ...... 7 or 8 ...... 1. Harbor Seals Per Day. Incidental Take of 754 ...... 58 ...... 435 ...... 58 ...... 435 ...... 58. Harbor Seals Total. Incidental Take of 7.5 ...... 0.6 ...... 4.4 ...... 0.6 ...... 4.4 ...... 0.6. California Sea Lions Total. Incidental Take of 28.7 ...... 0 ...... 28.7 ...... 0 ...... 6.04 ...... 0. Gray Whales. Note: * No two activities would be performed on any given day.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47175

Encouraging and Coordinating (2) The potential for permanent avoidance of important habitat) are Research hearing impairment is relatively low more likely to be significant if they last Existing knowledge gaps regarding the and would likely be avoided through more than one diel cycle or recur on Trinidad Bay harbor seals were the incorporation of the required subsequent days (Southall et al., 2007). identified in discussions with Dr. Dawn monitoring and mitigation measures While Trinidad Pier operations are Goley, professor, HSU. Dr. Goley noted (described above); anticipated to occur on consecutive that the timing and movements of the (3) The fact that cetaceans would have days, the entire duration of the project Trinidad Bay harbor seals are not well to be closer than 0.9 m (3 ft), 0.3 m (1 resulting in incidental take of marine understood, and could be better ft), and 4.9 m (16 ft) and pinnipeds mammals is not expected to last more understood by radio tracking studies of would have to be closer than 0 m (0 ft), than six months. Of the three marine a representative group of seals. Dr. 0 m (0ft), and 0.9 m (3 ft), during pile- mammal species under NMFS Goley also noted the uncertain removal, augering, and vibratory pile- jurisdiction that are known to or likely relationship between Trinidad Bay and driving activities, respectively, to be to occur in the study area, none are Patrick’s Point seals, and noted that the exposed to levels of sound believed to listed as threatened or endangered radio tracking study might help to have even a minimal chance of causing under the ESA or depleted under the elucidate that relationship. a permanent thresholds shift (PTS; i.e., MMPA. To protect these animals (and Level A harassment); and other marine mammals in the project Negligible Impact and Small Numbers (4) The likelihood that marine area), Trinidad Rancheria must cease Analysis and Determination mammal detection ability by trained operations if animals enter designated NMFS has defined ‘‘negligible PSOs is high at close proximity to the zones. No injury, serious injury, or impact’’ in 50 CFR 216.103 as ‘‘* * * an pier. mortality is expected to occur and due impact resulting from the specified No injuries, serious injuries, or to the nature, degree, and context of the activity that cannot be reasonably mortalities or alteration of reproductive Level B harassment anticipated, the expected to, and is not reasonably likely behaviors are anticipated to occur as a specified activity is not expected to to adversely affect the species or stock result of Trinidad Rancheria’s planned impact rates of recruitment or survival. through effects on annual rates of renovation operations, and none are As mentioned previously, NMFS recruitment or survival.’’ In making a authorized by NMFS. Only short-term, estimates that three species of marine negligible impact determination, NMFS minor, behavioral disturbance is mammals under its jurisdiction could be considers a variety of factors, including anticipated to occur due to the brief and potentially affected by Level B but not limited to: sporadic duration of the renovation harassment over the course of the IHA. (1) The number of anticipated activities. Table 5 (above) in this For each species, these numbers are injuries, serious injuries, or mortalities; document outlines the number of Level estimated to be small (i.e., 1,798 harbor (2) The number, nature, intensity, and B harassment takes that are anticipated seals [5.7 percent], 21 California sea duration of Level B harassment (all as a result of the activities. Project lions [0.02 percent], and 65 gray whales relatively limited); scheduling avoids sensitive life history [0.4 percent]), less than a few percent of (3) The context in which the takes phases for harbor seals. Project activities any of the estimated populations sizes occur (i.e., impacts to areas of producing underwater noise would based on data in this notice, and has significance, impacts to local commence in August. This is after the been mitigated to the lowest level populations, and cumulative impacts end of the annual molt, which normally practicable through the incorporation of when taking into account successive/ occurs in June and July. Project the monitoring and mitigation measures contemporaneous actions when added activities producing underwater noise mentioned previously in this document. to baseline data); are scheduled to terminate at the end of NMFS’s practice has been to apply (4) The status of stock or species of January, which is a full month before 120 dB re 1 μPa (rms) received level marine mammals (i.e., depleted, not female seals commence to seek sites threshold for underwater non-impulse depleted, decreasing, increasing, stable, suitable for pupping. It is possible that sound levels to determine whether take and impact relative to the size of the severe winter storms or other by Level B harassment occurs. Southall population); unforeseen events could delay the et al. (2007) provide a severity scale for (5) Impacts on habitat affecting rates conclusion of activities producing ranking observed behavioral responses of recruitment or survival; and underwater noise, but the scheduled of both free-ranging marine mammals (6) The effectiveness of monitoring one month buffer between underwater and laboratory subjects to various types and mitigation measures (i.e., the construction and the start of pupping- of anthropogenic sound (see Table 4 in manner and degree in which the related activity provides assurance that Southall et al. [2007]). Current NMFS measure is likely to reduce adverse a reasonable level of project delays practice, regarding exposure of marine impacts to marine mammals, the likely could occur without adverse mammals to high-level in-air sounds, as effectiveness of the measures, and the consequences for the harbor seals. Due a threshold for potential Level B practicability of implementation). to the nature, degree, and context of harassment, is at or above 90 dB re 20 For reasons stated previously in this Level B (behavioral) harassment μPa for harbor seals and at or above 100 document, and in the proposed notice of anticipated and described (see Potential dB re 20 μPa for all other pinniped the IHA (76 FR 28733, May 18, 2011), Effects on Marine Mammals section species (Lawson et al., 2002; Southall et the specified activities associated with above) in this notice, the activity is not al., 2007). NMFS has not determined the Trinidad Pier Reconstruction Project expected to impact rates of recruitment Level A harassment thresholds for are not likely to cause PTS, or other or survival for any affected species or marine mammals for in-air noise. non-auditory injury, serious injury, or stock. NMFS has determined, provided that death because of: Many animals perform vital functions, the aforementioned mitigation and (1) The likelihood that marine such as feeding, resting, traveling, and monitoring measures are implemented, mammals are expected to move away socializing, on a diel cycle (i.e., 24 hr that the impact of conducting the from a noise source that is annoying cycle). Behavioral reactions to noise renovation operations on the Trinidad prior to its becoming potentially exposure (such as disruption of critical Pier in Trinidad Bay, August, 2011 injurious; life functions, displacement, or through January, 2012, may result, at

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47176 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

worst, in a temporary modification in action is not likely to adversely affect Fishery Conservation and Management behavior and/or low level physiological federally threatened Southern Oregon/ Act, as amended by the Sustainable effects (Level B harassment) of small Northern California Coast (SONCC) Fisheries Act of 1996 (Pub. L. 104–267, numbers of certain species of marine coho salmon (Oncorhynchus kisutch), 16 U.S.C 1801 et seq.) and its mammals. See Table 5 (above) for the California Coastal (CC) Chinook salmon implementing regulations 50 CFR authorized take numbers of cetaceans (Oncorhynchus tshawytscha), and 600.920(a). The ACOE determined that and pinnipeds. Northern California (NC) steelhead the proposed action would adversely While behavioral modifications, (Oncorhynchus mykiss). affect EFH for species managed under including temporarily vacating the area On November 30, 2009, the NMFS the Pacific Coast Salmon, Pacific Coast during the renovation operations, may SWRO issued a separate letter assessing Groundfish, and Coastal Pelagics be made by these species to avoid the project effects relative to marine resultant in-air and/or underwater mammals protected under the Federal Fishery Management Plans. NMFS acoustic disturbance, the availability of ESA. NMFS’s letter concurred with the SWRO determined that the proposed alternate areas within these areas and ACOE’s determination that the proposed action would adversely affect EFH for the short and sporadic duration of the action may affect, but is not likely to species managed under the Pacific Coast research activities, have led NMFS to adversely affect the Federally threatened Salmon, Pacific Coast Groundfish, and determine that this action will have a Steller sea lion. The USFWS has Coastal Pelagics Fishery Management negligible impact on the specified informed the ACOE that a formal ESA Plans. Habitat will be lost during geographic region. section 7 consultation is not necessary removal of wooden pilings; however, Based on the analysis contained for any of their jurisdictional species NMFS expected recolonization of the herein of the likely effects of the (i.e., no listed species are likely to be new pilings within a year. NMFS specified activity on marine mammals adversely affected). believes the proposed action has been and their habitat, and taking into designed to minimize and reduce the consideration the implementation of the National Environmental Policy Act (NEPA) magnitude of potential effects during mitigation and monitoring measures, implementation of the proposed action. The ACOE, San Francisco District, has NMFS finds that Trinidad Rancheria’s Therefore, NMFS provides no additional prepared a permit evaluation and planned renovation activities of the conservation recommendations. In decision document that constitutes an Trinidad Pier, will result in the addition, NMFS expects EFH will incidental take of small numbers of Environmental Assessment (EA), improve in the vicinity of the pier due marine mammals, by Level B Statement of Findings, and review and to the following: harassment only, and that the total compliance determination for the taking from the construction project will proposed action, which analyzed the (1) Removal and replacement of have a negligible impact on the affected project’s purpose and need, alternatives, creosote-treated wooden piles with CISS species or stocks of marine mammals; affected environment, and concrete pilings; and the impacts to affected species or environmental effects for the action. (2) A stormwater collection and NMFS has reviewed the ACOE EA for stocks of marine mammals have been treatment system where all stormwater consistency with the regulations mitigated to the lowest level practicable. will be collected and routed by gravity published by the Council of Impact on Availability of Affected Environmental Quality (CEQ) and feed to an upland treatment cell that Species for Taking for Subsistence Uses NOAA Administrative Order 216–6, will provide detention, settling, and Section 101(a)(5)(D) also requires Environmental Review Procedures for active filtering prior to complete NMFS to determine that the Implementing the National infiltration; authorization will not have an Environmental Policy Act, and (3) Reduced artificial lighting effects; unmitigable adverse effect on the conducted a separate NEPA analysis and availability of marine mammal species and prepared an ‘‘Environmental (4) The HSU marine lab water intake or stocks for subsistence use. There are Assessment for Issuance of an Incidental associated with the pier will be fitted no relevant subsistence uses of marine Harassment Authorization for Cher-Ae with NMFS-approved screens, mammals in the study area that Heights Indian Community of the minimizing the risk of entrainment of implicate MMPA section 101(a)(5)(D). Trinidad Rancheria’s Trinidad Pier small prey fish species. Reconstruction Project in Trinidad, Endangered Species Act (ESA) California,’’ which analyzes the project’s Authorization On July 13, 2009, NMFS Southwest purpose and need, alternatives, affected Regional Office (SWRO) received the environment, and environmental effects NMFS has issued an IHA to the U.S. Army Corps of Engineers (ACOE) for the action prior to making a Trinidad Rancheria for the take, by July, 9, 2009, letter and Biological determination on the issuance of the Level B harassment, of small numbers of Assessment (BA), requesting initiation IHA. Based on the analysis in the EA three species marine mammals of informal consultation on the issuance and the underlying information in the incidental to specified activities related of a Clean Water Act section 404 permit record, including the application, to renovation of the Trinidad Pier, to the Trinidad Rancheria to allow in- proposed IHA, public comments and provided the previously mentioned water work associated with the informal ESA section 7 consultation, mitigation, monitoring, and reporting proposed action. The BA and informal NMFS has prepared and issued a requirements are incorporated. consultation request were submitted for Finding of No Significant Impact compliance with Section 7(a)(2) of the determining that preparation of an Dated: July 29, 2011. ESA, as amended (16 U.S.C. 1531 et Environmental Impact Statement is not Helen M. Golde, seq.), and its implementing regulations required. Deputy Director, Office of Protected (50 CFR 402). On October 27, 2009, Resources, National Marine Fisheries Service. Essential Fish Habitat (EFH) NMFS SWRO issued a Letter of [FR Doc. 2011–19809 Filed 8–3–11; 8:45 am] Concurrence, concurring with the The ACOE requested consultation on BILLING CODE 3510–22–P ACOE’s determination that the proposed EFH, pursuant to the Magnuson-Stevens

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00037 Fmt 4703 Sfmt 9990 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47177

CONSUMER PRODUCT SAFETY Dated: July 29, 2011. necessary to the proper functions of the COMMISSION Aaron Siegel, Department; (2) will this information be Alternate OSD Federal Register Liaison processed and used in a timely manner; Sunshine Act Meetings Officer, Department of Defense. (3) is the estimate of burden accurate; [FR Doc. 2011–19722 Filed 8–3–11; 8:45 am] (4) how might the Department enhance CITATION OF PREVIOUS Federal Register BILLING CODE 5001–06–P the quality, utility, and clarity of the ANNOUNCEMENT: Vol. 76, information to be collected; and (5) how No. 145, Thursday, July 28, 2011, pages might the Department minimize the 45233–45234. DEPARTMENT OF EDUCATION burden of this collection on the ANNOUNCED TIME AND DATE OF MEETING: respondents, including through the use Closed to the Public, Wednesday, Notice of Proposed Information of information technology. August 3, 2011, 10–11 a.m. Collection Requests Dated: July 29, 2011. MATTER TO BE CONSIDERED: Compliance AGENCY: Department of Education. Darrin A. King, Status Report. ACTION: Comment request. Director, Information Collection Clearance Meeting Canceled. Division, Regulatory Information Management Services, Office of Management. For a recorded message containing the SUMMARY: The Department of Education latest agenda information, call (301) (the Department), in accordance with Federal Student Aid 504–7948. the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), Type of Review: Revision. CONTACT PERSON FOR ADDITIONAL provides the general public and Federal Title of Collection: Federal Family INFORMATION: Todd A. Stevenson, Office agencies with an opportunity to Education Loan Program, William D. of the Secretary, 4330 East West comment on proposed and continuing Ford Federal Direct Loan Program, and Highway, Bethesda, MD 20814; (301) collections of information. This helps Federal Perkins Loan Program: School 504–7923. the Department assess the impact of its Closure and False Certification Loan Dated: August 2, 2011. information collection requirements and Discharge Applications. OMB Control Number: 1845–0015. Todd A. Stevenson, minimize the reporting burden on the Agency Form Number(s): N/A. Secretary. public and helps the public understand the Department’s information collection Frequency of Responses: On [FR Doc. 2011–19865 Filed 8–2–11; 11:15 am] Occasion. BILLING CODE 6355–01–P requirements and provide the requested data in the desired format. The Director, Affected Public: Individuals or House. Information Collection Clearance Total Estimated Number of Annual Division, Regulatory Information Responses: 29,543. Total Estimated Number of Annual DEPARTMENT OF DEFENSE Management Services, Office of Management, invites comments on the Burden Hours: 14,774. Office of the Secretary proposed information collection Abstract: These forms serve as the requests as required by the Paperwork means by which eligible borrowers in Publication of Housing Price Inflation Reduction Act of 1995. the Federal Family Education Loan Adjustment Program, the William D. Ford Federal DATES: Interested persons are invited to Direect Loan Program, and the Federal submit comments on or before October AGENCY: Office of the Under Secretary Perkins Loan Program apply for (Personnel and Readiness), Department 3, 2011. discharge of a loan based on school of Defense. ADDRESSES: Comments regarding burden closure or false certification of loan and/or the collection activity ACTION: Notice. eligibility in accordance with federal requirements should be electronically regulations. The holders of the mailed to [email protected] or SUMMARY: The Servicemembers Civil borrower’s loans use the information mailed to U.S. Department of Education, Relief Act, as codified at 50 U.S.C. App. collected on these forms to determine 400 Maryland Avenue, SW., LBJ, 531, prohibits a landlord from evicting whether a borrower meets the regulatory Washington, DC 20202–4537. Please a Service member (or the Service eligibility requirements for loan note that written comments received in member’s family) from a residence discharge. response to this notice will be during a period of military service Copies of the proposed information considered public records. except by court order. The law as collection request may be accessed from originally passed by Congress applied to SUPPLEMENTARY INFORMATION: Section http://edicsweb.ed.gov, by selecting the dwellings with monthly rents of $2400 3506 of the Paperwork Reduction Act of ‘‘Browse Pending Collections’’ link and or less. The law requires the Department 1995 (44 U.S.C. chapter 35) requires that by clicking on link number 4690. When of Defense to adjust this amount Federal agencies provide interested you access the information collection, annually to reflect inflation and to parties an early opportunity to comment click on ‘‘Download Attachments’’ to publish the new amount in the Federal on information collection requests. The view. Written requests for information Register. We have applied the inflation Director, Information Collection should be addressed to U.S. Department index required by the statute. The Clearance Division, Regulatory of Education, 400 Maryland Avenue, maximum monthly rental amount for 50 Information Management Services, SW., LBJ, Washington, DC 20202–4537. U.S.C. App. 531(a)(1)(A)(ii) is $2,975.54. Office of Management, publishes this Requests may also be electronically notice containing proposed information mailed to [email protected] or faxed DATES: Effective Date: January 1, 2011. collection requests at the beginning of to 202–401–0920. Please specify the FOR FURTHER INFORMATION CONTACT: the Departmental review of the complete title of the information Colonel Shawn Shumake, Office of the information collection. The Department collection and OMB Control Number Under Secretary of Defense for of Education is especially interested in when making your request. Personnel and Readiness, (703) 697– public comment addressing the Individuals who use a 3387. following issues: (1) Is this collection telecommunications device for the deaf

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47178 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

(TDD) may call the Federal Information 1. Federal eRulemaking Portal: General Counsel, GC–71, 1000 Relay Service (FIRS) at 1–800–877– http://www.regulations.gov. Follow the Independence Avenue, SW., 8339. instructions for submitting comments. Washington, DC 20585. Telephone: [FR Doc. 2011–19711 Filed 8–3–11; 8:45 am] 2. E-mail: LightingSys-2011-TP- (202) 586–7796. E-mail: BILLING CODE 4000–01–P [email protected]. Include EERE–2011– [email protected]. BT–TP–0041 and/or RIN 1904–AC50 in SUPPLEMENTARY INFORMATION: the subject line of the message. I. Statutory Authority DEPARTMENT OF ENERGY 3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building The Energy Policy Act of 1992 (EPAct [Docket Number EERE–2011–BT–TP–0041] Technologies Program, Mailstop EE–2J, 1992, Pub. L. 102–486), Section 126, RIN 1904–AC50 Request for Information for Lighting required DOE to support and monitor a Systems, EERE–2011–BT–TP–0041 and/ national voluntary testing and Energy Efficiency Program: Test or RIN 1904–AC50, 1000 Independence information program for widely used Procedure for Lighting Systems Avenue, SW., Washington, DC 20585– luminaires that have significant energy (Luminaires) 0121. Phone: (202) 586–2945. Please savings potential, and to issue a submit one signed paper original. AGENCY: Office of Energy Efficiency and determination as to whether the 4. Hand Delivery/Courier: Ms. Brenda Renewable Energy, Department of program developed was consistent with Edwards, U.S. Department of Energy, Energy. those objectives. The program was Building Technologies Program, 6th required to include specifications for ACTION: Request for Information. Floor, 950 L’Enfant Plaza, SW., test procedures and labels that will SUMMARY: The U.S. Department of Washington, DC 20024. Phone: (202) enable purchasers of such luminaires to Energy (‘‘DOE’’ or the ‘‘Department’’) is 586–2945. Please submit one signed make more informed decisions about currently evaluating energy efficiency paper original. the energy efficiency and costs of test procedures for luminaires (also 5. Instructions: All submissions alternative products. If DOE determines referred to herein as lighting systems) received must include the agency name that a program of voluntary national and collecting information for the and docket number. testing and information for luminaires labeling of such products. DOE Docket: For access to the docket to consistent with those objectives has not recognizes that well-designed test read background documents or been developed, EPAct 1992 directs procedures are important to produce comments received, visit the U.S. DOE to develop test procedures for reliable, repeatable, and consistent test Department of Energy, Building luminaires. EPAct 1992 also provides results and that labeling assists Technologies Program, 950 L’Enfant for labels for these products. (42 U.S.C. informed consumer choice. The existing Plaza, SW., Suite 600, Washington, DC, 6292 note) The Energy Policy Act of luminaire test procedures DOE is 20024, (202) 586–2945, between 9 a.m. 2005 (EPAct 2005, Pub. L. 109–58) and evaluating include those already and 4 p.m., Monday through Friday, the Energy Independence and Security established by the National Electrical except Federal holidays. Please call Ms. Act of 2007 established Federal Manufacturers Association (NEMA) and Brenda Edwards at the above telephone efficiency standards for certain classes ENERGY STAR, which include by number for additional information. of luminaires—torchieres, ceiling fan reference numerous test procedures The docket also is available for review light kits, exit signs, traffic signals, and established by the American National at regulations.gov, including Federal metal halide lamp fixtures—but Standards Institute (ANSI), the Register notices, and other supporting currently there are no DOE-approved Illuminating Engineering Society of documents/materials. All documents in test procedures for most widely-used North America (IESNA), the the docket are listed in the classes of luminaires. There are also no International Commission on regulations.gov index. However, not all labeling requirements for these Illumination (Commission documents listed in the index may be products. Internationale de l’Eclairage (CIE)), and publicly available, such as information the Illuminating Engineering Society of that is exempt from public disclosure. II. Background North America (IESNA). To inform A link to the docket web page can be In April 1992, the National Lighting interested parties, facilitate its found at: http://www.eere.energy.gov/ Collaborative (NLC or Collaborative) consideration of appropriate test buildings/appliance_standards/ initiated development of a testing and procedures, and collect information on commercial/lighting_systems.html. This information program as described under labeling, DOE seeks comment and web page contains a link to the docket EPAct 1992. The Collaborative, requests information related to test for this notice on the regulations.gov administered by NEMA, included procedures and labels for lighting site. The regulations.gov web page representatives from environmental systems based on industry-standard contains instructions on how to access organizations, State governments, the procedures and practices for luminaires. all documents, including public lighting industry, research entities, and In particular, DOE is interested in if and comments, in the docket. utilities.1 In 1995, the NLC issued a how test procedures and labels may FOR FURTHER INFORMATION CONTACT: Dr. 1 include controls for powering the Tina Kaarsberg, U.S. Department of In 1999, membership included the following luminaire on or off depending on time organizations: Environmental groups were Energy, Office of Energy Efficiency and represented by the Alliance to Save Energy, the of day, daylight or occupancy sensor Renewable Energy, Building American Council for an Energy-Efficient Economy, readings and other factors. Technologies Program, EE–2J, 1000 and the Natural Resources Defense Council. State DATES: Written comments and and Federal government representatives included Independence Avenue, SW., the California Energy Commission, the National information are requested by September Washington, DC 20585–0121. Institute of Standards and Technology (NIST), the 19, 2011. Telephone: (202) 287–1393. E-mail: New York State Energy Research and Development ADDRESSES: Interested persons may [email protected]. Authority, DOE, and the US Environmental Protection Agency. Lighting and related industry submit comments in writing, identified In the Office of General Counsel, organizations were represented by the American by docket number EERE–2011–BT–TP– contact Ms. Elizabeth Kohl, U.S. Lighting Association, the American Society of 0041, by any of the following methods: Department of Energy, Office of the Heating, Refrigerating and Air-Conditioning

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47179

report on the program to DOE that Intensity Discharge Industrial Although it has not yet included them served as the basis of DOE’s provisional Luminaires. in its own industry procedures, NEMA determination on whether the program The Environmental Protection Agency has argued generally that lighting met the objectives set forth in EPAct (EPA) created a voluntary specification standards should incorporate controls, 1992 (61 FR 10742, March 15, 1996). for luminaires under its ENERGY STAR not just source efficacies, because of DOE found that the program would be program. The ENERGY STAR their great potential for much larger consistent with the objectives set forth specification (http:// savings in major applications. On May in EPAct 1992 when it had been www.energystar.gov/ 10, 2011, NEMA submitted public demonstrated to DOE that the program index.cfm?c=new_specs.luminaires) comments on the current fluorescent had been ‘‘fully implemented so that includes a voluntary standard but does ballast rulemaking noting that a ‘‘ballast energy efficiency information about not generally include controls. The that is switched off or dimmed uses luminaires is widely available to ENERGY STAR test procedures much less energy and can result in luminaire purchasers’’. Although the reference industry test procedures for increased user satisfaction’’ (Document 2 NLC continued activities through 2001, fluorescent, high-intensity discharge ID: EERE–2007–BT–STD–0016– DOE has not yet issued a final and solid-state luminaires, none of 0039.1).7 On May 27, 2010, NEMA 3 determination regarding the program. which currently include controls.4 submitted public comments for the high-intensity discharge (HID) lamps a. Evolution of National Luminaire In 2008, NEMA introduced its Target determination arguing that ‘‘industry Testing and Definitions Efficacy Rating (TER), documented in believes that the DOE will find much NEMA standard LE 6, and adds to the In response to the EPAct 1992 more energy savings from HID systems LE 5 series efficacy calculation a factor requirement that DOE provide financial with the proper application of electronic to address the fraction of light leaving and technical assistance to support a ballasts and/or intelligent controls the luminaire that is delivered to the voluntary national testing and [versus] standards that increase average intended target surface. LE 6 is intended information program, NEMA developed, HID lamp efficiencies’’ (Document ID: to supersede the LE 5 series ratings for and the NLC incorporated into the EERE–2006–DET–0112–0021.1).8 In a all purposes other than ‘‘rating a fixture program, three separate industry May 15, 2008, public workshop for in accordance with EPAct 1992’’. The standards applicable to luminaires along California’s metal halide luminaires TER addresses major classes of with their associated test procedures: rulemaking, NEMA proposed using Æ commercial, residential, and industrial LE 5—Procedure for Determining integral controls as an alternative luminaires used for both indoor and Luminaire Efficacy Ratings for compliance option to high efficiency outdoor lighting, but does not include Fluorescent Luminaires. ballasts and later worked with the Æ controls. LE 5A—Procedure for Determining Pacific Gas and Electric Company, the Luminaire Efficacy Ratings for b. Lighting System/Luminaire Controls American Council for an Energy Commercial, Non-Residential Downlight Efficient Economy, and the California Luminaires. The EPAct 1992 requirements for Energy Commission to develop that Æ LE 5B—Procedure for Determining luminaires discussed above pertained to option for the final rule.9 Luminaire Efficacy Ratings for High- the energy efficiency of entire lighting The American Council for an Energy systems, as opposed to just lamps or Efficient Economy (ACEEE) also Engineers, the Association of Energy Engineers, the lamp and ballast systems. The encouraged DOE to take a systems-based Building Owners and Managers Association, the Illuminating Engineering Society of Illuminating Engineering Society of North America, approach to lighting in its May 27, 2010 the International Association of Lighting Designers, North America defines luminaire as a comments on the HID rulemaking: ‘‘In the National Association of Lighting Management ‘‘complete lighting unit consisting of general, we would like to see DOE Companies, the National Association of Electrical lamp(s) and ballast(s) (when applicable) combine rulemakings—or at least Distributors, the National Association of State together with the parts designed to Energy Officials, the National Electrical Contractors analysis—whenever possible for Association, and the National Electrical distribute the light, position and protect individual lighting components that are Manufacturers Association. Testing and research the lamps, and to connect the lamp(s) to operated together in a system. This 56 entities included the Lawrence Berkeley National the power supply.’’ The Energy Policy would allow for greater efficiencies in Laboratory, the Lighting Research Center, and the and Conservation Act of 1975 (EPCA), Lighting Research Institute. Utilities were the analytical effort, better consideration represented by the Edison Electric Institute and the as amended, adopts the same definition and coordination of the impacts of Electric Power Research Institute. for luminaires with fluorescent light standards changes for one component 2 In 1999 the Collaborative issued a new Report sources: ‘‘a complete lighting unit on overall system performance, and on the Status of the Voluntary National Testing and consisting of a fluorescent lamp or Information Program for Luminaires, which potentially for more effective final described the program and urged DOE to approve lamps, together with parts designed to standards from an energy savings, it. The Program included luminaire test procedures distribute the light, to position and economic, and environmental for widely used fluorescent and HID luminaires, a protect such lamps, and to connect such perspective.’’ complaint resolution process to resolve disputes lamps to the power supply through the about Luminaire Efficacy Rating (LER) values, and C. Evaluation of Luminaire/Lighting an information program. In addition, the Program ballast. Controls are considered under recommended that testing be carried out by a these definitions as the part of the Systems Test Procedures laboratory accredited by NIST’s National Voluntary lighting system that connects the DOE is evaluating whether test Laboratory Accreditation Program. lamp(s) to the power supply. procedures for luminaires/lighting 3 NEMA’s current Lighting Industry Director was unaware of any program activity in recent years. 4 ® 7 LBNL staff who participated on the NLC stated that ENERGY STAR Program Requirements Available online: http://www.regulations.gov/ the last meeting was in 2001. While conceptually Product Specification for Luminaires (Light #!documentDetail;D=EERE-2007-BT-STD-0016- related, NEMA’s subsequent LE 6 activity was Fixtures) Eligibility Criteria Version 1.0. 0039. organizationally unrelated to the NLC. See http:// 5 Rea, M.S. (Editor), Illuminating Engineering 8 Available online: http://www.regulations.gov/ www.nema.org/stds/le5.cfm (‘‘When rating a fixture Society of North America, IESNA Lighting #!searchResults;rpp=10;po=0;s=DET-0112-0021. in accordance with EPAct 1992, use this standard. Handbook, 9th Edition, 2000. 9 California Energy Commission, 2008 Appliance For other purposes, see NEMA LE 6, a newer 6 This ANSI/IESNA definition of luminaire has Efficiency Rulemaking: Staff Report, Phase I, Part standard for luminaire efficacy that supersedes the also been accepted by ENERGY STAR® and the B, Docket #08–AEER–1B, Report #CEE–400–2008– LE 5 series.’’). California Energy Commission. 023, page 7.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47180 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

systems may be based on existing 1. Definitions. DOE invites comments long-term firm hydroelectric resources industry rating systems and test on the definition of lighting systems, of the Pick-Sloan Missouri Basin procedures such as NEMA’s LE 6 rating luminaires and other relevant terms. Program—Eastern Division (P–SMBP— system, (which covers 22 classes of 2. Lighting systems/luminaire test ED) beyond December 31, 2020, when interior and exterior luminaires) and procedures and labeling. DOE is Western’s Firm Electric Service EPA’s ENERGY STAR luminaire particularly interested in details on contracts associated with the current specifications (which covers a range of industry, state, and international test marketing plan will expire. The residential and commercial direction procedures and labels including, where proposed 2021 PMI extends the current and non-directional products) and is feasible: Luminaire classes covered, P–SMBP—ED marketing plan, with based on IESNA test procedures (LM– fraction of current luminaire sales amendments to the contract term and 46, LM–41, LM–10–11, and LM–31–11). covered, percentage of products covered resource pools marketing plan DOE is considering whether to define by the program currently being tested principles. The comment period for the certain lighting systems and controls and reported on; the method used to proposed 2021 PMI ended on May 4, terminology to enable development of inform purchasers of covered luminaires 2011. Western received a comment an appropriate national test procedure. about the results of the testing and other requesting additional time to energy and performance related supplement comments on the proposed D. Collection of Information on information. 2021 PMI. This Federal Register notice Luminaire/Lighting Systems Labeling. 3. Inclusion of controls in lighting re-opens the written comment period for DOE is also collecting information on systems test procedures and labeling. the proposed 2021 PMI until September whether labels for luminaires/lighting DOE requests comments on means to 6, 2011. systems may be based on industry rating include controls in test procedures and DATES: Entities interested in systems such as those described in the whether the inclusion of controls in commenting on the proposed 2021 PMI previous section. labels would provide consumers with must submit written comments to useful information. Western’s Upper Great Plains Regional E. Conclusion 4. The current status of labeling Office. Western must receive written comments by 4 p.m., M.D.T., on The Department recognizes that programs. DOE is particularly interested September 6, 2011. Western reserves the voluntary luminaire test procedures and in what products are currently sold with right to not consider any comments that labels exist and that the industry is luminaire efficiency labels, what are received after the prescribed date increasingly using controls technologies fraction of the market represents, what and time. to reduce lighting energy use. DOE the leading labels are and what therefore requests information on recent information the labels contain. ADDRESSES: Submit written comments developments in luminaire testing and DOE is also interested in comments regarding the proposed 2021 PMI to labeling programs and how energy on other relevant issues that Robert J. Harris, Regional Manager, savings from controls are addressed participants think would affect test Upper Great Plains Region, Western therein. procedures and labeling applicable to Area Power Administration, 2900 4th lighting systems or luminaires. Avenue North, Billings, MT 59101– III. Public Participation Issued in Washington, DC, on July 29, 1266. Comments may also be faxed to (406) 255–2900 or e-mailed to A. Submission of Information 2011. Kathleen Hogan, [email protected]. DOE will accept information and data Deputy Assistant Secretary for Energy FOR FURTHER INFORMATION CONTACT: John in response to this Request for Efficiency, Office of Technology A. Pankratz, Public Utilities Specialist, Information as provided in the DATES Development, Energy Efficiency and Upper Great Plains Region, Western section above. Information submitted to Renewable Energy. Area Power Administration, 2900 4th the Department by e-mail should be [FR Doc. 2011–19780 Filed 8–3–11; 8:45 am] Avenue North, Billings, MT 59101– provided in WordPerfect, Microsoft BILLING CODE 6450–01–P 1266, telephone (406) 255–2932, e-mail Word, PDF, or text file format. Those [email protected]. responding should avoid the use of SUPPLEMENTARY INFORMATION: Western special characters or any form of DEPARTMENT OF ENERGY initiated 2021 PMI discussions with P– encryption, and wherever possible, SMBP—ED firm power customers in comments should include the electronic Western Area Power Administration November 2010 by hosting meetings, signature of the author. Comments Pick-Sloan Missouri Basin Program— including one conference call meeting, submitted to the Department by mail or throughout the Upper Great Plains hand delivery/courier should include Eastern Division—2021 Power Marketing Initiative Proposal Region. The meetings provided all firm one signed original paper copy. No power customers the opportunity to telefacsimiles will be accepted. AGENCY: Western Area Power review current marketing plan Comments submitted in response to this Administration, DOE. principles and provide informal input to notice will become a matter of public ACTION: Notice of re-opening of Western for consideration in the 2021 record and will be made publicly comment period. PMI proposal. Western sent a letter to available. all firm power customers inviting them B. Issues on Which DOE Seeks SUMMARY: Western Area Power to attend these meetings. In addition, Information Administration (Western), Upper Great due to the special and unique Plains Region, a Federal power relationship between the United States Although comments are welcome on marketing agency of the Department of and tribal governments, Western all issues discussed in this notice, DOE Energy (DOE) published the proposed initiated government-to-government is particularly interested in the 2021 Power Marketing Initiative (2021 consultation by sending a certified letter following information and PMI) in the Federal Register on March to each tribal firm power customer, substantiating data on existing test 4, 2011. The proposed 2021 PMI inviting them to attend Native procedures and labels for luminaires. provides the basis for marketing the American-focused meetings. As part of,

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47181

and in order to facilitate ongoing Stations (PAMS) Network Re- program in the context of the most consultation, Western hosted Native engineering project. recently revised ozone NAAQS. The American-focused meetings, including DATES: The public teleconference will CASAC Air Monitoring and Methods one conference call meeting, throughout be held on August 29, 2011 from 9 a.m. Subcommittee (AMMS) has considered the Upper Great Plains Region. to 11 a.m. (Eastern Daylight Time). OAR’s request and prepared an advisory The proposed 2021 PMI (76 FR 12104) ADDRESSES: The public teleconference report that will undergo quality review was published in the Federal Register will be conducted by telephone only. by the chartered CASAC. The AMMS held three public on March 4, 2011. Western mailed the FOR FURTHER INFORMATION CONTACT: Any teleconference calls on May 16, May 17, proposed 2021 PMI Federal Register member of the public wishing to obtain and July 18, 2011 to review EPA’s draft notice to all firm power customers and general information concerning the plans for PAMS Network Re-engineering other interested parties on March 7, public teleconference may contact Dr. and discuss its draft peer review report. 2011. As part of ongoing government-to- Holly Stallworth, Designated Federal [Federal Register Notices dated April government consultation, Western Officer (DFO). Dr. Stallworth may be 15, 2011 (76 FR 21345–21346) and July representatives also contacted tribal contacted at the EPA Science Advisory 5, 2011 (76 FR 39103–39104)]. Materials firm power customers directly to Board (1400R), U.S. Environmental from these teleconference calls are discuss the proposed 2021 PMI Federal Protection Agency, 1200 Pennsylvania posted on the CASAC Web site at Register notice, including the Avenue, NW., Washington, DC 20460; http://yosemite.epa.gov/sab/ information and comment forum dates or by telephone/voice mail at (202) 564– sabproduct.nsf/bf498bd32 and times. Western held public 2073; fax at (202) 565–2098; or e-mail at a1c7fdf85257242006dd6cb/6a62b0219 information and comment forums on [email protected]. General d19df358525785c0064e71b!Open April 13, 14, and 20, 2011, to accept oral information concerning the EPA CASAC Document&Date=2011-05-16, http:// and written comments on the proposed can be found on the EPA Web site at yosemite.epa.gov/sab/sabproduct.nsf/ 2021 PMI. The proposed 2021 PMI http://www.epa.gov/casac. bf498bd32a1c7fdf85257242006dd6cb/ comment period ended on May 4, 2011. SUPPLEMENTARY INFORMATION: Western received a comment on May 6abbc18d956a2b768525785c00663487! Background: The CASAC was OpenDocument&Date=2011-05-17, and 4, 2011, from a Native American tribe established pursuant to the Clean Air requesting further government-to- http://yosemite.epa.gov/sab/ Act (CAA) Amendments of 1977, sabproduct.nsf/bf498bd32a1c7fdf85257 government consultation and additional codified at 42 U.S.C. 7409D(d)(2), to time to provide supplemental comments 242006dd6cb/001ebec35a29e6d5852578 provide advice, information, and be005fc20f!OpenDocument&Date=2011- on the proposed 2021 PMI. recommendations to the Administrator Western is granting the request for 07-18. Background information about on the scientific and technical aspects of additional time for all entities to the CASAC advisory activity can be issues related to the criteria for air provide new and or supplemental found on the CASAC Web site at http:// quality standards, research related to air comments and by this Federal Register yosemite.epa.gov/sab/sabproduct.nsf/ quality, sources of air pollution, and the _ notice is re-opening the comment period fedrgstr activites/PAMS%20Re- strategies to attain and maintain air for the proposed 2021 PMI until 4 p.m. engineering?OpenDocument. quality standards and to prevent M.D.T., on September 6, 2011. Western Availability of Meeting Materials: The significant deterioration of air quality. deems any comments submitted agenda and other materials in support of The CASAC is a Federal Advisory between May 4, 2011, and September 6, the teleconference will be placed on the Committee chartered under the Federal 2011 to be timely submitted. CASAC Web site at http://www.epa.gov/ Advisory Committee Act (FACA), 5 casac in advance of the teleconference. Dated: July 27, 2011. U.S.C., App. 2. Pursuant to FACA and Procedures for Providing Public Input: Timothy J. Meeks, EPA policy, notice is hereby given that Public comment for consideration by Administrator. the CASAC will hold a public EPA’s Federal advisory committees and [FR Doc. 2011–19777 Filed 8–3–11; 8:45 am] teleconference to conduct a quality panels has a different purpose from BILLING CODE 6450–01–P review of a CASAC draft report entitled public comment provided to EPA Review of EPA’s Photochemical program offices. Therefore, the process Assessment Monitoring Stations (PAMS) for submitting comments to a Federal ENVIRONMENTAL PROTECTION Network Re-engineering project. The advisory committee is different from the AGENCY CASAC will comply with the provisions process used to submit comments to an of FACA and all appropriate SAB Staff EPA program office. [FRL–9448–2] Office procedural policies. Federal advisory committees and EPA’s Office of Air and Radiation panels, including scientific advisory Science Advisory Board Staff Office; (OAR) designed the PAMS network in committees, provide independent Notification of a Public Teleconference the 1990’s to provide comprehensive advice to EPA. Members of the public of the Chartered Clean Air Scientific monitoring data in areas not in can submit comments for a Federal Advisory Committee attainment for ozone. The PAMS advisory committee to consider as it AGENCY: Environmental Protection Network monitors for ozone and its develops advice for EPA. Input from the Agency (EPA). precursors, such as oxides of nitrogen public to the CASAC will have the most ACTION: Notice. and volatile organic compounds and impact if it provides specific scientific tracks progress for ozone control or technical information or analysis for SUMMARY: The EPA Science Advisory strategies. Since the promulgation of the CASAC panels to consider or if it relates Board (SAB) Staff Office announces a PAMS network, there have been to the clarity or accuracy of the public teleconference of the Chartered changes to the ozone National Ambient technical information. Members of the Clean Air Scientific Advisory Air Quality Standards (NAAQS). OAR public wishing to provide comment Committee (CASAC) on August 29, 2011 requested CASAC advice on options and should contact the Designated Federal to conduct a quality review of a draft ideas being considered to potentially Officer directly. CASAC report, Review of EPA’s revise and improve the scientific and Oral Statements: In general, Photochemical Assessment Monitoring technical aspects of EPA’s PAMS individuals or groups requesting an oral

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47182 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

presentation at a teleconference will be Financial Institutions Reform, Recovery, You may also send a written request limited to three minutes. Those and Enforcement Act of 1989, as via U.S. Mail, fax or commercial carrier interested in being placed on the public amended, notice is hereby given that the to the Executive Director of the ASC, speakers list for the August 29, 2011 Appraisal Subcommittee (ASC) will 1401 H Street, NW., Ste 760, teleconference should contact Dr. meet in closed session: Washington, DC 20005. The fax number Stallworth at the contact information Location: OCC—250 E. Street, SW., is 202–289–4101. Your request must be provided above no later than August 22, Room 7C/7CA, Washington, DC 20219. received no later than 4:30 p.m., E.T., on 2011. Date: August 10, 2011. the Monday prior to the meeting. Written Statements: Written Time: Immediately following the ASC Attendees must have a valid statements should be supplied to the open session. government-issued photo ID and must DFO via e-mail at the contact Status: Closed. agree to submit to reasonable security information noted above by August 22, Matters To Be Considered: July 21, measures. The meeting space is 2011 for the teleconference so that the 2011 minutes—Closed Session. intended to accommodate public information may be made available to Dated: August 1, 2011. attendees. However, if the space will not the CASAC members for their James R. Park, accommodate all requests, the ASC may consideration. Written statements Executive Director. refuse attendance on that reasonable should be supplied in one of the [FR Doc. 2011–19786 Filed 8–3–11; 8:45 am] basis. The use of any video or audio following electronic formats: Adobe BILLING CODE P tape recording device, photographing Acrobat PDF, MS Word, MS device, or any other electronic or PowerPoint, or Rich Text files in IBM– mechanical device designed for similar PC/Windows 98/2000/XP format. It is FEDERAL FINANCIAL INSTITUTIONS purposes is prohibited at ASC meetings. the SAB Staff Office general policy to EXAMINATION COUNCIL Dated: August 1, 2011. post public comments on the Web page [Docket No. AS11–21] James R. Park, for the advisory meeting or teleconference. Submitters are requested Executive Director. Appraisal Subcommittee Notice of [FR Doc. 2011–19787 Filed 8–3–11; 8:45 am] to provide an unsigned version of each Meeting document because the SAB Staff Office BILLING CODE P does not publish documents with AGENCY: Appraisal Subcommittee of the signatures on its Web sites. Members of Federal Financial Institutions the public should be aware that their Examination Council. FEDERAL MARITIME COMMISSION personal contact information, if ACTION: Notice of meeting. included in any written comments, may Ocean Transportation Intermediary be posted to the SAB Web site. Description: In accordance with License Applicants Copyrighted material will not be posted Section 1104 (b) of Title XI of the Financial Institutions Reform, Recovery, Notice is hereby given that the without explicit permission of the following applicants have filed with the copyright holder. and Enforcement Act of 1989, as amended, notice is hereby given that the Federal Maritime Commission an Accessibility: For information on application for a license as a Non- access or services for individuals with Appraisal Subcommittee (ASC) will meet in open session for its regular Vessel-Operating Common Carrier disabilities, please contact Dr. (NVO) and/or Ocean Freight Forwarder Stallworth at (202) 564–2073 or meeting: Location: OCC—250 E Street, SW, (OFF)—Ocean Transportation [email protected]. To request Intermediary (OTI) pursuant to section accommodation of a disability, please Room 7C/7CA. Washington, DC 20219. Date: August 10, 2011. 19 of the Shipping Act of 1984 as contact Dr. Stallworth preferably at least Time: 10:30 a.m. amended (46 U.S.C. Chapter 409 and 46 ten days prior to the teleconference to Status: Open. CFR 515). Notice is also hereby given of give EPA as much time as possible to Matters To Be Considered: the filing of applications to amend an process your request. Summary Agenda: July 21, 2011 existing OTI license or the Qualifying Dated: July 28, 2011. minutes—Open Session. Individual (QI) for a license. Vanessa T. Vu, (No substantive discussion of the Interested persons may contact the Director, EPA Science Advisory Board Staff above items is anticipated. These Office of Transportation Intermediaries, Office. matters will be resolved with a single Federal Maritime Commission, [FR Doc. 2011–19805 Filed 8–3–11; 8:45 am] vote unless a member of the ASC Washington, DC 20573, by telephone at requests that an item be moved to the BILLING CODE 6560–50–P 202–523–5843 or by e-mail at discussion agenda.) [email protected]. Discussion Agenda: Sicomex International Corp (OFF & AQB Compliance Status for Licensed NVO), 8458 NW 70th Street, Miami, FEDERAL FINANCIAL INSTITUTIONS Appraisers Listed on the National EXAMINATION COUNCIL FL 33166, Officers: Angelica Boscan, Registry; Treasurer (Qualifying Individual), Appraisal Foundation April 2011 [Docket No. AS11–22] Tayme Cabeza, President, Application Grant Reimbursement Request; Delaware Compliance Review; Type: New OFF & NVO License. Appraisal Subcommittee Notice of Rado Logistics, Inc. (OFF & NVO), 2251 Meeting Illinois Compliance Review; Puerto Rico Compliance Review; Sylvan Road, Suite 400, East Point, AGENCY: Appraisal Subcommittee of the Utah Compliance Review; GA 30344, Officer: Lovett Brooks, Federal Financial Institutions Virgin Islands Compliance Review. CEO/Secretary/CFO (Qualifying Examination Council. How to Attend and Observe an ASC Individual), Application Type: New ACTION: Notice of meeting. Meeting: OFF & NVO License. E-mail your name, organization and Transit Air Cargo, Inc. (OFF & NVO), Description: In accordance with contact information to 2204 E 4th Street, Santa Ana, CA Section 1104 (b) of Title XI of the [email protected]. 92705, Officers: Gary Syner, CEO

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47183

(Qualifying Individual), Gul Individual), Won Kyung Kim, EZ Logistics LLC (NVO), 120 Sylvan Khodayar, President/Secretary, President/CEO/CFO, Application Avenue, Suite 3, Englewood Cliffs, NJ Application Type: New OFF & NVO Type: New OFF & NVO License. 07632, Officers: Ying Zhao, Member License. Angels Auto Export Inc. (NVO), 2930 (Qualifying Individual), Jennifer Jet Freight Global Co., LTD. (NVO), 312 South 50th Street, Tampa, FL 33619, Zheng, Member, Application Type: QI Emerald Drive, Streamwood, IL Officers: Margara L. Barillas, Change. 60107, Officer: Tai-Yu Liu, President/ President (Qualifying Individual), Dated: August 1, 2011. Secretary/Treasurer (Qualifying Danihel I. Barillas, Secretary, Karen V. Gregory, Individual), Application Type: New Application Type: New NVO License. Secretary. NVO License. Russell A. Farrow (U.S.) Inc. (OFF & KT Logistics, Inc. (OFF & NVO), 1915 NVO), 4950 West Dickman Road, [FR Doc. 2011–19800 Filed 8–3–11; 8:45 am] McKinley Avenue, Suite E, La Verne, Battle Creek, MI 49037, Officers: BILLING CODE 6730–01–P CA 91750, Officers: Mary Ann Ruiz, Dustin H. King, Vice President COO (Qualifying Individual), James (Qualifying Individual), Tom Amakasu, CFO/President, Application Kowalski, President, Application FEDERAL MINE SAFETY AND HEALTH Type: Add NVO Services. Type: License Transfer. REVIEW COMMISSION Speedmark Transportation, Inc. (NVO), Ever Line Logistics Inc. (OFF & NVO), Sunshine Act Notice 1525 Adrian Road, Burlingame, CA 147–35 Farmers Blvd., Suite 208, 94010, Officers: David Driscoll, Jamaica, NY 11434, Officer: Caihong July 28, 2011. Director-Corporate Affairs (USA) Yang, President/Secretary (Qualifying (Qualifying Individual), Anthony TIME AND DATE: 12 noon, Thursday, Individual), Application Type: New August 4, 2011. Tsou, President, Application Type: QI OFF & NVO License. PLACE: The Richard V. Backley Hearing Change. Sprint Global Inc. (NVO), 104 Room, 9th Floor, 601 New Jersey Airbridge Corp. (OFF & NVO), 147–03 Hockorywood Blvd., Cary, NC 27519, Avenue, NW., Washington, DC. 182nd Street, Jamaica, NY 11413, Officers: Jagadeeswari Officer: Byung (Brian) Kim, President/ Chandramouleeswaran, President STATUS: Closed. Secretary/Treasurer (Qualifying (Qualifying Individual), Saraswathi MATTERS TO BE CONSIDERED: The Individual), Application Type: New Lakshmanan, Secretary, Application Commission will consider the following OFF & NVO License. Type: New NVO License. in a closed session: Big Ridge, Inc., Cargo Alliance Inc. (OFF & NVO), 583 VR Logistics Incorporated (OFF & NVO), Docket Nos. LAKE 2011–116–R, et al., Monterey Pass Road, Suite C, 30 Sheryl Drive, Edison, NJ 08820, and Peabody Midwest Mining, LLC, Monterey Park, CA 91754, Officer: Li Officers: Govind Shagat, Vice Docket Nos. LAKE 2011–118–R, et al. Chen, President (Qualifying President/Treasurer (Qualifying (Issues include whether the Commission Individual), Application Type: Add Individual), Vanita Bhagat, President, should grant an application for OFF Services. Application Type: New OFF & NVO temporary relief from orders issued by SDV (USA) Inc. (OFF & NVO), 150–10 License. the Secretary of Labor requiring that 132nd Avenue, Jamaica, NY 11434, mine operators provide certain Officers: Dorsey Piscatelli, Vice Green World Cargo, LLC (NVO), 150–30 132nd Avenue, Suite 302, Jamaica, information and records to the President (Qualifying Individual), Secretary.) Philippe Naudin, Director/President, NY 11434, Officers: Harjinder P. Singh, President (Qualifying This meeting will be closed to the Application Type: QI Change. public in accordance with the Winsys Logistics Inc. (NVO), 2628 Individual), Salvatore J. Stile, II, Manager, Application Type: New exemption in 5 U.S.C. 552b(c)(10) that Walnut Grove Avenue, Suite A, is applicable to the consideration of a Rosemead, CA 91770, Officer: Winsy NVO License. Bandai Logipal America, Inc. (OFF & ‘‘particular case of formal agency Chan, President/Secretary/CFO adjudication.’’ (Qualifying Individual), Application NVO), 5551 Katella Avenue, Cypress, Type: New NVO License. CA 90630, Officers: Katsumi Imagane, CONTACT PERSON FOR MORE INFO: Jean Arrival Logistics Inc. (NVO), 14553 President (Qualifying Individual), Ellen (202) 434–9950/(202) 708–9300 White Stallion Court, Chino hills, CA Norio Baba, CEO, Application Type: for TDD Relay/1–800–877–8339 for toll 91709, Officer: Tony Lu, President New OFF & NVO License. free. Amerifreight (N.A.), Inc. (OFF & NVO), (Qualifying Individual), Application Emogene Johnson, 218 Machlin Court, Walnut, CA Type: New NVO License. Administrative Assistant. Modal Trade USA, Inc. (OFF & NVO), 91789, Officer: Lionel Bao, President [FR Doc. 2011–19969 Filed 8–2–11; 4:15 pm] 8200 NW 41st Street, Suite 305, (Qualifying Individual), Application Miami, FL 33166, Officers: Paulina Type: New OFF & NVO License. BILLING CODE 6735–01–P Yusta Castillo, Secretary (Qualifying Managed Logistics Services, Individual), Diego Urenda, President, Incorporation (OFF & NVO), 20603 Application Type: New OFF & NVO Wayne River Court, Cypress, TX FEDERAL TRADE COMMISSION 77433, Officers: Tiffni Clement, License. Agency Information Collection Wing Bridge Shipping Company (OFF & President (Qualifying Individual), Activities; Submission for OMB NVO), 5155 Corporate Way, Unit B, Teresa Schouster, Secretary/ Review; Comment Request; Extension Jupiter, FL 33458, Officer: Craig Treasurer, Application Type: New Firing, President (Qualifying OFF & NVO License. AGENCY: Federal Trade Commission Individual), Application Type: New Medi Trade Shipping Company, LLC (‘‘Commission’’ or ‘‘FTC’’). OFF & NVO License. (OFF & NVO), 2711 Centerville Road, ACTION: Notice and request for comment. Green Integrated Logistics, Inc. (OFF & Suite 400, Wilmington, DE 19808, NVO), 16210 South Maple Avenue, Officer: Dina Singer-Badawi, Member SUMMARY: The information collection Gardena, CA 90248, Officers: Hyung (Qualifying Individual), Application requirements described below will be Man Han, Secretary (Qualifying Type: New OFF & NVO License. submitted to the Office of Management

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47184 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

and Budget (‘‘OMB’’) for review, as seeking OMB approval to renew the pre- 46(f), and FTC Rule 4.10(a)(2), 16 CFR required by the Paperwork Reduction existing clearance for the Rule. For more 4.10(a)(2). In particular, don’t include Act (‘‘PRA’’). The FTC is seeking public details about Funeral Rule requirements competitively sensitive information comments on its proposal to extend and the basis for the calculations such as costs, sales statistics, through September 30, 2014 the current summarized below, see 76 FR 26297. inventories, formulas, patterns, devices, Paperwork Reduction Act clearance for Estimated Annual Burden: 160,782 manufacturing processes, or customer information collection requirements hours (19,902 hours for recordkeeping, names. contained in its Funeral Industry 101,076 hours for disclosures, and If you want the Commission to give Practice Rule (‘‘Funeral Rule’’ or 39,804 hours for training). your comment confidential treatment, ‘‘Rule’’). That clearance expires on Likely Respondents, Estimated you must file it in paper form, with a September 30, 2011. Number of Respondents, Estimated request for confidential treatment, and DATES: Comments must be submitted on Average Burden per Respondent: you have to follow the procedure or before September 6, 2011. (a) Recordkeeping—Covered funeral explained in FTC Rule 4.9(c), 16 CFR providers, 1 hour/provider for 19,902 4.9(c).1 Your comment will be kept ADDRESSES: Interested parties may file a providers. confidential only if the FTC General comment online or on paper, by (b) Disclosures—Covered funeral Counsel, in his or her sole discretion, following the instructions in the providers, 5.1 hours/provider, for grants your request in accordance with Request for Comment part of the 19,902 providers. the law and the public interest. SUPPLEMENTARY INFORMATION section (c) Training—Covered funeral Postal mail addressed to the below. Write ‘‘Funeral Rule Paperwork providers, 2 hours/provider, for 19,902 Commission is subject to delay due to Comment: FTC File No. P084401’’ on providers. Frequency of Response: heightened security screening. As a your comment, and file your comment Funeral providers must provide price result, we encourage you to submit your online at https:// information in response to telephone comments online, or to send them to the ftcpublic.commentworks.com/ftc/ inquiries and price lists to consumers Commission by courier or overnight funeralrulepra2 by following the making funeral arrangements. Total service. To make sure that the instructions on the web-based form. If Annual Labor Cost: $4,363,593. Commission considers your online you prefer to file your comment on Total Annual Capital or Other Non- comment, you must file it at https:// paper, mail or deliver your comment to Labor Cost: $637,106. ftcpublic.commentworks.com/ftc/ the following Address: Federal Trade Request For Comment funeralrulepra2, by following the Commission, Office of the Secretary, instructions on the web-based form. If Room H–113 (Annex J), 600 You can file a comment online or on this Notice appears at http:// Pennsylvania Avenue, NW., paper. For the Commission to consider www.regulations.gov/#!home, you also Washington, DC 20580. your comment, we must receive it on or may file a comment through that Web FOR FURTHER INFORMATION CONTACT: before September 6, 2011. Write site. Requests for additional information or ‘‘Funeral Rule Paperwork Comment: If you file your comment on paper, copies of the proposed information FTC File No. P084401’’ on your write ‘‘Funeral Rule Paperwork requirements for the Funeral Rule comment. Your comment—including Comment: FTC File No. P084401’’ on should be addressed to Craig Tregillus, your name and your state—will be your comment and on the envelope, and Attorney, Division of Marketing placed on the public record of this mail or deliver it to the following Practices, Bureau of Consumer proceeding, including, to the extent address: Federal Trade Commission, Protection, Federal Trade Commission, practicable, on the public Commission Office of the Secretary, Room H–113 Room H–288, 600 Pennsylvania Ave., Web site, at http://www.ftc.gov/os/ (Annex J), 600 Pennsylvania Avenue, NW., Washington, DC 20580, (202) 326– publiccomments.shtm. As a matter of NW., Washington, DC 20580. If possible, 2970. discretion, the Commission tries to submit your paper comment to the SUPPLEMENTARY INFORMATION: remove individuals’ home contact Commission by courier or overnight Title: Funeral Industry Practices Rule. information from comments before service. OMB Control Number: 3084–0025. placing them on the Commission Web Visit the Commission Web site at Type of Review: Extension of a site. http://www.ftc.gov to read this Notice currently approved collection. Because your comment will be made and the news release describing it. The Abstract: The Funeral Rule, 16 CFR public, you are solely responsible for FTC Act and other laws that the part 312, ensures that consumers who making sure that your comment doesn’t Commission administers permit the are purchasing funeral goods and include any sensitive personal collection of public comments to services have accurate information information, like anyone’s Social consider and use in this proceeding as about the terms and conditions Security number, date of birth, driver’s appropriate. The Commission will (especially itemized prices) for such license number or other state consider all timely and responsive goods and services. It requires that identification number or foreign country public comments that it receives on or funeral providers disclose this equivalent, passport number, financial before October 3, 2011. You can find information to consumers and maintain account number, or credit or debit card more information, including routine records to facilitate enforcement of the number. You are also solely responsible uses permitted by the Privacy Act, in Rule. for making sure that your comment the Commission’s privacy policy, at On May 6, 2011, the FTC sought doesn’t include any sensitive health http://www.ftc.gov/ftc/privacy.shtm. comment on the information collection information, like medical records or Comments on the information requirements associated with the other individually identifiable health collection requirements subject to Funeral Rule. 76 FR 26297. No information. In addition, don’t include comments were received. Pursuant to any ‘‘[trade secret or any commercial or 1 In particular, the written request for confidential the OMB regulations, 5 CFR part 1320, financial information which is obtained treatment that accompanies the comment must from any person and which is privileged include the factual and legal basis for the request, that implement the PRA, 44 U.S.C. 3501 and must identify the specific portions of the et seq., the FTC is providing this second or confidential * * * ’’ as provided in comment to be withheld from the public record. See opportunity for public comment while Section 6(f) of the FTC Act, 15 U.S.C. FTC Rule 4.9(c), 16 CFR 4.9(c).

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47185

review under the PRA should information and supporting initial disclosures (including opt out additionally be submitted to OMB. If documentation should be addressed to notices).1 sent by U.S. mail, they should be Katherine White, Attorney, Division of (b) Established entities—(1) 70,000 addressed to Office of Information and Privacy and Identity Protection, Bureau entities at 4 hours each to review GLBA Regulatory Affairs, Office of of Consumer Protection, Federal Trade implementing policies and practices; (2) Management and Budget, Attention: Commission, 600 Pennsylvania Avenue, 70,000 entities at 20 hours each to Desk Officer for the Federal Trade NW., Washington, DC 20580, (202) 326– disseminate annual disclosure; (3) 1,000 Commission, New Executive Office 2252. entities at 10 hours each to change Building, Docket Library, Room 10102, privacy policies and related SUPPLEMENTARY INFORMATION: 725 17th Street, NW., Washington, DC disclosures.2 20503. Comments sent to OMB by U.S. Title: Gramm-Leach-Bliley Privacy Frequency of Response: On occasion. postal mail, however, are subject to Rule, 16 CFR Part 313. Financial institutions must provide notices to consumers: (1) When initially delays due to heightened security OMB Control Number: 3084–0121. precautions. Thus, comments instead establishing a customer relationship Type of Review: Extension of should be sent by facsimile to (202) and/or before sharing a consumer’s non- currently approved collection. 395–5167. public personal information with Abstract: The GLB Privacy Rule is certain nonaffiliated third parties; (2) on David C. Shonka, designed to ensure that customers and an annual basis; and (3) upon any Acting General Counsel. consumers, subject to certain changes in the institution’s practices on [FR Doc. 2011–19670 Filed 8–3–11; 8:45 am] exceptions, will have access to the information sharing. BILLING CODE 6750–01–M privacy policies of the financial Total Annual Labor Cost: institutions with which they conduct $46,473,780.3 business. As mandated by the Gramm- Total Annual Capital or Other Non- FEDERAL TRADE COMMISSION Leach-Bliley Act (‘‘GLBA’’), 15 U.S.C. Labor Cost: Minimal. 6801–6809, the Rule requires financial Request for Comment: You can file a Agency Information Collection institutions to disclose to consumers: (1) comment online or on paper. For the Activities; Proposed Collection; Initial notice of the financial Commission to consider your comment, Comment Request; Extension institution’s privacy policy when we must receive it on or before September 6, 2011. Write ‘‘Paperwork AGENCY: Federal Trade Commission establishing a customer relationship with a consumer and/or before sharing Comment: FTC File No. P085405’’ on (‘‘Commission’’ or ‘‘FTC’’). your comment. Your comment— ACTION: Notice and request for comment. a consumer’s non-public personal information with certain nonaffiliated including your name and your state — will be placed on the public record of SUMMARY: The information collection third parties; (2) notice of the this proceeding, including, to the extent requirements described below will be consumer’s right to opt out of practicable, on the public Commission submitted to the Office of Management information sharing with such parties; Web site, at http://www.ftc.gov/os/ and Budget (‘‘OMB’’) for review, as (3) annual notice of the institution’s publiccomments.shtm. As a matter of required by the Paperwork Reduction privacy policy to any continuing discretion, the Commission tries to Act (‘‘PRA’’). The FTC is seeking public customer; and (4) notice of changes in remove individuals’ home contact comments on its proposal to extend the institution’s practices on information from comments before through October 31, 2014, the current information sharing. placing them on the Commission Web PRA clearance for information On May 12, 2011, the Commission site. collection requirements contained in the sought comment on the information Because your comment will be made Commission’s Gramm-Leach-Bliley collection requirements associated with public, you are solely responsible for Financial Privacy Rule (‘‘GLB Privacy the GLB Privacy Rule. 76 FR 27645. No making sure that your comment doesn’t Rule’’ or ‘‘Rule’’). The current clearance comments were received. Pursuant to include any sensitive personal expires on October 31, 2011. the OMB Regulations, 5 CFR Part 1320, information, like anyone’s Social DATES: Comments must be submitted on that implements the PRA, 44 U.S.C. Security number, date of birth, driver’s or before September 6, 2011. 3501 et seq., the FTC is providing a license number or other state ADDRESSES: Interested parties may file a second opportunity for the public to identification number or foreign country comment online or on paper, by comment while seeking OMB approval equivalent, passport number, financial following the instructions in the to renew the pre-existing clearance for account number, or credit or debit card Request for Comment part of the the Rule. number. You are also solely responsible SUPPLEMENTARY INFORMATION section Estimated Annual Burden: 1,930,000 for making sure that your comment below. Write: ‘‘FTC File No. P085405’’ hours. on your comment, and file your 1 The FTC retains its previously cleared estimate comment online at https:// Likely Respondents, Estimated of the number of entities each year that will address ftcpublic.commentworks.com/ftc/ Number of Respondents, Estimated the GLB Privacy Rule for the first time. glbprivacyrulepra2 by following the Average Burden Per Year Per 2 The FTC retains its prior assumptions to arrive Respondent: at estimated burden for established entities: (1) instructions on the web-based form. If 100,000 respondents, approximately 70% of whom you prefer to file your comment on (a) Entities addressing the GLB maintain customer relationships exceeding one paper, mail or deliver your comment to Privacy Rule for the first time—(1) 5,000 year, (2) no more than 1% (1,000) of whom make the following address: Federal Trade entities at 20 hours each to review additional changes to privacy policies at any time other than the occasion of the annual notice; and Commission, Office of the Secretary, internal policies and develop GLBA- (3) such changes will occur no more often than once Room H–113 (Annex J), 600 implementing instructions, create and per year. Pennsylvania Avenue, NW., disseminate disclosures; (2) 5,000 3 This is an increase from the previously Washington, DC 20580. entities at 3 hours each to create published estimate of $45,922,820 (see 76 FR at 27646–7 for details and calculations underlying the FOR FURTHER INFORMATION CONTACT: disclosure disclosures; and (3) 5,000 preceding total) based on newer BLS data used for Requests for copies of the collection of entities at 25 hours each to disseminate hourly wage inputs.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47186 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

doesn’t include any sensitive health before September 6, 2011. You can find the following address: Federal Trade information, like medical records or more information, including routine Commission, Office of the Secretary, other individually identifiable health uses permitted by the Privacy Act, in Room H–113 (Annex J), 600 information. In addition, don’t include the Commission’s privacy policy, at Pennsylvania Avenue, NW., any ‘‘[tirade secret or any commercial or http://www.ftc.gov/ftc/privacy.htm. Washington, DC 20580. financial information which is obtained Comments on the information FOR FURTHER INFORMATION CONTACT: from any person and which is privileged collection requirements subject to Requests for additional information or confidential,’’ as provided in Section review under the PRA should should be addressed to Edwin 6(f) of the FTC Act, 15 U.S.C. 46(f), and additionally be submitted to OMB. If Rodriguez, Attorney, Division of FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). sent by U.S. mail, they should be Enforcement, Bureau of Consumer In particular, don’t include addressed to Office of Information and Protection, Federal Trade Commission, competitively sensitive information Regulatory Affairs, Office of 600 Pennsylvania Avenue, NW., M– such as costs, sales statistics, Management and Budget, Attention: 8102B, Washington, DC 20580, (202) inventories, formulas, patterns, devices, Desk Officer for the Federal Trade 326–3147. manufacturing processes, or customer Commission, New Executive Office names. Building, Docket Library, Room 10102, SUPPLEMENTARY INFORMATION: Under the If you want the Commission to give 725 17th Street, NW., Washington, DC PRA, 44 U.S.C. 3501–3521, federal your comment confidential treatment, 20503. Comments sent to OMB by U.S. agencies must obtain approval from you must file it in paper form, with a postal mail, however, are subject to OMB for each collection of information request for confidential treatment, and delays due to heightened security they conduct or sponsor. ‘‘Collection of you have to follow the procedure precautions. Thus, comments instead information’’ means agency requests or explained in FTC Rule 4.9(c), 16 CFR should be sent by facsimile to (202) requirements that members of the public 4.9(c).4 Your comment will be kept 395–5167. submit reports, keep records, or provide confidential only if the FTC General information to a third party. 44 U.S.C. Counsel, in his or her sole discretion, David C. Shonka, 3502(3); 5 CFR 1320.3(c). As required by grants your request in accordance with Acting General Counsel. section 3506(c)(2)(A) of the PRA, the the law and the public interest. [FR Doc. 2011–19707 Filed 8–3–11; 8:45 am] FTC is providing this opportunity for Postal mail addressed to the BILLING CODE 6750–01–M public comment before requesting that Commission is subject to delay due to OMB extend the existing clearance for heightened security screening. As a the information collection requirements result, we encourage you to submit your FEDERAL TRADE COMMISSION contained in the Negative Option Rule, comments online. To make sure that the 16 CFR part 425 (OMB Control Number Commission considers your online Agency Information Collection 3084–0104). comment, you must file it at https:// Activities; Submission for The FTC invites comments on: (1) ftcpublic.commentworks.com/ftc/ OMBReview; Comment Request Whether the proposed collection of glbprivacyrulepra2, by following the AGENCY: Federal Trade Commission information is necessary for the proper instructions on the web-based form. If (‘‘FTC’’ or ‘‘Commission’’). performance of the functions of the this Notice appears at http:// agency, including whether the www.regulations.gov/#!home, you also ACTION: Notice. information will have practical utility; may file a comment through that Web SUMMARY: The information collection (2) the accuracy of the agency’s estimate site. requirements described below will be If you file your comment on paper, of the burden of the proposed collection submitted to the Office of Management write ‘‘Paperwork Comment: FTC File of information, including the validity of and Budget (‘‘OMB’’) for review, as No. P085405’’ on your comment and on the methodology and assumptions used; required by the Paperwork Reduction the envelope, and mail or deliver it to (3) ways to enhance the quality, utility, Act (‘‘PRA’’). The FTC is seeking public the following address: Federal Trade and clarity of the information to be comments on its proposal to extend Commission, Office of the Secretary, collected; and (4) ways to minimize the through November 30, 2014, the current Room H–113 (Annex J), 600 burden of the collection of information OMB clearance for the information Pennsylvania Avenue, NW., on those who are to respond, including collection requirements contained in its Washington, DC 20580. If possible, through the use of appropriate Use of Prenotification Negative Option submit your paper comment to the automated, electronic, mechanical, or Plans (‘‘Negative Option Rule’’ or Commission by courier or overnight other technological collection ‘‘Rule’’). That clearance expires on service. techniques or other forms of information Visit the Commission Web site at November 30, 2011. technology, e.g., permitting electronic http://www.ftc.gov to read this Notice DATES: Comments must be submitted by submission of responses. and the news release describing it. The October 3, 2011. The Negative Option Rule governs the FTC Act and other laws that the ADDRESSES: Interested parties may file a operation of prenotification subscription Commission administers permit the comment online or on paper, by plans. Under these plans, sellers notify collection of public comments to following the instructions in the subscribers that they will automatically consider and use in this proceeding as Request for Comment part of the ship merchandise, such as books, appropriate. The Commission will SUPPLEMENTARY INFORMATION section compact discs, or tapes, and bill consider all timely and responsive below. Write ‘‘Negative Option Rule: subscribers for the merchandise if the public comments that it receives on or FTC File No. P064202’’ on your subscribers do not expressly reject the comment, and file your comment online merchandise beforehand within a 4 In particular, the written request for confidential at https://ftcpublic.commentworks.com/ prescribed time. The Rule protects treatment that accompanies the comment must ftc/NegOptionPRA by following the consumers by: (a) Requiring that include the factual and legal basis for the request, and must identify the specific portions of the instructions on the web-based form. If promotional materials disclose the comment to be withheld from the public record. See you prefer to file your comment on terms of membership clearly and FTC Rule 4.9(c), 16 CFR 4.9(c). paper, mail or deliver your comment to conspicuously; and (b) establishing

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47187

procedures for the administration of Rule imposes few, if any, printing and accordance with the law and the public such ‘‘negative option’’ plans. distribution costs. The required interest. disclosures generally constitute only a Postal mail addressed to the Burden Statement small addition to the advertising for Commission is subject to delay due to Estimated annual hours burden: 3,875 negative option plans. Because printing heightened security screening. As a hours. and distribution expenditures are result, we encourage you to submit your Based on industry input, staff incurred to market the product comments online, or to send them to the estimates that approximately 45 existing regardless of the Rule, adding the Commission by courier or overnight clubs each require annually about 75 required disclosures results in marginal service. To make sure that the hours to comply with the Rule’s incremental expense. Commission considers your online disclosure requirements, for a total of comment, you must file it at https:// 3,375 hours (45 clubs × 75 hours). These Request for Comment ftcpublic.commentworks.com/ftc/ clubs should be familiar with the Rule, NegOptionPRA by following the which has been in effect since 1974, You can file a comment online or on instructions on the web-based form. If with the result that the burden of paper. For the FTC to consider your this Notice appears at http:// compliance has declined over time. comment, we must receive it on or www.regulations.gov/Mhome, you also Moreover, a substantial portion of the before October 3, 2011. Write ‘‘Negative may file a comment through that Web existing clubs likely would make these Option Rule: FTC File No. P064202’’ on site. disclosures absent the Rule because they your comment. Your comment— If you file your comment on paper, have helped foster long-term including your name and your state — write ‘‘Negative Option Rule: FTC File relationships with consumers. will be placed on the public record of No. P064202’’ on your comment and on Approximately 5 new clubs come into this proceeding, including, to the extent the envelope, and mail or deliver it to being each year. These clubs require practicable, on the public Commission the following address: Federal Trade approximately 100 hours to comply Web site, at http://www.ftc.govios/ Commission, Office of the Secretary, with the Rule, including start up-time. publiccomments.shtm. As a matter of Room H–113 (Annex J), 600 Thus, the cumulative PRA burden for discretion, the Commission tries to Pennsylvania Avenue, NW., new clubs is about 500 hours (5 clubs remove individuals’ home contact Washington, DC 20580. If possible, × 100 hours). Combined with the information from comments before submit your paper comment to the estimated burden for established clubs, placing them on the Commission Web Commission by courier or overnight the total burden is 3,875 hours. site. service. Estimated annual cost burden: Because your comment will be made Visit the Commission Web site at $171,825 (solely related to labor costs). public, you are solely responsible for http://www.ftc.gov to read this Notice Based on recent data from the Bureau making sure that your comment does and the news release describing it. The of Labor Statistics,1 the mean hourly not include any sensitive personal FTC Act and other laws that the wage for advertising managers is information, like anyone’s Social Commission administers permit the approximately $47 per hour. Security number, date of birth, driver’s collection of public comments to Compensation for office and license number or other state consider and use in this proceeding as administrative support personnel is identification number or foreign country appropriate. The Commission will approximately $17 per hour. Assuming equivalent, passport number, financial consider all timely and responsive that managers perform the bulk of the account number, or credit or debit card public comments that it receives on or work, while clerical personnel perform number. You are also solely responsible before October 3, 2011. You can find associated tasks (e.g., placing for making sure that your comment does more information, including routine advertisements and responding to not include any sensitive health uses permitted by the Privacy Act, in inquiries about offerings or prices), the information, like medical records or the Commission’s privacy policy, at total cost to the industry for the Rule’s other individually identifiable health http://www.ftc.gov/ftc/privacy.htm. information collection requirements information. In addition, do not include David C. Shonka, would be approximately $167,125 [(65 any ‘‘Nrade secret or any commercial or Acting General Counsel. hours managerial time 45 existing clubs × financial information which is obtained [FR Doc. 2011–19671 Filed 8–3–11; 8:45 am] $47 per hour) + (10 hours clerical time from any person and which is privileged × 45 existing clubs × $17 per hour) + (90 BILLING CODE 6750–01–M × × or confidential * * *, ’’ as provided in hours managerial time 5 new clubs Section 6(f) of the FTC Act, 15 U.S.C. $47 per hour) + (10 hours clerical time × × 46(f), and FTC Rule 4.10(a)(2), 16 CFR FEDERAL TRADE COMMISSION 5 new clubs $17)]. 4.10(a)(2). If you want the Commission Because the Rule has been in effect to give your comment confidential Agency Information Collection since 1974, the vast majority of the treatment, you must file it in paper Activities; Proposed Collection; negative option clubs have no current form, with a request for confidential Comment Request start-up costs. For the few new clubs treatment, and you have to follow the AGENCY: Federal Trade Commission that enter the market each year, the procedure explained in FTC Rule 4.9(c), costs associated with the Rule’s (‘‘FTC’’ or ‘‘Commission’’). 16 CFR 4.9(c).2 Your comment will be disclosure requirements, beyond the ACTION: Notice. kept confidential only if the FTC additional labor costs discussed above, General Counsel, in his or her sole SUMMARY: are de minimis. Negative option clubs The FTC is seeking public discretion, grants your request in already have access to the ordinary comments on its proposal to extend office equipment necessary to achieve through January 31, 2015, the current 2 compliance with the Rule. Similarly, the In particular, the written request for confidential PRA clearance for information sought treatment that accompanies the comment must through compulsory process orders to a include the factual and legal basis for the request, 1 Occupational Employment And Wages—May and must identify the specific portions of the combined ten or more a the largest 2010, Table 1, at http://www.bls.gov/news.release/ comment to be withheld from the public record. See cigarette manufacturers and smokeless pdf/ocwage.pdf. FTC Rule 4.9(c), 16 CFR 4.9(c). tobacco manufacturers in order to obtain

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47188 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

from them information including, United States (‘‘industry members’’). technology, e.g., permitting electronic among other things, their annual sales The information requests will seek data submission of responses. and marketing expenditures. The regarding, inter alia: (1) The tobacco Estimated hours burden: The FTC current clearance expires on January 31, sales of industry members; (2) how staffs estimate of the hours burden is 2012. The information collection much industry members spend based on the time required each year to requirements described below will be advertising and promoting their tobacco respond to the Commission’s submitted to the Office of Management products, and the specific amounts information request. Although the FTC and Budget (‘‘OMB’’) for review, as spent in each of a number of specified currently anticipates sending required by the Paperwork Reduction expenditure categories; (3) whether information requests each year to the Act (‘‘PRA’’). industry members are involved in the five largest cigarette companies and the DATES: Comments on the proposed appearance of their products or brand five largest smokeless tobacco information requests must be received imagery in television shows, motion companies, the burden estimate is based on or before October 3, 2011. pictures, or the Internet; (4) how much on up to 15 information requests being ADDRESSES: Interested parties may file a industry members spend on advertising issued per year to take into account any comment online or on paper, by intended to reduce youth tobacco usage; future changes in these industries. following the instructions in the (5) the events, if any, during which These companies vary greatly in size, in Request for Comment part of the industry members’ tobacco brands are the number of products they sell, and in SUPPLEMENTARY INFORMATION section televised; and (6) for the cigarette the extent and variety of their below. Write: ‘‘Tobacco Reports: industry, the tar, nicotine, and carbon advertising and promotion. Prior input Paperwork Comment, FTC File No. monoxide ratings of their cigarettes, to received from the industries, combined P054507’’ on your comment, and file the extent they possess such data.1 The with staffs knowledge of them, suggests your comment online at https:// information will again be sought using that the time most companies would ftcpublic.commentworks.com/ compulsory process under Section 6(b) require to gather, organize, format, and ftchobaccoreportspra by following the of the FTC Act. produce their responses would range from 30 to 80 hours per information instructions on the web-based form. If Under the PRA, 44 U.S.C. 3501–3521, you prefer to file your comment on request for the smaller companies, to as federal agencies must obtain approval much as hundreds of hours for the very paper, mail or deliver your comment to from OMB for each collection of the following address: Federal Trade largest companies. As an information they conduct or sponsor. approximation, staff continues to Commission, Office of the Secretary, ‘‘Collection of information’’ means Room H–113 (Annex J), 600 assume a per company average of 180 agency requests or requirements that hours for the ten largest recipients of the Pennsylvania Avenue, NW., members of the public submit reports, Washington, DC 20580. Commission’s information requests to keep records, or provide information to comply—cumulatively, 1,800 hours per FOR FURTHER INFORMATION CONTACT: a third party. 44 U.S.C. 3502(3), 5 CFR year, or 5,400 hours over the three years Requests for additional information or 1320.3(c). As required by section that would be covered by an extension copies of the proposed collection of 3506(c)(2)(A) of the PRA, the FTC is of OMB’s approval under the PRA. information should be addressed to providing this opportunity for public Staff anticipates that if the Shira Modell, Division of Advertising comment before requesting that OMB Commission decides to issue Practices, Bureau of Consumer extend the existing paperwork clearance information requests to an additional Protection, Federal Trade Commission, for the proposed collection of one or more companies, those 600 Pennsylvania Avenue, NW., information. companies would be smaller than the NJ–3212, Washington, DC 20580. The FTC invites comments on: (1) primary ten recipients and the burden Telephone: (202) 326–3116. Whether the proposed collection of would therefore be less than on the SUPPLEMENTARY INFORMATION: For more information is necessary for the proper larger companies. Staff believes that the than forty years, the FTC has published performance of the functions of the burden should not exceed 60 hours for periodic reports containing data on agency, including whether the these smaller recipients of information domestic cigarette sales and marketing information will have practical utility; requests. Cumulatively, then, the total expenditures by the major U.S. cigarette (2) the accuracy of the agency’s estimate burden for five additional respondents manufacturers. It has published of the burden of the proposed collection should not exceed 300 hours per year or comparable reports on smokeless of information, including the validity of 900 hours over a three-year OMB tobacco sales and marketing the methodology and assumptions used; clearance. Thus, the overall estimated expenditures for more than twenty (3) ways to enhance the quality, utility, burden for a maximum of 15 recipients years. Both reports originally were and clarity of the information to be of the information requests is 2,100 issued pursuant to statutory mandates. collected; and (4) ways to minimize the hours per year or a total of 6,300 hours. After those statutory mandates were burden of the collection of information These estimates include any time spent terminated, the Commission continued on those who are to respond, including by separately incorporated subsidiaries to collect and publish information through the use of appropriate and other entities affiliated with the obtained from the cigarette and automated, electronic, mechanical, or ultimate parent company that has smokeless tobacco industries pursuant other technological collection received the information request. Estimated cost burden: It is not to Section 6(b) of the FTC Act, 15 U.S.C. techniques or other forms of information 46(b). The current PRA clearance to possible to calculate with precision the collect this information is valid through labor costs associated with this data 1 Although the Commission has rescinded the January 31, 2012, under OMB Control 1966 enforcement policy that allowed factual production, as they entail varying No. 3084–0134. statements of tar and nicotine yields supported by compensation levels of management The FTC plans to continue sending testing conducted under what was commonly and/or support staff among companies information requests annually to the referred to as ‘‘the FTC Test Method,’’ 73 FR 74,500 of different sizes. Commission staff (Dec. 8, 2008), the Commission believes it is ultimate parent company of several of important to continue collecting these data, which assumes that personnel with technical the largest cigarette companies and researchers and policymakers use to track trends training will handle most of the tasks smokeless tobacco companies in the over time. involved in the data collection process,

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47189

although legal staff likely will be you have to follow the procedure DEPARTMENT OF HEALTH AND involved in preparing the actual explained in FTC Rule 4.9(c), 16 CFR HUMAN SERVICES submission to the Commission, and has 4.9(c).2 Your comment will be kept applied an average hourly wage of $100/ confidential only if the FTC General Centers for Disease Control and hour for their combined labor. Counsel, in his or her sole discretion, Prevention Accordingly, staffs best estimate for the grants your request in accordance with Statement of Organization, Functions, total labor costs for up to 15 information the law and the public interest. requests is $210,000 per year, for a total and Delegations of Authority of $630,000 over the entire three-year Postal mail addressed to the Commission is subject to delay due to Part C (Centers for Disease Control period. Staff believes that the capital or and Prevention) of the Statement of other non-labor costs associated with heightened security screening. As a result, we encourage you to submit your Organization, Functions, and the information requests are minimal. Delegations of Authority of the comments online, or to send them to the Although the information requests may Department of Health and Human Commission by courier or overnight necessitate that industry members Services (45 FR 67772–76, dated service. To make sure that the maintain the requested information October 14, 1980, and corrected at 45 FR provided to the Commission, they Commission considers your online 69296, October 20, 1980, as amended should already have in place the means comment, you must file it at https:// most recently at 76 FR 34075, dated to compile and maintain business ftcpublic.commentworks.com/ftc/ June 10, 2011) is amended to reflect the records. tobaccoreportspra, by following the establishment of the Office of Minority Request for comment: You can file a instructions on the web-based form. If Health and Health Equity (CAW), Office comment online or on paper. For the this Notice appears at http:// of the Director (CA), Centers for Disease Commission to consider your comment, www.regulations.gov/#!home, you also Control and Prevention (C). This will we must receive it on or before October may file a comment through that Web 3, 2011. Write ‘‘Tobacco Reports: align this office as a direct report to the site. Paperwork Comment, FTC File No. Director, Centers for Disease Control P054507’’ on your comment. Your If you file your comment on paper, and Prevention (CDC), pursuant to comment—including your name and write ‘‘Tobacco reports: Paperwork passage of the Patient Protection and your state—will be placed on the public Comment, FTC File No. P054507’’ on Affordable Care Act (Pub. L. 111–148). record of this proceeding, including, to your comment and on the envelope, and I. Section C–B, Organization and the extent practicable, on the public mail or deliver it to the following Functions, is hereby amended as follows: Commission Web site, at http:// address: Federal Trade Commission, Under Part C, Centers for Disease www.ftc.gov/os/publiccomments.shtm. Office of the Secretary, Room H–113 Control and Prevention (C), Office of the As a matter of discretion, the (Annex J), 600 Pennsylvania Avenue, Commission tries to remove individuals’ Director (CA), add the following NW., Washington, DC 20580. If possible, organizational unit after the Office of home contact information from submit your paper comment to the comments before placing them on the Diversity Management and Equal Commission by courier or overnight Employment Opportunity (CAV): Commission Web site. Because your service. comment will be made public, you are Office of Minority Health and Health solely responsible for making sure that Visit the Commission Web site at Equity (CAW): The mission of the Office your comment does not include any http://www.ftc.gov to read this Notice of Minority Health and Health Equity sensitive personal information, such as and the news release describing it. The (OMHHE) is to accelerate CDC’s health anyone’s Social Security number, date FTC Act and other laws that the impact in the U.S population and to of birth, driver’s license number or other Commission administers permit the eliminate health disparities for state identification number or foreign collection of public comments to vulnerable populations as defined by country equivalent, passport number, consider and use in this proceeding as race/ethnicity, socio-economic status, financial account number, or credit or appropriate. The Commission will geography, gender, age, disability status, debit card number. You are also solely consider all timely and responsive risk status related to sex and gender, responsible for making sure that your public comments that it receives on or and among other populations that are identified as at-risk for health comment does not include any sensitive before October 3, 2011. You can find disparities. As the Office of the health information, such as medical more information, including routine Director’s organizational focus for records or other individually uses permitted by the Privacy Act, in identifiable health information. In eliminating health disparities, OMHHE: the Commission’s privacy policy, at (1) Provides leadership for CDC-wide addition, don’t include any ‘‘[t]rade http://www.ftc.gov/ftc/privacy.htm. secret or any commercial or financial policies, strategies, action planning, information which is obtained from any David C. Shonka, implementation and evaluation to person and which is privileged or Acting General Counsel. eliminate health disparities; (2) coordinates CDC’s response to confidential * * *,’’ as provided in [FR Doc. 2011–19672 Filed 8–3–11; 8:45 am] Section 6(f) of the FTC Act, 15 U.S.C. Presidential Executive Orders, BILLING CODE 6750–01–M 46(f), and FTC Rule 4.10(a)(2), 16 CFR Congressional mandates, Secretarial and 4.10(a)(2). In particular, don’t include HHS/ASH/OPHS Initiatives, and competitively sensitive information, provides timely performance reports on such as costs, sales statistics, minority health and health equity as inventories, formulas, patterns, devices, required; (3) monitors and reports on the health status of vulnerable manufacturing processes, or customer 2 In particular, the written request for confidential populations and the effectiveness of names. treatment that accompanies the comment must If you want the Commission to give include the factual and legal basis for the request, health protection programs; (4) your comment confidential treatment, and must identify the specific portions of the evaluates the impact of policies and you must file it in paper form, with a comment to be withheld from the public record. See programs to achieve health disparities request for confidential treatment, and FTC Rule 4.9(c), 16 CFR4.9(c). elimination; (5) supports internal/

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00050 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47190 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

external partnerships to advance the SUMMARY: In accordance with the periods when the beneficiary is enrolled science, practice and workforce for requirements of the Privacy Act of 1974, in that Plan. eliminating health disparities inside/ we are proposing to modify or alter a We propose to modify existing routine outside CDC; (6) maintains critical SOR titled, ‘‘Medicare Advantage use number 1 that permits disclosure to linkages with federal partners including Prescription Drug (MARx) System, No. agency contractors and consultants to the Office of the Secretary, Department 09–70–4001,’’ last modified at 70 FR include disclosure to CMS grantees who of Health and Human Services, and 60530 (October 18, 2005). CMS proposes perform a task for the agency. CMS represents CDC on related scientific and to broaden the data collected and stored grantees, charges with completing policy committees; (7) establishes by this system as part of a redesign and projects or activities that require CMS external advisory capacity and internal modernization of the MARx System. On data to carry out that activity, are advisory and action capacity; (8) December 8, 2003, Congress passed the classified separate from CMS improves support of efforts to improve Medicare Prescription Drug, contractors and/or consultants. The minority health and achieve health Improvement, and Modernization Act of modified routine use will remain as equity in the U.S. by collaborating with 2003 (MMA) (Pub. L. 108–173). MMA routine use number 1. We will delete CDC’s National Centers and other amended the Social Security Act (the routine use number 7 authorizing entities; (9) synthesizes, disseminates, Act) by adding the Medicare Part D disclosure to support constituent and encourages use of scientific Program under Title XVIII and requests made to a congressional evidence regarding effective mandated that CMS establish a representative. If an authorization for interventions to achieve health voluntary Medicare prescription drug the disclosure has been obtained from disparities elimination outcomes; (10) benefit program effective January 1, the data subject, then no routine use is analyzes trends in and determinants of 2006. Under the Medicare Part D needed. health disparities to provide decision benefit, the Act allows Medicare We will broaden the scope of support to CDC’s Executive Leadership payment to plans that contract with published routine uses number 8 and 9, in allocating CDC resources to agency- CMS to provide qualified Part D authorizing disclosures to combat fraud wide programs for surveillance, prescription drug coverage as described and abuse in the Medicare and research, intervention and evaluation; in 42 Code of Federal Regulations (CFR) Medicaid programs to include (11) positions CDC to address relevant 423.401. The MARx System processes combating ‘‘waste’’ which refers to provisions in the 2010 Patient all enrollment/disenrollment specific beneficiary/recipient practices Protection and Affordable Care Act that transactions associated with the Part D that result in unnecessary cost to all address health disparities; (12) program. Federally-funded health benefit strengthens CDC’s global health work to programs. We will add a new routine The modified MARx System will use authorizing disclosure of achieve equity; (13) supports CDC’s accept and store Health Plan-supplied response to public health emergencies individually identifiable information to beneficiary residence addresses on an assist in efforts to respond to a in vulnerable populations; and (14) initial Part C and/or Part D enrollment ensures administrative effectiveness and suspected or confirmed breach of the or a subsequent record update security or confidentiality of efficiency of agency-wide efforts to transaction from the Plan. The main information maintained in these achieve health equity. source of beneficiary residence address II. Delegation of Authority: All systems of records. is the Social Security Administration We are modifying the language in the delegations and redelegations of (SSA). The address SSA provides, remaining routine uses to provide a authority made to officials and however, may not be the beneficiary’s proper explanation as to the need for the employees of affected organizational residence address. Beneficiary addresses routine use and to provide clarity to components will continue in them or are initially provided by SSA from the CMS’s intention to disclose individual- their successors pending further beneficiary’s enrollment in Part A and/ specific information contained in this redelegation, provided they are or Part B, and frequently reflect an system. The routine uses will then be consistent with this reorganization. address of a representative payee or a prioritized and reordered according to Authority: 44 U.S.C. 3101. Post Office (P.O.) Box, not the residence their usage. We will also take the Dated: July 27, 2011. of the beneficiary. This limits the opportunity to update language in the Carlton Duncan, effectiveness of geographically-sensitive administrative sections to correspond Acting Chief Operating Officer, Centers for Plan payment decisions. Plans have with language used in other CMS SORs. Disease Control and Prevention. more accurate beneficiary address We propose to assign a new CMS information, which is updated on a [FR Doc. 2011–19739 Filed 8–3–11; 8:45 am] identification number to this system to case-by-case basis. CMS wishes to allow simplify the obsolete and confusing BILLING CODE 4160–18–M this data to be transmitted in initial numbering system originally designed enrollment and subsequent record to identify the Bureau, Office, or Center DEPARTMENT OF HEALTH AND update transactions from the Plans, and that maintained information in the HUMAN SERVICES additionally translated into valid Health Care Financing Administration residence address State and County systems of records. The new assigned Centers for Medicare & Medicaid Codes for subsequent use in service area identifying number for this system Services determination. Support for Plan- should read: System No. 09–70–0588. supplied residence address will The primary purpose of the SOR is to Privacy Act of 1974; Report of Modified improve the accurate application of maintain a master file of Medicare or Altered System geographically sensitive rates in Plan Advantage (MA) and Medicare AGENCY: Centers for Medicare & payment calculation. The Plan-supplied Advantage Prescription Drug (MA–PD) Medicaid Services, Department of beneficiary residence address will be plan members for accounting and Health and Human Services (HHS). updated and saved with the payment control; expedite the exchange beneficiary’s enrollment data in the of data with MA and MA–PD; control ACTION: Notice of Modified or Altered MARx System. The residence address the posting of pro-rata amounts to the System of Records (SOR). provided by the Plan will only apply to Part B deductible of currently enrolled

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00051 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47191

MA members; and track participation of Boulevard, Baltimore, Maryland 21244– insurance (Part B), and recipients of the the prescription drug benefits provided 1850. Comments received will be Prescription Drug Benefits Program (Part under prescription drug plans (PDPs) available for review at this location, by D) enrolled in the Medicare Advantage and Medicare employer plans. appointment, during regular business (MA) Program (Part C). The system also Information in this system is disclosed hours, Monday through Friday from includes information about a to: (1) Support regulatory, 9 a.m.–3 p.m., Eastern daylight time. beneficiary’s entitlement to Medicare reimbursement, and policy functions FOR FURTHER INFORMATION CONTACT: benefits and enrollment in Medicare performed by a contractor, consultant, Ronald Graham, Director, Division of Programs, prescription drug coverage or CMS grantee contracted by the MA & Part D Application Analysis, and supplementary medical claims Agency; (2) support another Federal or Information Services Design and information. The system collects State agency, agency of a state Development Group, Office of identifying information such as government, an agency established by Information Services, CMS, Room N3– beneficiary name, health insurance state law, or its fiscal agent; (3) assist 18–07, 7500 Security Boulevard, claim number (HICN), social security providers and suppliers of service Baltimore, Maryland 21244–1850. The number, and other demographic directly or dealing through contractors, telephone number is 410–786–1513. information such as residence address. fiscal intermediaries (FI) or carriers for SUPPLEMENTARY INFORMATION: CMS will II. Agency Policies, Procedures, and the administration of Title XVIII redesign and modernize the MARx Restrictions on Routine Uses Medicaid state agency; (4) assist third System to simplify the data model, party contacts in situations where the modernize the design to build A. The Privacy Act permits us to party to be contacted has, or is expected independent component services, and disclose information without an to have information relating to the align the system processes to the individual’s consent if the information individual’s capacity to manage his or business cycle. Taking a business- is to be used for a purpose that is her affairs; (5) assist insurance centric approach to the design of this compatible with the purpose(s) for companies, third party administrators, system will better meet customer and which the information was collected. employers, self-insurers, managed care CMS needs while reducing maintenance Any such disclosure of data is known as organizations, and other supplemental costs. This will provide CMS with a a ‘‘routine use.’’ The government will insurers; (6) facilitate research on the more flexible system able to respond to only release MARx information that can quality and effectiveness of care changing and evolving programmatic be associated with an individual as provided, as well as payment-related needs with greater immediacy than is provided for under ‘‘Section III. projects; (7) support litigation involving possible today with the legacy MARx Proposed Routine Use Disclosures of the Agency; (8) combat fraud and abuse design. Data in the System.’’ Both identifiable in certain health benefits programs, and The redesign and modernization of and non-identifiable data may be (9) assist in a response to a suspected or the MARx System will provide disclosed under a routine use. confirmed breach of the security or enhanced Medicare Part C and Part D CMS will only collect the minimum confidentiality of information. CMS has functionality to improve processing personal data necessary to achieve the provided background information about efficiencies and better support current purpose of MARx. CMS has the the modified system in the and future business needs to: (1) following policies and procedures SUPPLEMENTARY INFORMATION section Receive, validate and disseminate data concerning disclosures of information below. Although the Privacy Act for beneficiary membership in Part C that will be maintained in the system. requires only that CMS provide an and Part D Plans; (2) Calculate and Disclosure of information from the SOR opportunity for interested persons to disseminate beneficiary premium will be approved only to the extent comment on the proposed routine uses, amounts, including dissemination to necessary to accomplish the purpose of CMS invites comments on all portions premium withholding agencies; and (3) the disclosure and only after CMS: of this notice. See ‘‘Effective Dates’’ Calculate and disseminate Plan payment section for comment period. amounts. 1. Determines that the use or disclosure is consistent with the reason DATES: Effective Dates: CMS filed a I. Description of the Modified System of modified or altered system report with data is being collected; e.g., maintain a Records the Chair of the House Committee on master file of MA and MA–PD plan Government Reform and Oversight, the A. Statutory and Regulatory Basis for members for accounting and payment Chair of the Senate Committee on the System control; expedite the exchange of data with MA and MA–PD; control the Governmental Affairs, and the Authority for maintenance of the Administrator, Office of Information posting of pro-rata amounts to the Part system is given under Section 101 of the B deductible of currently enrolled MA and Regulatory Affairs, Office of Medicare Prescription Drug, Management and Budget (OMB) on July members; and track participation of the Improvement, and Modernization Act of prescription drug benefits provided 28, 2011. To ensure that all parties have 2003 (MMA) (Pub. L. 108–173) amended adequate time in which to comment, the under private prescription drug plans the Title XVIII of the Social Security and Medicare employer plans. modified or altered SOR, including Act. Authority for maintenance of the 2. Determines that the purpose for routine uses, will become effective 40 system is also given under the which the disclosure is to be made can days from the publication of the notice, provisions of §§ 1833(a)(1)(A), 1860, only be accomplished if the record is or from the date it was submitted to 1866, and 1876 of Title XVIII of the Act provided in individually identifiable OMB and the Congress, whichever is (42 U.S.C. 1395(A)(1)(a), 1395cc, and form; later, unless CMS receives comments 1395mm). that require alterations to this notice. a. The purpose for which the ADDRESSES: The public should address B. Collection and Maintenance of Data disclosure is to be made is of sufficient comments to: CMS Privacy Officer, in the System importance to warrant the effect and/or Division of Information Security & The system includes information on risk on the privacy of the individual that Privacy Management (DISPM), CMS, recipients of Medicare hospital additional exposure of the record might Room N1–24–08, 7500 Security insurance (Part A), Medicare medical bring; and

VerDate Mar<15>2010 18:39 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00052 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47192 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

b. There is a strong probability that or disclosing the information for any 4. To third party contacts in situations the proposed use of the data would in purpose other than that described in the where the party to be contacted has, or fact accomplish the stated purpose(s). contract and requires the contractor, is expected to have information relating 3. Requires the information recipient consultant, or CMS grantees to return or to the individual’s capacity to manage to: destroy all information at the his or her affairs or to his or her a. Establish administrative, technical, completion of the contract. eligibility for, or an entitlement to, and physical safeguards to prevent 2. To another Federal or state agency, benefits under the Medicare program unauthorized use of disclosure of the agency of a state government, an agency and, record; established by state law, or its fiscal a. The individual is unable to provide b. Remove or destroy at the earliest agent to: the information being sought (an time all patient-identifiable information; a. Contribute to the accuracy of CMS’s individual is considered to be unable to and proper payment of Medicare benefits, provide certain types of information c. Agree to not use or disclose the b. Enable such agency to administer a when any of the following conditions information for any purpose other than Federal health benefits program, or as exists: The individual is confined to a the stated purpose under which the necessary to enable such agency to mental institution, a court of competent information was disclosed. fulfill a requirement of a Federal statute jurisdiction has appointed a guardian to 4. Determines that the data are valid or regulation that implements a health manage the affairs of that individual, a and reliable. benefits program funded in whole or in court of competent jurisdiction has part with Federal funds, and/or declared the individual to be mentally III. Proposed Routine Use Disclosures c. Assist Federal/state Medicaid incompetent, or the individual’s of Data in the System programs within the state. attending physician has certified that A. Entities Who May Receive Other Federal or state agencies in the individual is not sufficiently Disclosures Under Routine Use their administration of a Federal health mentally competent to manage his or program may require MARx information her own affairs or to provide the These routine uses specify in order to support evaluations and information being sought, the individual circumstances, in addition to those monitoring of Medicare claims cannot read or write, cannot afford the provided by statute in the Privacy Act information of beneficiaries, including cost of obtaining the information, a of 1974, under which CMS may release proper reimbursement for services language barrier exist, or the custodian information from the MARx without the provided. of the information will not, as a matter consent of the individual to whom such Disclosure under this routine use of policy, provide it to the individual), information pertains. Each proposed shall be used by state Medicaid agencies or disclosure of information under these pursuant to agreements with the HHS b. The data are needed to establish the routine uses will be evaluated to ensure for determining Medicaid and Medicare validity of evidence or to verify the that the disclosure is legally eligibility, for quality control studies, accuracy of information presented by permissible, including but not limited to for determining eligibility of recipients the individual, and it concerns one or ensuring that the purpose of the of assistance under Titles IV, XVIII, and more of the following: The individual’s disclosure is compatible with the XIX of the Act, and for the entitlement to benefits under the purpose for which the information was administration of the Medicaid program. Medicare program, the amount of collected. CMS is not proposing to Data will be released to the state only on reimbursement, and in cases in which establish any new or modify any of the those individuals who are patients the evidence is being reviewed as a following existing routine use under the services of a Medicaid result of suspected fraud and abuse, disclosures of information maintained program within the state or who are program integrity, quality appraisal, or in the system as part of the redesign and residents of that state. evaluation and measurement of modernization of the MARx System: CMS also contemplates disclosing activities. 1. To Agency contractors, consultants, information under this routine use in Third party contacts require MARx or CMS grantees that have been situations in which state auditing information in order to provide support contracted by the Agency to assist in agencies require MARx information for for the individual’s entitlement to accomplishment of a CMS function auditing state Medicaid eligibility benefits under the Medicare program; to relating to the purposes for this system considerations. CMS may enter into an establish the validity of evidence or to and who need access to the records in agreement with state auditing agencies verify the accuracy of information order to assist CMS. to assist in accomplishing functions presented by the individual, and assist CMS contemplates disclosing relating to purposes for this system to in the monitoring of Medicare claims information under this routine use only providers and suppliers of services information of beneficiaries, including in situations in which CMS may enter directly or through fiscal intermediaries proper reimbursement of services into a contractual or similar agreement or carriers for the administration of Title provided. with a third party to assist in XVIII of the Act. 5. To insurance companies, third accomplishing a CMS function relating 3. To assist providers and suppliers of party administrators (TPA), employers, to purposes for this system. services directly or through fiscal self-insurers, managed care CMS occasionally contracts out intermediaries or carriers for the organizations, other supplemental certain of its functions when doing so administration of Title XVIII of the Act. insurers, non-coordinating insurers, would contribute to effective and Providers and suppliers of services multiple employer trusts, group health efficient operations. CMS must be able require MARx information in order to plans (i.e., health maintenance to give a contractor, consultant, or CMS establish the validity of evidence or to organizations (HMOs) or a competitive grantees whatever information is verify the accuracy of information medical plan with a Medicare contract, necessary for the contractor or presented by the individual, as it or a Medicare-approved health care consultant to fulfill its duties. In these concerns the individual’s entitlement to prepayment plan (HCPP)), directly or situations, safeguards are provided in benefits under the Medicare program, through a contractor, and other groups the contract prohibiting the contractor, including proper reimbursement for providing protection for their enrollees. consultant, or CMS grantees from using services provided. Information to be disclosed shall be

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00053 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47193

limited to Medicare entitlement data. In or to a CMS grantee of a CMS- (2) Is of sufficient importance to order to receive the information, they administered grant program, when warrant the effect and/or risk on the must agree to: disclosure is deemed reasonably privacy of the individual that additional a. Certify that the individual about necessary by CMS to prevent, deter, exposure of the record might bring, and whom the information is being provided discover, detect, investigate, examine, (3) There is reasonable probability is one of its insured or employees, or is prosecute, sue with respect to, defend that the objective for the use would be insured and/or employed by another against, correct, remedy, or otherwise accomplished; entity for whom they serve as a TPA; combat fraud or abuse in such programs. c. Requires the recipient of the b. Utilize the information solely for CMS contemplates disclosing information to: the purpose of processing the identified information under this routine use only (1) establish reasonable individual’s insurance claims; and in situations in which CMS may enter administrative, technical, and physical c. Safeguard the confidentiality of the into a contract or grant with a third safeguards to prevent unauthorized use data and prevent unauthorized access. party to assist in accomplishing CMS or disclosure of the record, and Other insurers, TPAs, HMOs, and functions relating to the purpose of (2) remove or destroy the information HCPPs may require MARx information combating fraud and abuse. that allows the individual to be in order to support evaluations and CMS occasionally contracts out identified at the earliest time at which monitoring of Medicare claims certain of its functions when doing so removal or destruction can be information of beneficiaries, including would contribute to effective and accomplished consistent with the proper reimbursement for services efficient operations. CMS must be able purpose of the disclosure, and provided. to give a contractor or CMS grantee (3) Make no further use or disclosure 6. To an individual or organization for whatever information is necessary for of the record except: (a) In emergency circumstances a research, evaluation, or the contractor or CMS grantee to fulfill affecting the health or safety of any epidemiological project related to the its duties. In these situations, safeguards individual, or prevention of disease or disability, the are provided in the contract prohibiting restoration or maintenance of health, or (b) When required by law; the contractor or CMS grantee from d. Secures a written statement payment-related projects. using or disclosing the information for MARx data will provide for research, attesting to the information recipient’s any purpose other than that described in understanding of and willingness to evaluation, and epidemiological the contract and requiring the contractor projects, a broader, longitudinal, abide by these provisions and complete or CMS grantee to return or destroy all a Data Use Agreement (CMS Form 0235) national perspective of the status of information. Medicare beneficiaries. CMS anticipates in accordance with current CMS 9. To another Federal agency or to an that many researchers will have policies. instrumentality of any governmental legitimate requests to use these data in Other Federal agencies and jurisdiction within or under the control projects that could ultimately improve contractors may require MARx of the United States (including any state the care provided to Medicare information for the purpose of assisting or local governmental agency), that beneficiaries and the policy that governs in a respond to a suspected or administers, or that has the authority to the care. confirmed breach of the security or investigate potential fraud or abuse in, 7. To the Department of Justice (DOJ), confidentiality of information. a health benefits program funded in court or adjudicatory body when: whole or in part by Federal funds, when B. Additional Circumstances Affecting a. The Agency or any component Routine Use Disclosures thereof, or disclosure is deemed reasonably b. Any employee of the Agency in his necessary by CMS to prevent, deter, This system contains Protected Health or her official capacity, or discover, detect, investigate, examine, Information as defined by HHS c. Any employee of the Agency in his prosecute, sue with respect to, defend regulation ‘‘Standards for Privacy of or her individual capacity where the against, correct, remedy, or otherwise Individually Identifiable Health DOJ has agreed to represent the combat fraud or abuse in such programs. Information’’ (45 CFR parts 160 and 164, employee, or Other agencies may require MARx 65 FR 82462 (12–28–00), Subparts A d. The United States Government, is information for the purpose of and E. The protected health information a party to litigation or has an interest in combating fraud and abuse in such is collected from the Plan during the such litigation, and by careful review, Federally-funded programs. enrollment process and passed onto the CMS determines that the records are 10. To appropriate Federal agencies, Medicare Beneficiary Database. These both relevant and necessary to the Department officials and Agency elements include the Beneficiary Name, litigation and that the use of such contractors that need access to Sex, Date of Birth, and Health Insurance records by the DOJ, court or identifiable information to provide Claim Number. Disclosures of Protected adjudicatory body is compatible with assistance to the Department’s efforts to Health Information authorized by these the purpose for which the agency respond to a suspected or confirmed routine uses may only be made if, and collected the records. breach of the security or confidentiality as, permitted or required by the Whenever CMS is involved in of information. In order to receive the ‘‘Standards for Privacy of Individually litigation, or occasionally when another information, CMS must: Identifiable Health Information.’’ party is involved in litigation and CMS’s a. Determines that the use or In addition, our policy will be to policies or operations could be affected disclosure does not violate legal prohibit release even of data not directly by the outcome of the litigation, CMS limitations under which the record was identifiable, except pursuant to one of would be able to disclose information to provided, collected, or obtained; the routine uses or if required by law, the DOJ, court, or adjudicatory body b. Determines that the purpose for if CMS determines there is a possibility involved. which the disclosure is to be made: that an individual can be identified 8. To a CMS contractor (including, but (1) Cannot be reasonably through implicit deduction based on not limited to FIs and carriers) that accomplished unless the record is small cell sizes (instances where the assists in the administration of a CMS- provided in individually identifiable patient population is so small that administered health benefits program, form, individuals who are familiar with the

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00054 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47194 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

enrollees could, because of the small unauthorized access to the records and PURPOSE(S) OF THE SYSTEM: size, use this information to deduce the the potential harm to individual privacy The primary purpose of the SOR is to identity of the beneficiary). or other personal or property rights. maintain a master file of Medicare CMS will collect only that information Advantage (MA) and Medicare IV. Safeguards necessary to perform the system’s Advantage Prescription Drug (MA–PD) CMS has safeguards in place for functions. In addition, CMS will make plan members for accounting and authorized users and monitors such disclosure from the proposed system payment control; expedite the exchange users to ensure against excessive or only with consent of the subject of data with MA and MA–PD; control unauthorized use. Personnel having individual, or his/her legal the posting of pro-rata amounts to the access to the system have been trained representative, or in accordance with an Part B deductible of currently enrolled in the Privacy Act and information applicable exception provision of the MA members; and track participation of security requirements. Employees who Privacy Act. the prescription drug benefits provided maintain records in this system are CMS, therefore, does not anticipate an under prescription drug plans (PDPs) instructed not to release data until the unfavorable effect on individual privacy and Medicare employer plans.. intended recipient agrees to implement as a result of the disclosure of Information in this system is disclosed appropriate management, operational information relating to individuals. to: (1) Support regulatory, and technical safeguards sufficient to Dated: July 28, 2011. reimbursement, and policy functions protect the confidentiality, integrity and Michelle Snyder, performed by a contractor, consultant, availability of the information and or CMS grantee contracted by the information systems and to prevent Deputy Chief Operating Officer, Centers for Medicare & Medicaid Services. Agency; (2) support another Federal or unauthorized access. State agency, agency of a state This system will conform to all SYSTEM NO. 09–70–0588 government, an agency established by applicable Federal laws and regulations SYSTEM NAME: state law, or its fiscal agent; (3) assist and Federal, HHS, and CMS policies providers and suppliers of service and standards as they relate to ‘‘Medicare Advantage Prescription Drug (MARx)’’ System HHS/CMS/CM. directly or dealing through contractors, information security and data privacy. fiscal intermediaries (FI) or carriers for These laws and regulations include but SECURITY CLASSIFICATION: the administration of Title XVIII (4) are not limited to: the Privacy Act of Level Three Privacy Act Sensitive. assist third party contacts in situations 1974; the Federal Information Security where the party to be contacted has, or Management Act of 2002; the Computer SYSTEM LOCATION: is expected to have information relating Fraud and Abuse Act of 1986; the CMS Data Center, 7500 Security to the individual’s capacity to manage Health Insurance Portability and Boulevard, North Building, First Floor, his or her affairs; (5) assist insurance Accountability Act of 1996; the Baltimore, Maryland 21244–1850. companies, third party administrators, E-Government Act of 2002, the Clinger- employers, self-insurers, managed care Cohen Act of 1996; the Medicare CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM: organizations, and other supplemental Modernization Act of 2003, and the insurers; (6) facilitate research on the corresponding implementing The system includes information on quality and effectiveness of care regulations. OMB Circular A–130, recipients of Medicare hospital provided, as well as payment-related Management of Federal Resources, insurance (Part A) and Medicare projects; (7) support litigation involving Appendix III, Security of Federal medical insurance (Part B), and the Agency; (8) combat fraud, waste, Automated Information Resources also recipients of the Prescription Drug and abuse in certain health benefits applies. Federal, HHS, and CMS Benefits Program (Part D) enrolled in the programs, and (9) assist in a response to policies and standards include but are Medicare Advantage (MA) Program . a suspected or confirmed breach of the not limited to: All pertinent National CATEGORIES OF RECORDS IN THE SYSTEM : security or confidentiality of Institute of Standards and Technology The system includes information information. publications; the HHS Information about a beneficiary’s entitlement to Systems Program Handbook and the Medicare benefits and enrollment in ROUTINE USES OF RECORDS MAINTAINED IN THE CMS Information Security Handbook. Medicare Programs, prescription drug SYSTEM, INCLUDING CATEGORIES OR USERS AND coverage and supplementary medical THE PURPOSES OF SUCH USES: V. Effects of the Modified System on B. Entities Who May Receive Individual Rights claims information. The system contains identifying information such as Disclosures Under Routine Use. CMS proposes to establish this system beneficiary name, health insurance These routine uses specify in accordance with the principles and claim number, social security number, circumstances, in addition to those requirements of the Privacy Act and will and other demographic information. provided by statute in the Privacy Act collect, use, and disseminate of 1974, under which CMS may release information only as prescribed therein. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: information from the MARx without the CMS will only disclose the minimum Authority for maintenance of the consent of the individual to whom such personal data necessary to achieve the system is given under Section 101 of the information pertains. Each proposed purpose of MARx. Disclosure of Medicare Prescription Drug, disclosure of information under these information from the system will be Improvement, and Modernization Act of routine uses will be evaluated to ensure approved only to the extent necessary to 2003 (MMA) (Pub. L. 108–173), which that the disclosure is legally accomplish the purpose of the amended the Title XVIII of the Social permissible, including but not limited to disclosure. CMS has assigned a higher Security Act. Authority for maintenance ensuring that the purpose of the level of security clearance for the of the system is also given under the disclosure is compatible with the information maintained in this system provisions of §§ 1833(a)(1)(A), 1860D–1 purpose for which the information was in an effort to provide added security to D–43, 1866, and 1876 of Title XVIII collected. and protection of data in this system. of the Act (42 U.S.C. 1395(A)(1)(a), 1. To Agency contractors, consultants, CMS will take precautionary 1395w–101 to 1395w–153, 1395cc, and or CMS grantees that have been measures to minimize the risks of 1395mm). contracted by the Agency to assist in

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00055 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47195

accomplishment of a CMS function self-insurers, managed care administers, or that has the authority to relating to the purposes for this system organizations, other supplemental investigate potential fraud, waste, or and who need access to the records in insurers, non-coordinating insurers, abuse in, a health benefits program order to assist CMS. multiple employer trusts, group health funded in whole or in part by Federal 5. To another Federal or state agency, plans (i.e., health maintenance funds, when disclosure is deemed agency of a state government, an agency organizations (HMOs) or a competitive reasonably necessary by CMS to established by state law, or its fiscal medical plan with a Medicare contract, prevent, deter, discover, detect, agent to: or a Medicare-approved health care investigate, examine, prosecute, sue a. Contribute to the accuracy of CMS’s prepayment plan (HCPP)), directly or with respect to, defend against, correct, proper payment of Medicare benefits, through a contractor, and other groups remedy, or otherwise combat fraud, b. Enable such agency to administer a providing protection for their enrollees. waste, or abuse in such programs. Federal health benefits program, or as Information to be disclosed shall be 15. To assist appropriate Federal necessary to enable such agency to limited to Medicare entitlement data. In agencies and Department contractors fulfill a requirement of a Federal statute order to receive the information, they that have a need to know the or regulation that implements a health must agree to: information for the purpose of assisting benefits program funded in whole or in e. Certify that the individual about the Department’s efforts to respond to a part with Federal funds, and/or whom the information is being provided suspected or confirmed breach of the c. Assist Federal/state Medicaid is one of its insured or employees, or is security or confidentiality of programs within the state. insured and/or employed by another information maintained in this system 6. To assist providers and suppliers of entity for whom they serve as a TPA; of records, and the information services directly or through fiscal f. Utilize the information solely for disclosed is relevant and necessary for intermediaries or carriers for the the purpose of processing the identified the assistance. In order to receive the administration of Title XVIII of the Act. individual’s insurance claims; and information, CMS must: 7. To third party contacts in situations g. Safeguard the confidentiality of the a. Determines that the use or where the party to be contacted has, or data and prevent unauthorized access. disclosure does not violate legal is expected to have information relating 11. To an individual or organization limitations under which the record was to the individual’s capacity to manage for a research, evaluation, or provided, collected, or obtained; his or her affairs or to his or her epidemiological project related to the b. Determines that the purpose for eligibility for, or an entitlement to, prevention of disease or disability, the which the disclosure is to be made: benefits under the Medicare program restoration or maintenance of health, or (1) Cannot be reasonably and, payment-related projects. accomplished unless the record is b. The individual is unable to provide 12. To the Department of Justice provided in individually identifiable the information being sought (an (DOJ), court or adjudicatory body when: form, individual is considered to be unable to a. The Agency or any component (2) is of sufficient importance to provide certain types of information thereof, or warrant the effect and/or risk on the when any of the following conditions b. Any employee of the Agency in his privacy of the individual that additional exists: The individual is confined to a or her official capacity, or exposure of the record might bring, and mental institution, a court of competent c. Any employee of the Agency in his (3) there is reasonable probability that jurisdiction has appointed a guardian to or her individual capacity where the the objective for the use would be manage the affairs of that individual, a DOJ has agreed to represent the accomplished; court of competent jurisdiction has employee, or c. Require the recipient of the declared the individual to be mentally d. The United States Government, is information to: incompetent, or the individual’s a party to litigation or has an interest in (1) establish reasonable attending physician has certified that such litigation, and by careful review, administrative, technical, and physical the individual is not sufficiently CMS determines that the records are safeguards to prevent unauthorized use mentally competent to manage his or both relevant and necessary to the or disclosure of the record, and her own affairs or to provide the litigation and that the use of such (2) remove or destroy the information information being sought, the individual records by the DOJ, court or that allows the individual to be cannot read or write, cannot afford the adjudicatory body is compatible with identified at the earliest time at which cost of obtaining the information, a the purpose for which the agency removal or destruction can be language barrier exists, or the custodian collected the records. accomplished consistent with the of the information will not, as a matter 13. To a CMS contractor (including, purpose of the disclosure, and (3) Make no further use or disclosure of policy, provide it to the individual), but not limited to FIs and carriers) that of the record except: or assists in the administration of a CMS- (a) In emergency circumstances d. The data are needed to establish the administered health benefits program, affecting the health or safety of any validity of evidence or to verify the or to a CMS grantee of a CMS- individual, or accuracy of information presented by administered grant program, when (b) When required by law. the individual, and it concerns one or disclosure is deemed reasonably d. Secure a written statement attesting more of the following: The individual’s necessary by CMS to prevent, deter, to the information recipient’s entitlement to benefits under the discover, detect, investigate, examine, understanding of and willingness to Medicare program, the amount of prosecute, sue with respect to, defend abide by these provisions and complete reimbursement, and in cases in which against, correct, remedy, or otherwise a Data Use Agreement (CMS Form 0235) the evidence is being reviewed as a combat fraud, waste, or abuse in such in accordance with current CMS result of suspected fraud and abuse, programs. policies. program integrity, quality appraisal, or 14. To another Federal agency or to an evaluation and measurement of instrumentality of any governmental C. ADDITIONAL CIRCUMSTANCES AFFECTING activities. jurisdiction within or under the control ROUTINE USE DISCLOSURES 6. To insurance companies, third of the United States (including any state This system contains Protected Health party administrators (TPA), employers, or local governmental agency), that Information as defined by HHS

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00056 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47196 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

regulation ‘‘Standards for Privacy of Health Insurance Portability and RECORD SOURCE CATEGORIES: Individually Identifiable Health Accountability Act of 1996; the E- Data for this system is collected from Information’’ (45 CFR Parts 160 and 164, Government Act of 2002, the Clinger- MAs, MA–PDs, and PDPs (which 65 Fed. Reg. 82462 (12–28–00), Subparts Cohen Act of 1996; the Medicare obtained the data from the individuals A and E. The protected health Modernization Act of 2003, and the concerned); Social Security information is collected from the Plan corresponding implementing Administration; and the Medicare during the enrollment process and regulations. OMB Circular A–130, Beneficiary Database, 1–800 Medicare passed onto the Medicare Beneficiary Management of Federal Resources, Choice, and Health Plan Management Database. These elements include the Appendix III, Security of Federal System. Beneficiary Name, Sex, Date of Birth, Automated Information Resources also SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS and Health Insurance Claim Number. applies. Federal, HHS, and CMS OF THE ACT: Disclosures of Protected Health policies and standards include but are None. Information authorized by these routine not limited to: All pertinent National uses may only be made if, and as, Institute of Standards and Technology [FR Doc. 2011–19803 Filed 8–3–11; 8:45 am] permitted or required by the ‘‘Standards publications; the HHS Information BILLING CODE 4120–03–P for Privacy of Individually Identifiable Systems Program Handbook and the Health Information.’’ CMS Information Security Handbook. In addition, our policy will be to DEPARTMENT OF HEALTH AND prohibit release even of data not directly RETENTION AND DISPOSAL: HUMAN SERVICES identifiable, except pursuant to one of Records are maintained with Administration for Children and the routine uses or if required by law, identifiers for all transactions after they Families if CMS determines there is a possibility are entered into the system for a period that an individual can be identified of 6 years and 3 months. Records are Submission for OMB Review; through implicit deduction based on housed in both active and archival files. Comment Request small cell sizes (instances where the All claims-related records are patient population is so small that encompassed by the document Title: Request for Assistance for Child individuals who are familiar with the preservation order and will be retained Victims of Human Trafficking enrollees could, because of the small until notification is received from the OMB No.: 0970–0362. Description: The William Wilberforce size, use this information to deduce the Department of Justice. Trafficking Victims Protection identity of the beneficiary). SYSTEM MANAGER AND ADDRESS: Reauthorization Act (TVPRA) of 2008, POLICIES AND PRACTICES FOR STORING, Director, Division of MA & Part D Public Law 110–457, directs the U.S. RETRIEVING, ACCESSING, RETAINING, AND Application Analysis, Information Secretary of Health and Human Service DISPOSING OF RECORDS IN THE SYSTEM: Services Design and Development (HHS), upon receipt of credible STORAGE: Group, Office of Information Services, information that a non-U.S. citizen, non- Magnetic storage media. CMS. Lawful Permanent Resident (alien) child may have been subjected to a severe RETRIEVABILITY: NOTIFICATION PROCEDURE: form of trafficking in persons and is Information can be retrieved by name For purpose of access, the subject seeking Federal assistance available to and health insurance claim number of individual should write to the systems victims of trafficking, to promptly the beneficiary. manager who will require the system determine if the child is eligible for name, SSN, address, date of birth, sex, interim assistance. The law further SAFEGUARDS: and for verification purposes, the directs the Secretary of HHS to CMS has safeguards in place for subject individual’s name (woman’s determine if a child receiving interim authorized users and monitors such maiden name, if applicable). Furnishing assistance is eligible for assistance as a users to ensure against excessive or the SSN is voluntary, but it may make victim of a severe form of trafficking in unauthorized use. Personnel having searching for a record easier and prevent persons after consultation with the access to the system have been trained delay. Attorney General, the Secretary of in the Privacy Act and information Homeland Security, and security requirements. Employees who RECORD ACCESS PROCEDURE: nongovernmental organizations with maintain records in this system are For purpose of access, use the same expertise on victims of severe form of instructed not to release data until the procedures outlined in Notification trafficking. intended recipient agrees to implement Procedures above. Requestors should In developing procedures for appropriate management, operational also reasonably specify the record collecting the necessary information and technical safeguards sufficient to contents being sought. (These from potential child victims of protect the confidentiality, integrity and procedures are in accordance with trafficking, their case managers, availability of the information and Department regulation 45 CFR attorneys, or other representatives to information systems and to prevent 5b.5(a)(2)). allow HHS to grant interim eligibility, unauthorized access. HHS devised a form. HHS has This system will conform to all CONTESTING RECORD PROCEDURES: determined that the use of a standard applicable Federal laws and regulations The subject individual should contact form to collect information is the best and Federal, HHS, and CMS policies the system manager named above, and way to ensure requestors are notified of and standards as they relate to reasonably identify the record and their option to request assistance for information security and data privacy. specify the information to be contested. child victims of trafficking and to make These laws and regulations include but State the corrective action sought and prompt and consistent determinations are not limited to: The Privacy Act of the reasons for the correction with about the child’s eligibility for 1974; the Federal Information Security supporting justification. (These assistance. Management Act of 2002; the Computer procedures are in accordance with Specifically, the form asks the Fraud and Abuse Act of 1986; the Department regulation 45 CFR 5b.7). requestor for his/her identifying

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00057 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47197

information, for information on the circumstances and experiences in a non- victim of a severe form of trafficking in child, information describing the type of directive, child-friendly way, and assists persons, facilitate the required trafficking and circumstances the potential requestor in assessing consultation process, and enable HHS to surrounding the situation, and the whether the child may have been assess and address potential child strengths and needs of the child. The subjected to trafficking in persons. protection issues. form also asks the requestor to verify the The information provided through the Respondents: Representatives of information contained in the form completion of a Request for Assistance governmental and nongovernmental because the information could be the for Child Victims of Human Trafficking entities providing social, legal, or basis for a determination of an alien form will enable HHS to make prompt protective services to alien persons child’s eligibility for federally funded determinations regarding the eligibility under the age of 18 (children) in the benefits. Finally, the form takes into of an alien child for interim assistance, United States who may have been consideration the need to compile inform HHS’ determination regarding subjected to severe forms of trafficking information regarding a child’s the child’s eligibility for assistance as a in persons.

ANNUAL BURDEN ESTIMATES

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

Request for Assistance for Child Victims of Human Trafficking ...... 200 1 1 200

Estimated Total Annual Burden DEPARTMENT OF HEALTH AND renewed that declaration. The Secretary Hours: 200. HUMAN SERVICES of HHS then renewed and amended that Additional Information: Copies of the declaration so that it applies to all Food and Drug Administration proposed collection may be obtained by doxycycline products covered by this authorization. The Authorization, which writing to the Administration for [Docket No. FDA–2011–N–0543] includes an explanation of the reasons Children and Families, Office of for issuance, is reprinted in this Administration, Office of Information Authorization of Emergency Use of document. Services, 370 L’Enfant Promenade, SW., Oral Formulations of Doxycycline; Washington, DC 20447, Attn: ACF Availability DATES: The Authorization is effective as of July 21, 2011. Reports Clearance Officer. All requests AGENCY: Food and Drug Administration, ADDRESSES: should be identified by the title of the HHS. Submit written requests for information collection. E-mail address: single copies of the EUA to the Office ACTION: Notice. [email protected]. of Counterterrorism and Emerging Threats, Food and Drug Administration, OMB Comment: OMB is required to SUMMARY: The Food and Drug Administration (FDA) is announcing the 10903 New Hampshire Ave., Bldg. 32, make a decision concerning the rm. 4121, Silver Spring, MD 20993. collection of information between 30 issuance of an Emergency Use Authorization (EUA) (the Authorization) Send one self-addressed adhesive label and 60 days after publication of this to assist that office in processing your document in the Federal Register. for oral formulations of doxycycline for the post-exposure prophylaxis of request or include a fax number to Therefore, a comment is best assured of which the Authorization may be sent. having its full effect if OMB receives it inhalational anthrax during a public health emergency involving aerosolized See the SUPPLEMENTARY INFORMATION within 30 days of publication. Written Bacillus anthracis (B. anthracis). FDA is section for electronic access to the comments and recommendations for the issuing this Authorization under the Authorization. proposed information collection should Federal Food, Drug, and Cosmetic Act FOR FURTHER INFORMATION CONTACT: be sent directly to the following: (the FD&C Act), as requested by the Luciana Borio, Office of Office of Management and Budget, Centers for Disease Control and Counterterrorism and Emerging Threats, Paperwork Reduction Project, Fax: Prevention (CDC). The Authorization Food and Drug Administration, 10903 202–395–7285, E-mail: contains, among other things, New Hampshire Ave., Bldg. 32, rm. [email protected], conditions on the emergency use of the 4280, Silver Spring, MD 20993, 301– Attn: Desk Officer for the authorized doxycycline products. The 796–8510. Administration for Children and Authorization follows the determination SUPPLEMENTARY INFORMATION: Families. by the Secretary of the Department of Homeland Security (DHS) that there is I. Background Robert Sargis, a significant potential for a domestic Section 564 of the FD&C Act (21 Reports Clearance Officer. emergency involving a heightened risk U.S.C. 360bbb-3), as amended by the [FR Doc. 2011–19715 Filed 8–3–11; 8:45 am] of attack with a specified biological, Project BioShield Act of 2004 (Pub. L. BILLING CODE 4184–01–P chemical, radiological, or nuclear agent 108–276), allows FDA to strengthen the or agents—in this case, B. anthracis. On public health protections against the basis of such determination, the biological, chemical, nuclear, and Secretary of the Department of Health radiological agents. Among other things, and Human Services (HHS) declared an section 564 of the FD&C Act allows FDA emergency justifying the authorization to authorize the use of an unapproved of the emergency use of doxycycline medical product or an unapproved use hyclate tablets, accompanied by of an approved medical product during emergency use information, and later a public health emergency that affects,

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00058 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47198 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

or has a significant potential to affect, or licensed under sections 505, 510(k), security. On September 23, 2008, under national security, and that involves and 515 of the FD&C Act (21 U.S.C. 355, section 564(b)(1)(A) of the FD&C Act, biological, chemical, radiological, or 360(k), and 360e) or section 351 of the the Secretary of DHS determined that nuclear agent or agents, or a specified PHS Act (42 U.S.C. 262). FDA may issue there is a significant potential for a disease or condition that may be an EUA only if, after consultation with domestic emergency involving a attributable to such agent or agents. the National Institutes of Health and heightened risk of attack with a With this EUA authority, FDA can help CDC (to the extent feasible and specified biological, chemical, assure that medical countermeasures appropriate given the circumstances of radiological, or nuclear agent or may be used in an emergency to the emergency), FDA 1 concludes: (1) agents—in this case, B. anthracis. On diagnose, treat, or prevent serious or That an agent specified in a declaration October 1, 2008, under section 564(b) of life-threatening diseases or conditions of emergency can cause a serious or life- the FD&C Act, and on the basis of such caused by such agents, when there are threatening disease or condition; (2) determination, the Secretary of HHS no adequate, approved, and available that, based on the totality of scientific then declared an emergency justifying alternatives. evidence available to FDA, including the authorization of the emergency use Section 564(b)(1) of the FD&C Act data from adequate and well-controlled of doxycycline hyclate tablets provides that, before an EUA may be clinical trials, if available, it is accompanied by emergency use issued, the Secretary must declare an reasonable to believe that: (A) the information subject to the terms of any emergency justifying the authorization product may be effective in diagnosing, authorization issued under section based on one of the following grounds: treating, or preventing—(1) Such disease 564(a) of the FD&C Act, and on October ‘‘(A) A determination by the Secretary of or condition; or (2) a serious or life- 1, 2009, and on October 1, 2010, Homeland Security that there is a threatening disease or condition caused renewed that declaration. On July 20, domestic emergency, or a significant by a product authorized under section 2011, the Secretary of HHS renewed and potential for a domestic emergency, 564, approved or cleared under the amended that declaration so that it involving a heightened risk of attack FD&C Act, or licensed under section 351 applies to all doxycycline products with a specified biological, chemical, of the PHS Act, for diagnosing, treating, covered by this authorization. Notice of radiological, or nuclear agent or agents; or preventing such a disease or the determination and the declaration of (B) a determination by the Secretary of condition caused by such an agent; and the Secretary were published in the Defense that there is a military (B) the known and potential benefits of Federal Register on July 27, 2011 (76 FR emergency, or a significant potential for the product, when used to diagnose, 44926). On May 5, 2011, CDC requested a military emergency, involving a prevent, or treat such disease or and, on July 21, 2011, FDA issued an heightened risk to United States military condition, outweigh the known and EUA for oral formulations of forces of attack with a specified potential risks of the product; (3) that doxycycline products for the post- biological, chemical, radiological, or there is no adequate, approved, and nuclear agent or agents; or (C) a available alternative to the product for exposure prophylaxis of inhalational determination by the Secretary of a diagnosing, preventing, or treating such anthrax during a public health public health emergency under section disease or condition; and (4) that such emergency involving aerosolized B. 319 of the Public Health Service Act other criteria as the Secretary may by anthracis, subject to the terms and (PHS Act) that affects, or has a regulation prescribe are satisfied. conditions of this authorization. significant potential to affect, national No other criteria of issuance have III. Electronic Access security, and that involves a specified been prescribed by regulation under biological, chemical, radiological, or section 564(c)(4) of the FD&C Act. An electronic version of this nuclear agent or agents, or a specified Because the statute is self-executing, document and the full text of the disease or condition that may be FDA does not require regulations or Authorization are available on the attributable to such agent or agents.’’ guidance to implement the EUA Internet at http://www.regulations.gov. Once the Secretary has declared an authority. However, in the Federal emergency justifying an authorization Register of July 26, 2007 (72 FR 41083), IV. The Authorization under section 564 of the FD&C Act, FDA FDA announced the availability of a Having concluded that the criteria for may authorize the emergency use of a guidance entitled ‘‘Emergency Use issuance of the Authorization under drug, device, or biological product if the Authorization of Medical Products.’’ section 564(c) of the FD&C Act are met, Agency concludes that the statutory The guidance provides more FDA has authorized the emergency use criteria are satisfied. Under section information for stakeholders and the of oral formulations of doxycycline 564(h)(1) of the FD&C Act, FDA is public about the EUA authority and the products for the post-exposure required to publish, in the Federal Agency’s process for the consideration prophylaxis of inhalational anthrax Register, a notice of each authorization, of EUA requests. during a public health emergency and each termination or revocation of an involving aerosolized B. anthracis authorization, and an explanation of the II. EUA Request for Oral Formulations subject to the terms and conditions of reasons for the action. Section 564 of the of Doxycycline Products the authorization. FD&C Act permits FDA to authorize the In 2004, the Secretary of DHS issued introduction into interstate commerce of a material threat determination The Authorization for doxycycline a drug, device, or biological product indicating that B. anthracis, the products follows and provides an intended for use in a declared biological agent that causes anthrax explanation of the reasons for its emergency. Products appropriate for disease, presents a material threat issuance, as required by section emergency use may include products against the population of the United 564(h)(1) of the FD&C Act: and uses that are not approved, cleared, States sufficient to affect national BILLING CODE 4160–01–P

1 The Secretary has delegated her authority to issue an EUA under section 564 of the FD&C Act to the Commissioner of Food and Drugs.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00059 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47199

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00060 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.021 47200 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00061 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.022 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47201

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00062 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.023 47202 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00063 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.024 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47203

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00064 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.025 47204 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00065 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.026 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47205

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00066 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.027 47206 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00067 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.028 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47207

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00068 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.029 47208 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00069 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.030 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47209

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00070 Fmt 4703 Sfmt 4725 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES EN04AU11.031 EN04AU11.032 47210 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Dated: July 28, 2011. have been delegated to the DEPARTMENT OF HEALTH AND Leslie Kux, Commissioner of Food and Drugs and HUMAN SERVICES Acting Assistant Commissioner for Policy. redelegated to certain other FDA [FR Doc. 2011–19622 Filed 8–3–11; 8:45 am] officials. These notices of filing are Food and Drug Administration BILLING CODE 4160–01–C published in the Federal Register. [Docket Nos. FDA–2011–M–0323, FDA– Under the Federal Register Act (44 2011–M–0256, FDA–2011–M–0257, FDA– U.S.C. chapter 15), the Administrative 2011–M–0241, FDA–2011–M–0284, FDA– DEPARTMENT OF HEALTH AND 2011–M–0295, FDA–2011–M–0300, FDA– Committee of the Federal Register HUMAN SERVICES 2011–M–0296, FDA–2011–M–0342, FDA– issues regulations regarding publishing 2011–M–0338, FDA–2011–M–0343, FDA– Food and Drug Administration documents in the Federal Register (1 2011–M–0348, FDA–2011–M–0349, FDA– CFR chapter I). Based on these 2011–M–0430, FDA–2011–M–0431, FDA– [Docket No. FDA–2011–N–0518] governing regulations, the OFR 2011–M–0445, FDA–2011–M–0470, FDA– classifies Agency documents published 2011–M–0472, FDA–2011–M–0502, and Notices of Filing of Petitions for Food FDA–2011–M–0503] Additives and Color Additives; in the Federal Register in one of three Relocation in the Federal Register categories: rules and regulations, Medical Devices; Availability of Safety proposed rules, and notices. The and Effectiveness Summaries for AGENCY: Food and Drug Administration, regulation establishing document types Premarket Approval Applications HHS. is 1 CFR 5.9. FDA’s section 409 and ACTION: Notice. section 721 notices of filing have AGENCY: Food and Drug Administration, historically been published in the HHS. SUMMARY: The Food and Drug ‘‘Notices’’ section of the Federal ACTION: Notice. Administration (FDA) is notifying the Register. OFR recently informed FDA public that notices of filing of petitions SUMMARY: The Food and Drug for food additives and color additives that, in their view, these documents Administration (FDA) is publishing a that are published in accordance with actually fall into the ‘‘Proposed Rules’’ list of premarket approval applications the Federal Food, Drug, and Cosmetic category and requested that FDA (PMAs) that have been approved. This Act (FD&C Act) will now be published classify future such notices of filing list is intended to inform the public of in the ‘‘Proposed Rules’’ section of the documents as proposed rules (Ref. 1). the availability of safety and Federal Register. Notices of filing have Accordingly, FDA documents effectiveness summaries of approved historically been published in the providing notice under section 409(b)(5) PMAs through the Internet and the ‘‘Notices’’ section of the Federal or section 721(d)(1) of the FD&C Act Agency’s Division of Dockets Register. The Office of the Federal will appear in the proposed rule section Management. Register (OFR) recently informed FDA of the Federal Register. This change is ADDRESSES: Submit written requests for that, under OFR rules, these documents effective immediately. copies of summaries of safety and actually fall into the ‘‘Proposed Rules’’ effectiveness data to the Division of category and requested that FDA II. Reference Dockets Management (HFA–305), Food reclassify these notices of filing The following reference has been and Drug Administration, 5630 Fishers documents as proposed rules. This Lane, rm. 1061, Rockville, MD 20852. change is effective immediately. placed on display in the Division of Dockets Management (HFA–305), Food Please cite the appropriate docket FOR FURTHER INFORMATION CONTACT: and Drug Administration, 5630 Fishers number as listed in table 1 of this Joyce Strong, Regulations Editorial Lane, rm. 1061, Rockville, MD 20852, document when submitting a written Section, Office of Policy, Planning and request. See the SUPPLEMENTARY and may be seen by interested persons Budget, Food and Drug INFORMATION section for electronic between 9 a.m. and 4 p.m., Monday Administration,10903 New Hampshire access to the summaries of safety and Ave., Bldg. 32, Rm. 3208, Silver Spring, through Friday. effectiveness. MD 20993–0002, 301–796–9148, 1. Memo from Amy P. Bunk, Office of the FOR FURTHER INFORMATION CONTACT: [email protected]. Federal Register, to Joyce Strong, Food and Nicole Wolanski, Center for Devices and Drug Administration, May 9, 2011. SUPPLEMENTARY INFORMATION: Radiological Health, Food and Drug Dated: July 29, 2011. Administration, 10903 New Hampshire I. Background Leslie Kux, Ave., Bldg. 66, rm. 1650, Silver Spring, Section 409 of the FD&C Act (21 Acting Assistant Commissioner for Policy. MD 20993, 301–796–6570. U.S.C. 348) establishes the food additive [FR Doc. 2011–19765 Filed 8–3–11; 8:45 am] SUPPLEMENTARY INFORMATION: petition approval process for food additives for use in human and animal BILLING CODE 4160–01–P I. Background food. Section 409(b)(5) requires that the In the Federal Register of January 30, Secretary of Health and Human Services 1998 (63 FR 4571), FDA published a publish notice in general terms of the final rule that revised 21 CFR 814.44(d) receipt of a petition within 30 days of and 814.45(d) to discontinue individual its filing. Similarly, section 721 of the publication of PMA approvals and FD&C Act (21 U.S.C. 379e) establishes a denials in the Federal Register. Instead, petition approval process for color the Agency now posts this information additives used in food, drugs, cosmetics, on the Internet on FDA’s home page at and devices, and requires that the http://www.fda.gov. Secretary publish notice in general In accordance with section 515(d)(4) terms of the receipt of a color additive and (e)(2) of the Federal Food, Drug, and petition within 30 days of its filing. Cosmetic Act (the FD&C Act) (21 U.S.C. These responsibilities of the Secretary 360e(d)(4) and (e)(2)), notification of an

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00071 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47211

order approving, denying, or FDA may, for good cause, extend this PMA approvals and denials that were withdrawing approval of a PMA will 30-day period. Reconsideration of a announced during that quarter. The continue to include a notice of denial or withdrawal of approval of a following is a list of approved PMAs for opportunity to request review of the PMA may be sought only by the which summaries of safety and order under section 515(g) of the FD&C applicant; in these cases, the 30-day effectiveness were placed on the Act. The 30-day period for requesting period will begin when the applicant is Internet from April 1, 2011, through reconsideration of an FDA action under notified by FDA in writing of its June 30, 2011. There were no denial § 10.33(b) (21 CFR 10.33(b)) for notices decision. actions during this period. The list announcing approval of a PMA begins The regulations provide that FDA provides the manufacturer’s name, the on the day the notice is placed on the publish a quarterly list of available product’s generic name or the trade Internet. Section 10.33(b) provides that safety and effectiveness summaries of name, and the approval date.

TABLE 1—LIST OF SAFETY AND EFFECTIVENESS SUMMARIES FOR APPROVED PMAS MADE AVAILABLE FROM APRIL 1, 2011, THROUGH JUNE 30, 2011

PMA No./Docket No. Applicant Trade name Approval date

P050050 FDA–2011–M–0323 ...... Small Bone Innovations, Inc ...... Scandinavian total ankle replacement system ...... May 27, 2009. P060004(S1) FDA–2011–M–0256 Carl Zeiss Meditec, Inc ...... Meditec MEL 80 excimer laser system ...... March 28, 2011. P100040 FDA–2011–M–0257 ...... Medtronic Vascular ...... Valiant thoracic stent graft system ...... April 1, 2011. H100002 FDA–2011–M–0241 ...... NeuroVasx, Inc ...... cPAX aneurysm treatment system ...... April 1, 2011. P100018 FDA–2011–M–0284...... Chestnut Medical Technologies, Pipeline embolization device ...... April 6, 2011. Inc. P100034 FDA–2011–M–0295 ...... NovoCure, Ltd ...... NovoCure Ltd.’s NovoTTF–100A treatment kit ...... April 8, 2011. P100020 FDA–2011–M–0300 ...... Roche Molecular Systems, Inc ..... cobas HPV test ...... April 19, 2011. P100029 FDA–2011–M–0296 ...... St. Jude Medical, Inc ...... Trifecta heart valve ...... April 20, 2011. P100023 FDA–2011–M–0342 ...... Boston Scientific Corp ...... ION paclitaxel-eluting coronary stent system (mono- April 22, 2011. rail and over-the-wire systems). P930014 (S45) FDA–2011–M– Alcon Research, Ltd ...... AcrySof toric IOL and AcrySof IQ toric IOL ...... May 3, 2011. 0338. P040012 (S34) FDA–2011–M– Abbott Vascular, Inc ...... RX Acculink carotid stent system ...... May 6, 2011. 0343. P090028 FDA–2011–M–0348 ...... Ortho-Clinical Diagnostics, Inc ...... Vitros immunodiagnostic products HBeAg reagent May 11, 2011. pack/products HBeAg calibrator/products HBe controls. P100017 FDA–2011–M–0349 ...... Abbott Molecular, Inc ...... Abbott RealTime HCV, Abbott RealTime HCV am- May 17, 2011. plification reagent kit, Abbott RealTime HCV con- trol kit, Abbott RealTime HCV calibrator kit, and optional UNG Uracil-N-glycosylase. P100013 FDA–2011–M–0430 ...... Cordis Corp ...... Cordis ExoSeal vascular closure device ...... May 19, 2011. P070015 (S54) FDA–2011–M– Abbott Vascular ...... Xience nano everolimus-eluting coronary stent sys- May 24, 2011. 0431. tem and Promus everolimus-eluting coronary stent system. P100014 FDA–2011–M–0445 ...... Oceana Therapeutics, Inc ...... Solesta injectable gel ...... May 27, 2011. P090002 FDA–2011–M–0470 ...... Depuy Orthopaedics, Inc ...... Pinnacle complete acetabular hip system ...... June 13, 2011. P100027 FDA–2011–M–0472 ...... Ventana Medical Systems, Inc ..... INFORM HER2 dual ISH DNA probe cocktail ...... June 14, 2011. P100031 FDA–2011–M–0502...... Roche Diagnostics Corp...... Elecsys anti-HBc immunoassay and Elecsys June 22, 2011. PreciControl anti-HBc for use on the modular Analytics E170 immunoassay analyzer. P100032 FDA–2011–M–0503...... Roche Diagnostics Corp...... Elecsys anti-HBc immunoassay and Elecsys June 27, 2011. PreciControl anti-HBc for use on the Elecsys 2010 immunoassay analyzer.

II. Electronic Access DEPARTMENT OF HEALTH AND Drug Administration (FDA) is required HUMAN SERVICES to report annually in the Federal Persons with access to the Internet Register on the status of postmarketing may obtain the documents at http:// Food and Drug Administration requirements and commitments www.fda.gov/cdrh/pmapage.html. [Docket No. FDA–2011–N–0332] required of, or agreed upon by, holders Dated: July 29, 2011. of approved drug and biological Nancy K. Stade, Report on the Performance of Drug products. This notice is the Agency’s Deputy Director for Policy, Center for Devices and Biologics Firms in Conducting report on the status of the studies and and Radiological Health. Postmarketing Requirements and clinical trials that applicants have agreed to, or are required to, conduct. [FR Doc. 2011–19734 Filed 8–3–11; 8:45 am] Commitments; Availability BILLING CODE 4160–01–P AGENCY: Food and Drug Administration, FOR FURTHER INFORMATION CONTACT: Beth HHS. Duvall-Miller, Center for Drug ACTION: Notice of availability. Evaluation and Research, Food and Drug Administration, 10903 New SUMMARY: Under the Food and Drug Hampshire Ave., Bldg. 22, Rm. 6466, Administration Modernization Act of Silver Spring, MD 20993–0002, 301– 1997 (Modernization Act), the Food and 796–0700; or Stephen Ripley, Center for

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00072 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47212 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Biologics Evaluation and Research FDAAA, FDA has been given additional made after that date. Therefore, studies (HFM–17), Food and Drug authority to require applicants to and clinical trials required under Administration, 1400 Rockville Pike, conduct and report on postmarketing FDAAA are covered by the reporting Rockville, MD 20852, 301–827–6210. studies and clinical trials to assess a requirements in these regulations. SUPPLEMENTARY INFORMATION: known serious risk, assess signals of Sections 314.81(b)(2)(vii) and 601.70 serious risk, or identify an unexpected require applicants of approved drug and I. Background serious risk related to the use of a biological products to submit annually a A. The Modernization Act product. This new authority became report on the status of each clinical effective on March 25, 2008. FDA may Section 130(a) of the Modernization safety, clinical efficacy, clinical now take enforcement action against Act (Pub. L. 105–115) amended the pharmacology, and nonclinical applicants who fail to conduct studies Federal Food, Drug, and Cosmetic Act toxicology study/clinical trial either and clinical trials required under (the FD&C Act) by adding a new required by FDA or that they have FDAAA, as well as studies and clinical provision requiring reports of certain committed to conduct, either at the time trials required under FDA regulations postmarketing studies, including of approval or after approval of their (see sections 505(o)(1), 502(z), and clinical trials, for human drug and NDA, ANDA, or BLA. The status of 303(f)(4) of the FD&C Act (21 U.S.C. biological products (section 506B of the PMCs concerning chemistry, 355(o)(1), 352(z), and 333(f)(4))). FD&C Act (21 U.S.C. 356b)). Section manufacturing, and production controls Although regulations implementing and the status of other studies/clinical 506B of the FD&C Act provides FDA the Modernization Act postmarketing with additional authority to monitor the trials conducted on an applicant’s own authorities use the term ‘‘postmarketing initiative are not required to be reported progress of a postmarketing study or commitment’’ to refer to both required clinical trial that an applicant has been under §§ 314.81(b)(2)(vii) and 601.70 studies and studies applicants agree to and are not addressed in this report. It required to, or has agreed to, conduct by conduct, in light of the new authorities requiring the applicant to submit a should be noted, however, that enacted in FDAAA, FDA has decided it applicants are required to report to FDA report annually providing information is important to distinguish between on the status of the postmarketing on these commitments made for NDAs enforceable postmarketing requirements and ANDAs under § 314.81(b)(2)(viii). study/clinical trial. This report must and unenforceable postmarketing also include reasons, if any, for failure Furthermore, section 505(o)(3)(E) of the commitments. Therefore, in this notice FD&C Act, as amended by FDAAA, to complete the study/clinical trial. and report, FDA refers to studies/ These studies and clinical trials are requires that applicants report clinical trials that an applicant is periodically on the status of each intended to further define the safety, required to conduct as ‘‘postmarketing efficacy, or optimal use of a product, required study/clinical trial and each requirements’’ (PMRs) and studies/ study/clinical trial ‘‘otherwise and therefore play a vital role in fully clinical trials that an applicant agrees to undertaken * * * to investigate a safety characterizing the product. but is not required to conduct as issue * * *.’’ Under the Modernization Act, ‘‘postmarketing commitments’’ (PMCs). commitments to conduct postmarketing Both are addressed in this notice and According to the regulations, once a studies or clinical trials included both report. PMR has been required, or a PMC has studies/clinical trials that applicants been agreed upon, an applicant must agreed to conduct, as well as studies/ C. FDA’s Implementing Regulations report on the progress of the PMR/PMC clinical trials that applicants were On October 30, 2000 (65 FR 64607), on the anniversary of the product’s required to conduct under FDA FDA published a final rule approval until the PMR/PMC is regulations.1 implementing section 130 of the completed or terminated and FDA Modernization Act. This rule modified determines that the PMR/PMC has been B. The Food and Drug Administration fulfilled or that the PMR/PMC is either Amendments Act of 2007 the annual report requirements for new drug applications (NDAs) and no longer feasible or would no longer On September 27, 2007, the President abbreviated new drug applications provide useful information. The annual signed Public Law 110–85, the Food and (ANDAs) by revising § 314.81(b)(2)(vii) progress report must include a Drug Administration Amendments Act (21 CFR 314.81(b)(2)(vii)). The rule also description of the PMR/PMC, a schedule of 2007 (FDAAA). Section 901, in Title created a new annual reporting for completing the PMR/PMC, and a IX of FDAAA, created a new section requirement for biologics license characterization of the current status of 505(o) of the FD&C Act authorizing FDA applications (BLAs) by establishing the PMR/PMC. The report must also to require certain studies and clinical § 601.70 (21 CFR 601.70). The rule provide an explanation of the PMR/PMC trials for human drug and biological described the content and format of the status by describing briefly the progress products approved under section 505 of annual progress report, and clarified the of the PMR/PMC. A PMR/PMC schedule the FD&C Act or section 351 of the scope of the reporting requirement and is expected to include the actual or Public Health Service Act. Under the timing for submission of the annual projected dates for the following: progress reports. The rule became (1) Submission of the final protocol to 1 Before passage of the Food and Drug effective on April 30, 2001. The FDA, (2) completion of the study/ Administration Amendments Act of 2007 (FDAAA), clinical trial, and (3) submission of the FDA could require postmarketing studies and regulations apply only to human drug clinical trials under the following circumstances: and biological products approved under final report to FDA. The status of the To verify and describe clinical benefit for a human NDAs, ANDAs, and BLAs. They do not PMR/PMC must be described in the drug approved in accordance with the accelerated apply to animal drugs or to biological annual report according to the following approval provisions in section 506(b)(2)(A) of the products regulated under the medical definitions: FD&C Act (21 CFR 314.510 and 601.41); for a drug • approved on the basis of animal efficacy data device authorities. Pending: The study/clinical trial because human efficacy trials are not ethical or The reporting requirements under has not been initiated (i.e., no subjects feasible (21 CFR 314.610(b)(1) and 601.91(b)(1)); §§ 314.81(b)(2)(vii) and 601.70 apply to have been enrolled or animals dosed), and for marketed drugs that are not adequately but does not meet the criteria for labeled for children under section 505B of the PMRs and PMCs made on or before the FD&C Act (Pediatric Research Equity Act (21 U.S.C. enactment of the Modernization Act delayed (i.e., the original projected date 355c; Pub. L. 108–155)). (November 21, 1997), as well as those for initiation of subject accrual or

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00073 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47213

initiation of animal dosing has not GuidanceComplianceRegulatory schedule PMRs/PMCs that have missed passed); Information/Post-marketing one of the original milestone dates are • Ongoing: The study/clinical trial is PhaseIVCommitments/default.htm. categorized as delayed or terminated. proceeding according to or ahead of the Neither the Web site nor this notice The tables include data as of September original schedule; include information about PMCs 30, 2010. • Delayed: The study/clinical trial is concerning chemistry, manufacturing, Table 1 of this document provides an behind the original schedule; and controls. It is FDA policy not to overall summary of the data on all PMRs • Terminated: The study/clinical trial post information on the Web site until and PMCs. Tables 2 and 3 of this was ended before completion, but a it has been reviewed for accuracy. document provide detail on PMRs. final report has not been submitted to Numbers published in this notice Table 2 of this document provides FDA; or cannot be compared with the numbers additional detail on the status of on- • Submitted: The study/clinical trial resulting from searches of the Web site schedule PMRs. has been completed or terminated, and because this notice incorporates totals Table 1 of this document shows that a final report has been submitted to for all PMRs/PMCs in FDA databases, most PMRs (91 percent for NDAs/ FDA. including PMRs/PMCs undergoing ANDAs and 88 percent for BLAs) and Databases containing information on review for accuracy. In addition, the most PMCs (84 percent for NDAs/ PMRs/PMCs are maintained at the report in this notice will be updated ANDAs and 77 percent for BLAs) are on Center for Drug Evaluation and Research annually while the Web site is updated schedule. Overall, of the PMRs that are (CDER) and the Center for Biologics quarterly (i.e., in January, April, July, pending (i.e., have not been initiated), Evaluation and Research (CBER). and October). 92 percent were created within the past II. Summary of Information From Many applicants have more than one 3 years. Table 2 of this document shows Postmarketing Status Reports approved product and for many that 53 percent of pending PMRs for products there is more than one PMR or drug and biological products are in This report, published to fulfill the PMC. Specifically, there were 164 response to the Pediatric Research and annual reporting requirement under the unique applicants with 233 NDAs/ Equity Act (PREA), under which FDA Modernization Act, summarizes the ANDAs that had open PMRs/PMCs. requires sponsors to study new drugs, status of PMRs and PMCs as of There were 69 unique applicants with when appropriate, for pediatric September 30, 2010. If a requirement or 87 BLAs that had open PMRs/PMCs. populations. Under section 505B(a)(3) of commitment did not have a schedule, or Annual status reports are required to the FD&C Act, the initiation of these a postmarketing progress report was not be submitted for each open PMR/PMC studies generally is deferred until received in the previous 12 months, the within 60 days of the anniversary date required safety information from other PMR/PMC is categorized according to of U.S. approval of the original studies has first been submitted and the most recent information available to reviewed. PMRs for products approved 2 application. In fiscal year 2010 (FY10), the Agency. 20 percent (36/184) of NDA/ANDA and under the animal efficacy rule (21 CFR Information in this report covers any 36 percent (31/87) of BLA annual status 314.600 for drugs; 21 CFR 601.90 for PMR/PMC that was made, in writing, at reports were not submitted within 60 biological products) can be conducted the time of approval or after approval of days of the anniversary date of U.S. only when the product is used for its an application or a supplement to an approval of the original application. Of indication as a counterterrorism application, including PMRs required the annual status reports due but not measure. In the absence of a public under FDAAA (section 505(o)(3) of the submitted on time, 100 percent of the health emergency, these studies/clinical FD&C Act), PMRs required under FDA NDA/ANDA and 52 percent (16/31) of trials will remain pending indefinitely. regulations (e.g., PMRs required to the BLA reports were submitted before The next largest category of pending demonstrate clinical benefit of a product the close of FY10 (September 30, 2010). PMRs for drug and biological products following accelerated approval (see Most PMRs are progressing on (45 percent) comprises those studies/ footnote 1 of this document)), and PMCs schedule (91 percent for NDAs/ANDAs; clinical trials required by FDA under agreed to by the applicant. 88 percent for BLAs). Most PMCs are FDAAA, which became effective on Information summarized in this report also progressing on schedule (84 percent March 25, 2008. includes the following: (1) The number for NDAs/ANDAs; 77 percent for BLAs). Table 3 of this document provides of applicants with open (uncompleted) Most of the PMCs that are currently additional detail on the status of off- PMRs/PMCs, (2) the number of open listed in the database were developed schedule PMRs. The majority of off- PMRs/PMCs, (3) the status of open before the postmarketing requirements schedule PMRs (which account for 9 PMRs/PMCs as reported in section of FDAAA took effect.3 percent of the total for NDAs/ANDAs § 314.81(b)(2)(vii) or § 601.70 annual and 12 percent for BLAs) are delayed reports, (4) the status of concluded III. About This Report according to the original schedule PMRs/PMCs as determined by FDA, and This report provides six separate milestones (96 percent (47/49) for (5) the number of applications with summary tables. The tables in this NDAs/ANDAs; 94 percent (17/18) for open PMRs/PMCs for which applicants document distinguish between PMRs BLAs). In certain situations, the original did not submit an annual report within and PMCs and between on-schedule and schedules may have been adjusted for 60 days of the anniversary date of U.S. off-schedule PMRs and PMCs according unanticipated delays in the progress of approval. to the original schedule milestones. On- the study/clinical trial (e.g., difficulties Additional information about PMRs/ schedule PMRs/PMCs are categorized as with subject enrollment in a trial for a PMCs submitted by applicants to CDER pending, ongoing, or submitted. Off- marketed drug or need for additional and CBER is provided on FDA’s Web time to analyze results). In this report, site at http://www.fda.gov/Drugs/ 3 There are existing PMCs established before study/clinical trial status reflects the FDAAA that might meet current FDAAA standards status in relation to the original study/ 2 Although the data included in this report do not for required safety studies/clinical trials under clinical trial schedule regardless of include a summary of reports that applicants have section 505(o)(3)(B) of the FD&C Act. Under section failed to file by their due date, the Agency notes 505(o)(3)(c) of the FD&C Act, the Agency may whether FDA has acknowledged that that it may take appropriate regulatory action in the convert pre-existing PMCs into PMRs if it becomes additional time may be required to event reports are not filed on a timely basis. aware of new safety information. complete the study/clinical trial.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00074 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47214 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Tables 4 and 5 of this document schedule PMCs. The majority of off- sponsor regarding studies/clinical trials provide additional detail on the status schedule PMCs (which account for 16 that may require more time for of PMCs. Table 4 of this document percent for NDAs/ANDAs and 23 completion. provides additional detail on the status percent for BLAs) are delayed according Table 6 of this document provides of on-schedule PMCs. Pending PMCs to the original schedule milestones (91 details about PMRs and PMCs that were comprise 50 percent (201/399) of the on- percent (67/74) for NDAs/ANDAs; 97 concluded in the previous year. The schedule NDA/ANDA PMCs and 28 percent (69/71) for BLAs). As noted majority of concluded PMRs and PMCs percent (66/236) of the on-schedule BLA previously in this document, this report were fulfilled (57 percent of NDA/ PMCs. reflects the original due dates for study/ ANDA PMRs and 40 percent of BLA Table 5 of this document provides clinical trial results and does not reflect PMRs; 85 percent of NDA/ANDA PMCs additional details on the status of off- discussions between the Agency and the and 84 percent of BLA PMCs).

TABLE 1—SUMMARY OF POSTMARKETING REQUIREMENTS AND COMMITMENTS [Numbers as of September 30, 2010]

NDA/ANDA BLA (% of total PMR (% of total PMR or % of total or % of total PMC) PMC) 1

Number of open PMRs ...... 526 149 On-schedule open PMRs (see table 2 of this document) ...... 477 (91%) 131 (88%) Off-schedule open PMRs (see table 3 of this document) ...... 49 (9%) 18 (12%) Number of open PMCs ...... 473 307 On-schedule open PMCs (see table 4 of this document) ...... 399 (84%) 236 (77%) Off-schedule open PMCs (see table 5 of this document) ...... 74 (16%) 71 (23%) 1 On October 1, 2003, FDA completed a consolidation of certain therapeutic products formerly regulated by CBER into CDER. Consequently, CDER now reviews many BLAs. Fiscal year statistics for postmarketing requirements and commitments for BLAs reviewed by CDER are in- cluded in BLA totals in this table.

TABLE 2—SUMMARY OF ON-SCHEDULE POSTMARKETING REQUIREMENTS [Numbers as of September 30, 2010]

NDA/ANDA BLA On-schedule open PMRs (% of total PMR) (% of total PMR) 1

Pending (by type): Accelerated approval ...... 7 2 PREA 2 ...... 217 27 Animal efficacy 3 ...... 1 0 FDAAA safety (since March 25, 2008) ...... 145 62

Total ...... 370 (70%) 91 (61%) Ongoing: Accelerated approval ...... 12 7 PREA 2 ...... 26 2 Animal efficacy 3 ...... 0 0 FDAAA safety (since March 25, 2008) ...... 28 22

Total ...... 66 (13%) 31 (21%) Submitted: Accelerated approval ...... 5 3 PREA 2 ...... 22 4 Animal efficacy 3 ...... 0 0 FDAAA safety (since March 25, 2008) ...... 14 2

Total ...... 41 (8%) 9 (6%)

Combined total ...... 477 (91%) 131 (88%) 1 See note 1 for table 1 of this document. 2 Many PREA studies have a pending status. PREA studies are usually deferred because the product is ready for approval in adults. Initiation of these studies also may be deferred until additional safety information from other studies has first been submitted and reviewed. 3 PMRs for products approved under the animal efficacy rule (21 CFR 314.600 for drugs; 21 CFR 601.90 for biological products) can be con- ducted only when the product is used for its indication as a counterterrorism measure. In the absence of a public health emergency, these stud- ies/clinical trials will remain pending indefinitely.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47215

TABLE 3—SUMMARY OF OFF-SCHEDULE POSTMARKETING REQUIREMENTS [Numbers as of September 30, 2010]

NDA/ANDA BLA Off-schedule open PMRs (% of total PMR) (% of total PMR) 1

Delayed: Accelerated approval ...... 5 2 PREA ...... 39 11 Animal efficacy ...... 1 0 FDAAA safety (since March 25, 2008) ...... 2 4

Total ...... 47 (9%) 17 (11%) Terminated ...... 2 (0.4%) 1 (0.7%)

Combined total ...... 49 (9%) 18 (12%)

1 See note 1 for table 1 of this document.

TABLE 4—SUMMARY OF ON-SCHEDULE POSTMARKETING COMMITMENTS [Numbers as of September 30, 2010]

NDA/ANDA BLA On-schedule open PMCs (% of total PMC) (% of total PMC) 1

Pending ...... 201 (42%) 66 (21%) Ongoing ...... 87 (18%) 95 (31%) Submitted ...... 111 (23%) 75 (24%)

Combined total ...... 399 (84%) 236 (77%)

1 See note 1 for table 1 of this document.

TABLE 5—SUMMARY OF OFF-SCHEDULE POSTMARKETING COMMITMENTS [Numbers as of September 30, 2010]

NDA/ANDA BLA Off-schedule open PMCs (% of total PMC) (% of total PMC) 1

Delayed ...... 67 (14%) 69 (22%) Terminated ...... 7 (1%) 2 (0.7%)

Combined total ...... 74 (16%) 71 (23%)

1 See note 1 for table 1 of this document.

TABLE 6—SUMMARY OF CONCLUDED POSTMARKETING REQUIREMENTS AND COMMITMENTS (OCTOBER 1, 2009 TO OCTOBER 1, 2010)

NDA/ANDA BLA (% of total) (% of total) 1

Concluded PMRs: Requirement met (fulfilled) ...... 25 (57%) 4 (40%) Requirement not met (released and new revised requirement issued) ...... 10 (23%) 0 Requirement no longer feasible or product withdrawn (released) ...... 9 (20%) 6 (60%)

Total ...... 44 10 Concluded PMCs: Commitment met (fulfilled) ...... 174 (85%) 51 (84%) Commitment not met (released and new revised requirement/commitment issued) ...... 25 (12%) 1 (2%) Commitment no longer feasible or product withdrawn (released) ...... 5 (2%) 9 (15%)

Total ...... 204 61

1 See note 1 for table 1 of this document.

VerDate Mar<15>2010 18:39 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00076 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47216 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Dated: August 1, 2011. Secretary of Health and Human Services Dated: July 29, 2011. Leslie Kux, (HHS), administers all statutory Mary K. Wakefield, Acting Assistant Commissioner for Policy. authorities related to the operation of Administrator. [FR Doc. 2011–19806 Filed 8–3–11; 8:45 am] the National Vaccine Injury [FR Doc. 2011–19804 Filed 8–3–11; 8:45 am] BILLING CODE 4160–01–P Compensation Program (VICP) by: (1) BILLING CODE 4165–15–P Evaluating petitions for compensation filed under the VICP through medical DEPARTMENT OF HEALTH AND review and assessment of DEPARTMENT OF HEALTH AND HUMAN SERVICES compensability for all complete claims; HUMAN SERVICES (2) processing awards for compensations Health Resources and Services National Institutes of Health Administration made under the VICP; (3) promulgating regulations to revise the Vaccine Injury Expediting Research Tools to NIH Statement of Organization, Functions Table; (4) providing professional and Licensees Through the Use of Pay.gov and Delegations of Authority administrative support to the Advisory for Rapid Processing of Royalty Commission on Childhood Vaccines This notice amends Part R of the Payments (ACCV); (5) developing and maintaining Statement of Organization, Functions all automated information systems AGENCY: National Institutes of Health, and Delegations of Authority of the Public Health Service, HHS. Department of Health and Human necessary for program implementation; Services (HHS), Health Resources and (6) providing and disseminating ACTION: Notice. Services Administration (HRSA) (60 FR program information; (7) maintaining a 56605, as amended November 6, 1995; working relationship with the SUMMARY: NIH licensees can now as last amended at 76 FR 45584–45585 Department of Justice (DOJ) and the U.S. expedite the receipt of research tools dated July 29, 2011). Court of Federal Claims (the Court) in through the use of Pay.gov for rapid This notice reflects organizational the administration and operation of the processing of their royalty payments. changes to the Health Resources and VICP; (8) providing management, SUPPLEMENTARY INFORMATION: With its Services Administration. Specifically, direction, budgetary oversight, introduction earlier this year, NIH this notice updates the Division of coordination, and logistical support for licensees have found that using the new Vaccine Injury Compensation (RR4) the Medical Expert Panel (MEP) royalty payment site within Pay.gov functional statement to better align contracts as well as Clinical Reviewer expedites processing times for shipment functional responsibility, improve the Contracts; (9) maintaining responsibility of their research tools licensed from the management and delivery of for activities related to the ACCV, the NIH and FDA intramural research information technology services, development of policy, regulations, programs. The value of such time improve management and budget formulation, and legislation, savings to corporate R&D programs is administrative efficiencies, and including the development and renewal not trivial since waiting too long to optimize use of available staff resources of the ACCV charter and action secure research materials or tools can within the Healthcare Systems Bureau delay or sink a critical drug memoranda to the Secretary, and the (RR). development program or other business analysis of the findings and proposals of venture. By eliminating the need for Chapter RR—Healthcare Systems the ACCV; (10) developing, reviewing, Bureau bank checks, the bank-to-bank transfer and analyzing pending and new system at Pay.gov has shortened the Section RR–10, Organization legislation relating to program changes, processing time for research tool and new initiatives, the ACCV, and changes Delete in its entirety and replace with other license agreements from several the following: to the Vaccine Injury Table, in months down to a day or less. For The Healthcare Systems Bureau (RR) coordination with the Office of the example, a recent transaction for is headed by the Associate General Counsel (OGC); (11) providing baculovirus vectors at NIH was indeed Administrator, who reports directly to programmatic outreach efforts to processed in a single afternoon allowing the Administrator, Health Resources maximize public exposure to private for almost instantaneous release of the and Services Administration. The and public constituencies; (12) licensed materials from the inventors Healthcare Systems Bureau includes the providing submission of special reports laboratory. following components: to the Secretary of HHS, the Office of Informal comments that NIH has (1) Office of the Associate Management and Budget, the Congress, received to date from licensees who Administrator (RR); and other governmental bodies; and (13) have started to use Pay.gov for their (2) Division of Transplantation (RR1); providing the coordination of ACCV royalty payments include: ‘‘For Pay.gov, (3) Division of Health Facilities (RR9); travel, personnel, meeting sites, and its it’s easy, convenient and fast, I guess (4) Division of Vaccine Injury agenda. that’s what I experienced.’’, ‘‘It literally Compensation (RR4); and only took me about 5 minutes after (5) Office of Pharmacy Affairs (RR7). Section RR–30, Delegations of Authority reading the email/letter to process Section RR–20, Functions All delegations of authority and re- payment. Great service!’’ and ‘‘I just (1) Delete the functional statement for delegations of authority made to HRSA completed sending all the MAR the Division of Vaccine Injury officials that were in effect immediately payments and it was great! I am glad I decided to try the system.’’ Compensation (RR4) and replace in its prior to this reorganization, and that are entirety. consistent with this reorganization, Pay.gov itself is a multifaceted web- shall continue in effect pending further based application allowing anyone to Division of Vaccine Injury make Automated Clearing House (ACH) re-delegation. Compensation (RR4) payments to government agencies by The Division of Vaccine Injury This reorganization is effective upon debit from a checking or savings Compensation (DVIC), on behalf of the date of signature. account. Pay.gov is open 24–7, and is

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00077 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47217

encouraged for use in all types of threonine kinase complex, is a critical clones. Podocin mRNA was absent from royalty payments with NIH. regulator of the cell cycle. Recent all clones. The expression of nephrin, FOR FURTHER INFORMATION CONTACT: studies showed that cells immortalized Wilms tumor 1 (WT1), and podocalyxin Companies looking to save time on their with CDK4 are useful to study mRNA varied among the clones, which royalty transactions with NIH can easily pathophysiology. NIH investigators have may be due to transformation and/or pay royalties on Pay.gov by going to generated mouse podocytes transformed cloning. These novel human urine- https://www.pay.gov and clicking on with CDK4 as a nonviral immortalizing derived podocyte-like epithelial cell NIH in the agency list. Pay.gov is gene. These transformed podocytes lines (HUPECs) generated from urine of maintained by the U.S. Department of show podocyte characteristics and patients and healthy volunteers will be the Treasury. For more information express podocyte markers. Furthermore, useful to study podocyte cell biology. about the Pay.gov system itself, visit confluent CDK4-podocyte cultures show Development Stage: https://www.pay.gov/paygov/faqs.html. higher levels of gene expression for • Early-stage. • Pre-clinical. Dated: July 28, 2011. multiple podocyte differentiation genes compared with subconfluent or lower • In vitro data available. Steven M. Ferguson, density culture. Potential Commercial Applications: • Deputy Director, Licensing & Development Stage: Model system for study of Entrepreneurship, Office of Technology • Early-stage. glomerular disorders. Transfer, National Institutes of Health. • Pre-clinical. • Useful tools to study podocyte [FR Doc. 2011–19821 Filed 8–3–11; 8:45 am] • In vitro data available. biology. BILLING CODE 4140–01–P Potential Commercial Applications: Competitive Advantage: These • Model system for study of podocyte-like cells are unique and novel glomerular disorders. compared to the currently available DEPARTMENT OF HEALTH AND • Useful tools to study podocyte podocyte cells because these are HUMAN SERVICES biology. obtained from individuals with Competitive Advantage: Better model glomerular disease. National Institutes of Health system to study podocyte structure and Inventors: Drs. Toru Sakairi and Government-Owned Inventions; function. Jeffrey B. Kopp (NIDDK). Availability for Licensing Inventors: Drs. Toru Sakairi and Publication: Sakairi T, et al. Jeffrey B. Kopp (NIDDK). Conditionally immortalized human AGENCY: National Institutes of Health, Publication: Sakairi T, et al. Cell-cell podocyte cell lines established from Public Health Service, HHS. contact regulates gene expression in urine. Am J Physiol Renal Physiol. 2010 ACTION: Notice. CDK4-transformed mouse podocytes. Mar;298(3):F557–67. [PMID: 19955187] Am J Physiol Renal Physiol. 2010 Intellectual Property: HHS Reference SUMMARY: The inventions listed below Oct;299(4):F802–809. [PMID: 20668098]. No. E–252–2010/0—Research Tool. are owned by an agency of the U.S. Intellectual Property: HHS Reference Patent protection is not being pursued Government and are available for No. E–287–2010/0—Research Tool for this technology. licensing in the U.S. in accordance with (Materials available for licensing: CDK4 Related Technologies: 35 U.S.C. 207 to achieve expeditious podocytes). Patent protection is not • HHS Reference No. E–049–2007/ commercialization of results of being pursued for this technology. 0—Model for Study of Glomerular federally-funded research and Related Technology: HHS Reference Disorders: Conditionally-Immortalized development. Foreign patent No. E–049–2007/0—Model for Study of Mouse Podocyte Cell Line with Tet-on- applications are filed on selected Glomerular Disorders: Conditionally- Regulated Gene Expression (Dr. Jefferey inventions to extend market coverage Immortalized Mouse Podocyte Cell Line B. Kopp, NIDDK). for companies and may also be available with Tet-on-Regulated Gene Expression • HHS Reference No. E–287–2010/ for licensing. (Dr. Jefferey B. Kopp, NIDDK). 0—CDK4–Transformed Mouse ADDRESSES: Licensing information and Licensing Contact: Suryanarayana Podocytes Useful for Studying copies of the U.S. patent applications (Sury) Vepa, PhD; 301–435–5020; Glomerular Diseases (Drs. Toru Sakairi listed below may be obtained by writing [email protected]. and Jeffrey B. Kopp, NIDDK) to the indicated licensing contact at the Licensing Contact: Suryanarayana Conditionally Immortalized Human Office of Technology Transfer, National (Sury) Vepa, PhD; 301–435–5020; Podocyte Cell Lines Institutes of Health, 6011 Executive [email protected]. Boulevard, Suite 325, Rockville, Description of Technology: Podocytes, An In-Vitro Cell System Useful For Maryland 20852–3804; telephone: 301– cells of the visceral epithelium in the Identification of RORg Antagonists 496–7057; fax: 301–402–0220. A signed kidneys, are a key component of the Confidential Disclosure Agreement will glomerular filtration barrier. Podocyte Description of Technology: The be required to receive copies of the damage and loss contribute to the retinoid-related orphan receptors alpha, patent applications. initiation of glomerular diseases. NIH beta and gamma (RORa, b and g, also investigators recently established long- referred to as NR1F1, 2 and 3, CDK4–Transformed Mouse Podocytes term urinary cell cultures from two respectively) comprise a distinct Useful for Studying Glomerular patients with focal segmental subfamily of nuclear receptors. Study of Diseases glomerulosclerosis and two healthy ROR-deficient mice has implicated Description of Technology: Podocytes, volunteers, via transformation with the RORs in the regulation of a number of cells of the visceral epithelium in the thermosensitive SV40 large T antigen biological processes and revealed kidneys, are a key component of the (U19tsA58) together with human potential roles for these proteins in glomerular filtration barrier. Podocyte telomerase (hTERT). Characterization of several pathologies. NIH investigators damage and loss contribute to the randomly selected clonal cell lines from have developed an in-vitro system using initiation of glomerular diseases. Cyclin- each human subject showed mRNA CHO cells stably expressing a TET-On dependent kinase 4 (CDK4), a catalytic expression for the podocyte markers expression vector regulating RORg and a subunit of the cyclin D–CDK4 serine/ synaptopodin, nestin, and CD2AP in all RORE-Luciferase reporter. This system

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00078 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47218 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

allows inducible expression of RORg Dated: July 27, 2011. Agenda: To review and evaluate grant upon addition of doxycycline. Upon its Richard U. Rodriguez, applications. Place: National Institutes of Health, 6701 induction RORg binds to the RORE in Director, Division of Technology Development Rockledge Drive, Bethesda, MD 20892, and Transfer, Office of Technology Transfer, the luciferase reporter plasmid and (Virtual Meeting). National Institutes of Health. induces luciferase. This system can be Contact Person: Roy L. White, PhD, used to identify RORg antagonists. This [FR Doc. 2011–19817 Filed 8–3–11; 8:45 am] Scientific Review Officer, Office of Scientific system has been tested successfully in BILLING CODE 4140–01–P Review/DERA, National Heart, Lung, and 1536-well plate high throughput Blood Institute, 6701 Rockledge Drive, Room analysis. 7176, Bethesda, MD 20892–7924, 301–435– Potential Commercial Applications: DEPARTMENT OF HEALTH AND 0310, [email protected]. Identification of therapeutic compounds HUMAN SERVICES Name of Committee: National Heart, Lung, to treat asthma, inflammation, and and Blood Institute Special Emphasis Panel, National Institutes of Health Ancillary Studies Review. various autoimmune diseases such as Date: August 26, 2011. osteoarthritis, multiple sclerosis. National Institute of Neurological Time: 8 a.m. to 5 p.m. Competitive Advantages: Novel and Disorders and Stroke Amended; Notice Agenda: To review and evaluate grant unique system to screen and identify of Meeting applications. chemical and drugs for their RORg Place: Hyatt Regency Bethesda, One antagonistic activity. Notice is hereby given of a change in Bethesda Metro Center, 7400 Wisconsin Development Stage: the meeting of the National Institute of Avenue, Bethesda, MD 20814. Contact Person: Tony L. Creazzo, PhD, • Early-stage. Neurological Disorders and Stroke • Scientific Review Officer, Office of Scientific Pre-clinical. Special Emphasis Panel, August 2, 2011, Review/DERA, National Heart, Lung, and • In vitro data available. 9 a.m. to August 2, 2011, 3 p.m., Blood Institute, 6701 Rockledge Drive, Room Inventors: Drs. Yukimasa Takeda and National Institutes of Health, 7180, Bethesda, MD 20892–7924, 301–435– Anton M. Jetten (NIEHS). Neuroscience Center, 6001 Executive 0725, [email protected]. Publications: Boulevard, Rockville, MD 20852 which Name of Committee: National Heart, Lung, 1. Jetten AM. Retinoid-related was published in the Federal Register and Blood Institute Special Emphasis Panel, receptors (RORs): Critical roles in on July 20, 2011, 76FFRN43333–43334. Research Dissemination and Implementation development, immunity, circadian The meeting has been rescheduled for Grants. rhythm, and cellular metabolism. Nucl August 23, 2011. The time and meeting Date: August 26, 2011. Time: 1 p.m. to 4 p.m. Recept Signal. 2009;7:1–32. [PMID: location remain the same. The meeting is closed to the public. Agenda: To review and evaluate grant 19381306]. applications. 2. Yang XO, et al. T helper 17 lineage Dated: July 29, 2011. Place: National Institutes of Health, 6701 differentiation is programmed by Jennifer S. Spaeth, Rockledge Drive, Bethesda, MD 20892, orphan receptors ROR alpha and ROR Director, Office of Federal Advisory (Telephone Conference Call). gamma. Immunity 2008 Jan;28(1):29–39. Committee Policy. Contact Person: Keith A. Mintzer, PhD, Scientific Review Officer, Review Branch/ [PMID: 18164222]. [FR Doc. 2011–19813 Filed 8–3–11; 8:45 am] 3. Kurebayashi S, et al. Retinoid- DERA, National Heart, Lung, and Blood BILLING CODE 4140–01–P Institute, 6701 Rockledge Drive, Room 7186, related orphan receptor gamma Bethesda, MD 20892–7924, 301–435–0280, (RORgamma) is essential for lymphoid [email protected]. organogenesis and controls apoptosis DEPARTMENT OF HEALTH AND (Catalogue of Federal Domestic Assistance during thymopoiesis. Proc Natl Acad HUMAN SERVICES Program Nos. 93.233, National Center for Sci USA. 2000 Aug 29;97(18):10132– Sleep Disorders Research; 93.837, Heart and 10137. [PMID:10963675]. National Institutes of Health Vascular Diseases Research; 93.838, Lung Intellectual Property: HHS Reference Diseases Research; 93.839, Blood Diseases No. 253–2010/0—Research Tool. Patent National Heart, Lung, and Blood and Resources Research, National Institutes protection is not being pursued for this Institute; Notice of Closed Meetings of Health, HHS) technology. Pursuant to section 10(d) of the Dated: July 29, 2011. Related Technology: HHS Reference Federal Advisory Committee Act, as Jennifer S. Spaeth, No. E–222–2009/0—RORgamma (RORC) amended (5 U.S.C. App.), notice is Director, Office of Federal Advisory Deficient Mice Which Are Useful for the hereby given of the following meetings. Committee Policy. Study of Lymph Node Organogenesis The meetings will be closed to the [FR Doc. 2011–19796 Filed 8–3–11; 8:45 am] and Immune Responses (Dr. Anton M. public in accordance with the BILLING CODE 4140–01–P Jetten, NIEHS). provisions set forth in sections Licensing Contact: Suryanarayana 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., (Sury) Vepa, PhD; 301–435–5020; as amended. The grant applications and DEPARTMENT OF HEALTH AND [email protected]. the discussions could disclose HUMAN SERVICES Collaborative Research Opportunity: confidential trade secrets or commercial The NIEHS, Laboratory of Respiratory property such as patentable material, National Institutes of Health Biology, Cell Biology Group, is seeking and personal information concerning Center for Scientific Review; Notice of statements of capability or interest from individuals associated with the grant Closed Meetings parties interested in collaborative applications, the disclosure of which research to further develop, evaluate, or would constitute a clearly unwarranted Pursuant to section 10(d) of the commercialize retinoid-related orphan invasion of personal privacy. Federal Advisory Committee Act, as receptors (RORs) function in chronic Name of Committee: National Heart, Lung, amended (5 U.S.C. App.), notice is diseases. For collaboration and Blood Institute Special Emphasis Panel, hereby given of the following meetings. opportunities, please contact Elizabeth Training Grant Review. The meetings will be closed to the M. Denholm, PhD at Date: August 24, 2011. public in accordance with the [email protected]. Time: 10:30 a.m. to 4:30 p.m. provisions set forth in sections

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00079 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47219

552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: Center for Scientific a major disaster declaration under the Robert as amended. The grant applications and Review Special Emphasis Panel, Member T. Stafford Disaster Relief and Emergency the discussions could disclose Conflict: Immune Mechanism. Assistance Act, 42 U.S.C. 5121 et seq. (the confidential trade secrets or commercial Date: September 8, 2011. ‘‘Stafford Act’’). Therefore, I declare that such Time: 12 p.m. to 3 p.m. a major disaster exists in the Commonwealth property such as patentable material, Agenda: To review and evaluate grant of Pennsylvania. and personal information concerning applications. In order to provide Federal assistance, you individuals associated with the grant Place: National Institutes of Health, 6701 applications, the disclosure of which Rockledge Drive, Bethesda, MD 20892, are hereby authorized to allocate from funds would constitute a clearly unwarranted (Telephone Conference Call). available for these purposes such amounts as invasion of personal privacy. Contact Person: Scott Jakes, PhD, Scientific you find necessary for Federal disaster Review Officer, Center for Scientific Review, assistance and administrative expenses. Name of Committee: Center for Scientific National Institutes of Health, 6701 Rockledge You are authorized to provide Public Review Special Emphasis Panel, Member Drive, Room 4198, MSC 7812, Bethesda, MD Conflicts: Liver Pathobiology and Assistance in the designated areas and 20892, 301–495–1506, [email protected]. Pharmacology. Hazard Mitigation throughout the Date: August 30, 2011. (Catalogue of Federal Domestic Assistance Commonwealth. Consistent with the Time: 1 p.m. to 4 p.m. Program Nos. 93.306, Comparative Medicine; requirement that Federal assistance is Agenda: To review and evaluate grant 93.333, Clinical Research, 93.306, 93.333, supplemental, any Federal funds provided applications. 93.337, 93.393–93.396, 93.837–93.844, under the Stafford Act for Public Assistance Place: National Institutes of Health, 6701 93.846–93.878, 93.892, 93.893, National and Hazard Mitigation will be limited to 75 Institutes of Health, HHS) Rockledge Drive, Bethesda, MD 20892, percent of the total eligible costs. (Telephone Conference Call). Dated: July 28, 2011. Further, you are authorized to make Contact Person: Peter J. Perrin, PhD, Scientific Review Officer, Center for Jennifer S. Spaeth, changes to this declaration for the approved Scientific Review, National Institutes of Director, Office of Federal Advisory assistance to the extent allowable under the Health, 6701 Rockledge Drive, Room 2180, Committee Policy. Stafford Act. MSC 7818, Bethesda, MD 20892, (301) 435– [FR Doc. 2011–19792 Filed 8–3–11; 8:45 am] The Federal Emergency Management 0682, [email protected]. BILLING CODE 4140–01–P Name of Committee: Center for Scientific Agency (FEMA) hereby gives notice that Review Special Emphasis Panel, Member pursuant to the authority vested in the Conflict: Bioengineering Sciences and Administrator, under Executive Order DEPARTMENT OF HOMELAND Technology. 12148, as amended, Thomas J. McCool, SECURITY Date: August 31, 2011. of FEMA is appointed to act as the Time: 2:30 p.m. to 4 p.m. Agenda: To review and evaluate grant Federal Emergency Management Federal Coordinating Officer for this applications. Agency major disaster. Place: National Institutes of Health, 6701 The following areas of the [Internal Agency Docket No. FEMA–4003– Rockledge Drive, Bethesda, MD 20892, Commonwealth of Pennsylvania have (Telephone Conference Call). DR; Docket ID FEMA–2011–0001] Contact Person: Amy L. Rubinstein, PhD, been designated as adversely affected by Scientific Review Officer, Center for Pennsylvania; Major Disaster and this major disaster: Scientific Review, National Institutes of Related Determinations Bradford, Lycoming, Sullivan, Tioga, and Health, 6701 Rockledge Drive, Room 5152, Wyoming Counties for Public Assistance. MSC 7844, Bethesda, MD 20892, 301–408– AGENCY: Federal Emergency 9754, [email protected]. Management Agency, DHS. All counties within the Commonwealth of Pennsylvania are eligible to apply for Name of Committee: Center for Scientific ACTION: Notice. Review Special Emphasis Panel, Nursing and assistance under the Hazard Mitigation Grant Related Clinical Sciences Overflow. SUMMARY: This is a notice of the Program. Date: September 8–9, 2011. Presidential declaration of a major The following Catalog of Federal Domestic Time: 8:30 a.m. to 5 p.m. disaster for the Commonwealth of Assistance Numbers (CFDA) are to be used Agenda: To review and evaluate grant Pennsylvania (FEMA–4003–DR), dated for reporting and drawing funds: 97.030, applications. Community Disaster Loans; 97.031, Cora Place: Dupont Hotel, 1500 New Hampshire July 13, 2011, and related Avenue, NW., Washington, DC 20036. determinations. Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Contact Person: Katherine Bent, PhD, DATES: Effective Date: July 13, 2011. Scientific Review Officer, Center for Disaster Unemployment Assistance (DUA); Scientific Review, National Institutes of FOR FURTHER INFORMATION CONTACT: 97.046, Fire Management Assistance Grant; Health, 6701 Rockledge Drive, Room 3160, Peggy Miller, Office of Response and 97.048, Disaster Housing Assistance to MSC 7770, Bethesda, MD 20892, 301–435– Recovery, Federal Emergency Individuals and Households In Presidentially 0695, [email protected]. Management Agency, 500 C Street, SW., Declared Disaster Areas; 97.049, Name of Committee: Center for Scientific Washington, DC 20472, (202) 646–3886. Presidentially Declared Disaster Assistance— Review Special Emphasis Panel, Member SUPPLEMENTARY INFORMATION: Notice is Disaster Housing Operations for Individuals Conflict: Cancer Prevention. and Households; 97.050, Presidentially Date: September 8, 2011. hereby given that, in a letter dated July Declared Disaster Assistance to Individuals Time: 1 p.m. to 4 p.m. 13, 2011, the President issued a major Agenda: To review and evaluate grant disaster declaration under the authority and Households—Other Needs; 97.036, applications. of the Robert T. Stafford Disaster Relief Disaster Grants—Public Assistance Place: National Institutes of Health, 6701 and Emergency Assistance Act, 42 (Presidentially Declared Disasters); 97.039, Rockledge Drive, Bethesda, MD 20892, U.S.C. 5121 et seq. (the ‘‘Stafford Act’’), Hazard Mitigation Grant. (Telephone Conference Call). as follows: Contact Person: Lawrence Ka-Yun Ng, W. Craig Fugate, PhD, Scientific Review Officer, Center for I have determined that the damage in Administrator, Federal Emergency Scientific Review, National Institutes of certain areas of the Commonwealth of Management Agency. Pennsylvania resulting from severe storms Health, 6701 Rockledge Drive, Room 6152, [FR Doc. 2011–19771 Filed 8–3–11; 8:45 am] MSC 7804, Bethesda, MD 20892, 301–435– and flooding April 25–28, 2011, is of 1719, [email protected]. sufficient severity and magnitude to warrant BILLING CODE 9111–23–P

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00080 Fmt 4703 Sfmt 9990 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47220 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

DEPARTMENT OF HOMELAND FEMA is appointed to act as the Federal disaster declaration under the authority SECURITY Coordinating Officer for this major of the Robert T. Stafford Disaster Relief disaster. and Emergency Assistance Act, 42 Federal Emergency Management The following areas of the U.S.C. 5121 et seq. (the ‘‘Stafford Act’’), Agency Commonwealth of Puerto Rico have as follows: [Internal Agency Docket No. FEMA–4004– been designated as adversely affected by I have determined that the damage in DR; Docket ID FEMA–2011–0001] this major disaster: certain areas of the State of Tennessee The municipalities of An˜ asco, Caguas, resulting from severe storms, straight-line Puerto Rico; Major Disaster and Camuy, Ciales, Hatillo, Las Piedras, Morovis, winds, tornadoes, and flooding during the Related Determinations Orocovis, San Lorenzo, San Sebastia´n, period of June 18–24, 2011, is of sufficient Utuado, and Villalba. severity and magnitude to warrant a major AGENCY: Federal Emergency All municipalities within the disaster declaration under the Robert T. Management Agency, DHS. Commonwealth of Puerto Rico are eligible to Stafford Disaster Relief and Emergency ACTION: Notice. apply for assistance under the Hazard Assistance Act, 42 U.S.C. 5121 et seq. (the Mitigation Grant Program. ‘‘Stafford Act’’). Therefore, I declare that such SUMMARY: This is a notice of the The following Catalog of Federal Domestic a major disaster exists in the State of Presidential declaration of a major Assistance Numbers (CFDA) are to be used Tennessee. disaster for the Commonwealth of for reporting and drawing funds: 97.030, In order to provide Federal assistance, you Puerto Rico (FEMA–4004–DR), dated Community Disaster Loans; 97.031, Cora are hereby authorized to allocate from funds July 14, 2011, and related Brown Fund; 97.032, Crisis Counseling; available for these purposes such amounts as 97.033, Disaster Legal Services; 97.034, determinations. you find necessary for Federal disaster Disaster Unemployment Assistance (DUA); assistance and administrative expenses. DATES: Effective Date: July 14, 2011. 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to You are authorized to provide Public FOR FURTHER INFORMATION CONTACT: Assistance in the designated areas and Peggy Miller, Office of Response and Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Hazard Mitigation throughout the State. Recovery, Federal Emergency Presidentially Declared Disaster Assistance— Consistent with the requirement that Federal Management Agency, 500 C Street, SW., Disaster Housing Operations for Individuals assistance is supplemental, any Federal Washington, DC 20472, (202) 646–3886. and Households; 97.050, Presidentially funds provided under the Stafford Act for SUPPLEMENTARY INFORMATION: Notice is Declared Disaster Assistance to Individuals Public Assistance and Hazard Mitigation will hereby given that, in a letter dated July and Households—Other Needs; 97.036, be limited to 75 percent of the total eligible 14, 2011, the President issued a major Disaster Grants—Public Assistance costs. disaster declaration under the authority (Presidentially Declared Disasters); 97.039, Further, you are authorized to make Hazard Mitigation Grant. of the Robert T. Stafford Disaster Relief changes to this declaration for the approved assistance to the extent allowable under the and Emergency Assistance Act, 42 W. Craig Fugate, Stafford Act. U.S.C. 5121 et seq. (the ‘‘Stafford Act’’), Administrator, Federal Emergency as follows: Management Agency. The Federal Emergency Management I have determined that the damage in [FR Doc. 2011–19773 Filed 8–3–11; 8:45 am] Agency (FEMA) hereby gives notice that certain areas of the Commonwealth of Puerto BILLING CODE 9111–23–P pursuant to the authority vested in the Rico resulting from severe storms, flooding, Administrator, under Executive Order mudslides, and landslides during the period 12148, as amended, W. Montague of May 20 to June 8, 2011, is of sufficient DEPARTMENT OF HOMELAND Winfield, of FEMA is appointed to act severity and magnitude to warrant a major SECURITY as the Federal Coordinating Officer for disaster declaration under the Robert T. this major disaster. Stafford Disaster Relief and Emergency Federal Emergency Management Assistance Act, 42 U.S.C. 5121 et seq. (the Agency The following areas of the State of ‘‘Stafford Act’’). Therefore, I declare that such Tennessee have been designated as a major disaster exists in the Commonwealth [Internal Agency Docket No. FEMA–4005– adversely affected by this major disaster: of Puerto Rico. DR; Docket ID FEMA–2011–0001] In order to provide Federal assistance, you Claiborne, Grainger, Henderson, Knox, are hereby authorized to allocate from funds Tennessee; Major Disaster and Related Loudon, and Marion Counties for Public available for these purposes such amounts as Determinations Assistance. you find necessary for Federal disaster All counties within the State of Tennessee assistance and administrative expenses. AGENCY: Federal Emergency are eligible to apply for assistance under the You are authorized to provide Public Management Agency, DHS. Hazard Mitigation Grant Program. Assistance in the designated areas and ACTION: Notice. The following Catalog of Federal Domestic Hazard Mitigation throughout the Assistance Numbers (CFDA) are to be used Commonwealth. Consistent with the SUMMARY: This is a notice of the for reporting and drawing funds: 97.030, requirement that Federal assistance is Presidential declaration of a major Community Disaster Loans; 97.031, Cora supplemental, any Federal funds provided disaster for the State of Tennessee Brown Fund; 97.032, Crisis Counseling; under the Stafford Act for Public Assistance (FEMA–4005–DR), dated July 20, 2011, 97.033, Disaster Legal Services; 97.034, and Hazard Mitigation will be limited to 75 and related determinations. Disaster Unemployment Assistance (DUA); percent of the total eligible costs. Further, you are authorized to make DATES: Effective Date: July 20, 2011. 97.046, Fire Management Assistance Grant; changes to this declaration for the approved FOR FURTHER INFORMATION CONTACT: 97.048, Disaster Housing Assistance to assistance to the extent allowable under the Peggy Miller, Office of Response and Individuals and Households in Presidentially Declared Disaster Areas; 97.049, Stafford Act. Recovery, Federal Emergency Presidentially Declared Disaster Assistance— The Federal Emergency Management Management Agency, 500 C Street, SW., Disaster Housing Operations for Individuals Agency (FEMA) hereby gives notice that Washington, DC 20472, (202) 646–3886. and Households; 97.050, Presidentially pursuant to the authority vested in the SUPPLEMENTARY INFORMATION: Notice is Declared Disaster Assistance to Individuals Administrator, under Executive Order hereby given that, in a letter dated July and Households—Other Needs; 97.036, 12148, as amended, Justo Herna´ndez, of 20, 2011, the President issued a major Disaster Grants—Public Assistance

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47221

(Presidentially Declared Disasters); 97.039, The Federal Emergency Management Management Agency, 500 C Street, SW., Hazard Mitigation Grant. Agency (FEMA) hereby gives notice that Washington, DC 20472, (202) 646–3886. W. Craig Fugate, pursuant to the authority vested in the SUPPLEMENTARY INFORMATION: The notice Administrator, Federal Emergency Administrator, under Executive Order of a major disaster declaration for the Management Agency. 12148, as amended, Michael J. Lapinski, State of Montana is hereby amended to [FR Doc. 2011–19772 Filed 8–3–11; 8:45 am] of FEMA is appointed to act as the include the Individual Assistance Federal Coordinating Officer for this BILLING CODE 9111–23–P program for the following areas among major disaster. those areas determined to have been The following areas of the State of adversely affected by the event declared DEPARTMENT OF HOMELAND Ohio have been designated as adversely a major disaster by the President in his SECURITY affected by this major disaster: declaration of June 17, 2011. Adams, Athens, Belmont, Brown, Big Horn, Carbon, Cascade, Custer, Fergus, Federal Emergency Management Clermont, Gallia, Guernsey, Hamilton, Garfield, Hill, Jefferson, Judith Basin, Lewis Agency Hocking, Jackson, Jefferson, Lawrence, Meigs, and Clark, Musselshell, Petroleum, Sweet Monroe, Morgan, Noble, Pike, Ross, Scioto, Grass, Valley, and Yellowstone Counties and [Internal Agency Docket No. FEMA–4002– Vinton, and Washington Counties for Public DR; Docket ID FEMA–2011–0001] the Blackfeet Indian Reservation, Crow Assistance. Indian Reservation, and the Fort Belknap All counties within the State of Ohio are Ohio; Major Disaster and Related Reservation for Individual Assistance eligible to apply for assistance under the (already designated for Public Assistance). Determinations Hazard Mitigation Grant Program. Missoula County for Individual Assistance. AGENCY: Federal Emergency (The following Catalog of Federal Domestic The following Catalog of Federal Domestic Management Agency, DHS. Assistance Numbers (CFDA) are to be used Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, for reporting and drawing funds: 97.030, ACTION: Notice. Community Disaster Loans; 97.031, Cora Community Disaster Loans; 97.031, Cora SUMMARY: This is a notice of the Brown Fund; 97.032, Crisis Counseling; Brown Fund; 97.032, Crisis Counseling; Presidential declaration of a major 97.033, Disaster Legal Services; 97.034, 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); disaster for the State of Ohio (FEMA– Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.046, Fire Management Assistance Grant; 4002–DR), dated July 13, 2011, and 97.048, Disaster Housing Assistance to 97.048, Disaster Housing Assistance to related determinations. Individuals and Households in Presidentially Individuals and Households In Presidentially DATES: Effective Date: July 13, 2011. Declared Disaster Areas; 97.049, Declared Disaster Areas; 97.049, FOR FURTHER INFORMATION CONTACT: Presidentially Declared Disaster Assistance— Presidentially Declared Disaster Assistance— Peggy Miller, Office of Response and Disaster Housing Operations for Individuals Disaster Housing Operations for Individuals Recovery, Federal Emergency and Households; 97.050, Presidentially and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals Declared Disaster Assistance to Individuals Management Agency, 500 C Street, SW., and Households—Other Needs; 97.036, and Households—Other Needs; 97.036, Washington, DC 20472, (202) 646–3886. Disaster Grants—Public Assistance Disaster Grants—Public Assistance SUPPLEMENTARY INFORMATION: Notice is (Presidentially Declared Disasters); 97.039, (Presidentially Declared Disasters); 97.039, hereby given that, in a letter dated July Hazard Mitigation Grant.) Hazard Mitigation Grant. 13, 2011, the President issued a major W. Craig Fugate, W. Craig Fugate, disaster declaration under the authority of the Robert T. Stafford Disaster Relief Administrator, Federal Emergency Administrator, Federal Emergency Management Agency. Management Agency. and Emergency Assistance Act, 42 U.S.C. 5121 et seq. (the ‘‘Stafford Act’’), [FR Doc. 2011–19769 Filed 8–3–11; 8:45 am] [FR Doc. 2011–19760 Filed 8–3–11; 8:45 am] as follows: BILLING CODE 9111–23–P BILLING CODE 9111–23–P I have determined that the damage in certain areas of the State of Ohio resulting DEPARTMENT OF HOMELAND DEPARTMENT OF HOMELAND from severe storms and flooding during the SECURITY SECURITY period of April 4 to May 15, 2011, is of sufficient severity and magnitude to warrant Federal Emergency Management Federal Emergency Management a major disaster declaration under the Robert T. Stafford Disaster Relief and Emergency Agency Agency Assistance Act, 42 U.S.C. 5121 et seq. (the [Internal Agency Docket No. FEMA–1996– [Internal Agency Docket No. FEMA–1984– ‘‘Stafford Act’’). Therefore, I declare that such DR; Docket ID FEMA–2011–0001] DR; Docket ID FEMA–2011–0001] a major disaster exists in the State of Ohio. In order to provide Federal assistance, you Montana; Amendment No. 3 to Notice South Dakota; Amendment No. 5 to are hereby authorized to allocate from funds of a Major Disaster Declaration Notice of a Major Disaster Declaration available for these purposes such amounts as you find necessary for Federal disaster AGENCY: Federal Emergency AGENCY: Federal Emergency assistance and administrative expenses. Management Agency, DHS. Management Agency, DHS. You are authorized to provide Public ACTION: ACTION: Notice. Assistance in the designated areas and Notice. Hazard Mitigation throughout the State. SUMMARY: This notice amends the notice SUMMARY: This notice amends the notice Consistent with the requirement that Federal of a major disaster declaration for the assistance is supplemental, any Federal of a major disaster declaration for the funds provided under the Stafford Act for State of Montana (FEMA–1996–DR), State of South Dakota (FEMA–1984– Public Assistance and Hazard Mitigation will dated June 17, 2011, and related DR), dated May 13, 2011, and related be limited to 75 percent of the total eligible determinations. determinations. costs. DATES: Effective Date: July 26, 2011. DATES: Effective Date: July 22, 2011. Further, you are authorized to make changes to this declaration for the approved FOR FURTHER INFORMATION CONTACT: FOR FURTHER INFORMATION CONTACT: assistance to the extent allowable under the Peggy Miller, Office of Response and Peggy Miller, Office of Response and Stafford Act. Recovery, Federal Emergency Recovery, Federal Emergency

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47222 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Management Agency, 500 C Street, SW., The following Catalog of Federal Domestic Disaster Unemployment Assistance (DUA); Washington, DC 20472, (202) 646–3886. Assistance Numbers (CFDA) are to be used 97.046, Fire Management Assistance Grant; for reporting and drawing funds: 97.030, 97.048, Disaster Housing Assistance to SUPPLEMENTARY INFORMATION: Notice is Community Disaster Loans; 97.031, Cora Individuals and Households In Presidentially hereby given that the incident period for Brown Fund; 97.032, Crisis Counseling; Declared Disaster Areas; 97.049, this disaster is closed effective July 22, 97.033, Disaster Legal Services; 97.034, Presidentially Declared Disaster Assistance— 2011. Disaster Unemployment Assistance (DUA); Disaster Housing Operations for Individuals The following Catalog of Federal Domestic 97.046, Fire Management Assistance Grant; and Households; 97.050, Presidentially Assistance Numbers (CFDA) are to be used 97.048, Disaster Housing Assistance to Declared Disaster Assistance to Individuals for reporting and drawing funds: 97.030, Individuals and Households In Presidentially and Households—Other Needs; 97.036, Community Disaster Loans; 97.031, Cora Declared Disaster Areas; 97.049, Disaster Grants—Public Assistance Brown Fund; 97.032, Crisis Counseling; Presidentially Declared Disaster Assistance— (Presidentially Declared Disasters); 97.039, 97.033, Disaster Legal Services; 97.034, Disaster Housing Operations for Individuals Hazard Mitigation Grant. Disaster Unemployment Assistance (DUA); and Households; 97.050, Presidentially 97.046, Fire Management Assistance Grant; Declared Disaster Assistance to Individuals W. Craig Fugate, 97.048, Disaster Housing Assistance to and Households—Other Needs; 97.036, Administrator, Federal Emergency Individuals and Households In Presidentially Disaster Grants—Public Assistance Management Agency. Declared Disaster Areas; 97.049, (Presidentially Declared Disasters); 97.039, [FR Doc. 2011–19763 Filed 8–3–11; 8:45 am] Presidentially Declared Disaster Assistance— Hazard Mitigation Grant. BILLING CODE 9111–23–P Disaster Housing Operations for Individuals and Households; 97.050, Presidentially W. Craig Fugate, Declared Disaster Assistance to Individuals Administrator, Federal Emergency and Households—Other Needs; 97.036, Management Agency. DEPARTMENT OF HOMELAND SECURITY Disaster Grants—Public Assistance [FR Doc. 2011–19762 Filed 8–3–11; 8:45 am] (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant. BILLING CODE 9110–23–P Federal Emergency Management Agency W. Craig Fugate, Administrator, Federal Emergency DEPARTMENT OF HOMELAND [Internal Agency Docket No. FEMA–4004– Management Agency. SECURITY DR; Docket ID FEMA–2011–0001] [FR Doc. 2011–19761 Filed 8–3–11; 8:45 am] Federal Emergency Management Puerto Rico; Amendment No. 1 to BILLING CODE 9111–23–P Agency Notice of a Major Disaster Declaration [Internal Agency Docket No. FEMA–4007– AGENCY: Federal Emergency DEPARTMENT OF HOMELAND DR; Docket ID FEMA–2011–0001] Management Agency, DHS. SECURITY ACTION: Notice. Wyoming; Amendment No. 1 to Notice Federal Emergency Management of a Major Disaster Declaration SUMMARY: This notice amends the notice Agency of a major disaster declaration for the AGENCY: Federal Emergency Commonwealth of Puerto Rico (FEMA– [Internal Agency Docket No. FEMA–4001– Management Agency, DHS. DR; Docket ID FEMA–2011–0001] 4004–DR), dated July 14, 2011, and ACTION: Notice. related determinations. Vermont; Amendment No. 1 to Notice SUMMARY: This notice amends the notice DATES: Effective Date: July 28, 2011. of a Major Disaster Declaration of a major disaster declaration for State FOR FURTHER INFORMATION CONTACT: AGENCY: Federal Emergency of Wyoming (FEMA–4007–DR), dated Peggy Miller, Office of Response and Management Agency, DHS. July 22, 2011, and related Recovery, Federal Emergency ACTION: Notice. determinations. Management Agency, 500 C Street, SW., DATES: Effective Date: July 25, 2011. Washington, DC 20472, (202) 646–3886. SUMMARY: This notice amends the notice FOR FURTHER INFORMATION CONTACT: SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration for the of a major disaster declaration for the State of Vermont (FEMA–4001–DR), Peggy Miller, Office of Response and Recovery, Federal Emergency Commonwealth of Puerto Rico is hereby dated July 8, 2011, and related amended to include the following area determinations. Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646–3886. among those areas determined to have DATES: Effective Date: July 25, 2011. SUPPLEMENTARY INFORMATION: The been adversely affected by the event FOR FURTHER INFORMATION CONTACT: Federal Emergency Management Agency declared a major disaster by the Peggy Miller, Office of Response and (FEMA) hereby gives notice that President in his declaration of July 14, Recovery, Federal Emergency pursuant to the authority vested in the 2011. Management Agency, 500 C Street, SW., Administrator, under Executive Order The Municipality of Yabucoa for Public Washington, DC 20472, (202) 646–3886. 12148, as amended, Mark H. Landry, of Assistance. SUPPLEMENTARY INFORMATION: The notice FEMA is appointed to act as the Federal The following Catalog of Federal Domestic of a major disaster declaration for the Coordinating Officer for this disaster. Assistance Numbers (CFDA) are to be used State of Vermont is hereby amended to This action terminates the for reporting and drawing funds: 97.030, include the following areas among those appointment of Mark H. Armstrong as Community Disaster Loans; 97.031, Cora areas determined to have been adversely Federal Coordinating Officer for this Brown Fund; 97.032, Crisis Counseling; affected by the event declared a major 97.033, Disaster Legal Services; 97.034, disaster. Disaster Unemployment Assistance (DUA); disaster by the President in his The following Catalog of Federal Domestic 97.046, Fire Management Assistance Grant; declaration of July 8, 2011. Assistance Numbers (CFDA) are to be used 97.048, Disaster Housing Assistance to Essex and Orange Counties for Public for reporting and drawing funds: 97.030, Individuals and Households In Presidentially Assistance. Washington County for Public Community Disaster Loans; 97.031, Cora Declared Disaster Areas; 97.049, Assistance (already designated for Individual Brown Fund; 97.032, Crisis Counseling; Presidentially Declared Disaster Assistance— Assistance). 97.033, Disaster Legal Services; 97.034, Disaster Housing Operations for Individuals

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00083 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47223

and Households; 97.050, Presidentially Disaster Grants—Public Assistance and Urban Development, 451 Seventh Declared Disaster Assistance to Individuals (Presidentially Declared Disasters); 97.039, Street, SW., Washington, DC 20410; e- and Households—Other Needs; 97.036, Hazard Mitigation Grant. mail Colette Pollard at Colette. Disaster Grants—Public Assistance [email protected]. or telephone (202) (Presidentially Declared Disasters); 97.039, W. Craig Fugate, Hazard Mitigation Grant. Administrator, Federal Emergency 402–3400. This is not a toll-free number. Management Agency. Copies of available documents W. Craig Fugate, [FR Doc. 2011–19764 Filed 8–3–11; 8:45 am] submitted to OMB may be obtained Administrator, Federal Emergency BILLING CODE 9111–23–P from Ms. Pollard. Management Agency. SUPPLEMENTARY INFORMATION: This [FR Doc. 2011–19767 Filed 8–3–11; 8:45 am] notice informs the public that the BILLING CODE 9111–23–P DEPARTMENT OF HOUSING AND Department of Housing and Urban URBAN DEVELOPMENT Development has submitted to OMB a request for approval of the Information DEPARTMENT OF HOMELAND [Docket No. FR–5480–N–79] SECURITY collection described below. This notice Notice of Submission of Proposed is soliciting comments from members of Federal Emergency Management Information Collection to OMB the public and affecting agencies Agency Relocation and Real Property concerning the proposed collection of Acquisition, Recordkeeping information to: (1) Evaluate whether the [Internal Agency Docket No. FEMA–1997– proposed collection of information is DR; Docket ID FEMA–2011–0001] Requirements Under the Uniform Relocation Assistance and Real necessary for the proper performance of Indiana; Amendment No. 2 to Notice of Property Acquisition Policies Act of the functions of the agency, including a Major Disaster Declaration 1970, as Amended (URA) whether the information will have practical utility; (2) Evaluate the AGENCY: Federal Emergency AGENCY: Office of the Chief Information accuracy of the agency’s estimate of the Management Agency, DHS. Officer, HUD. burden of the proposed collection of ACTION: Notice. ACTION: Notice. information; (3) Enhance the quality, utility, and clarity of the information to SUMMARY: This notice amends the notice SUMMARY: The proposed information be collected; and (4) Minimize the of a major disaster declaration for the collection requirement described below burden of the collection of information State of Indiana (FEMA–1997–DR), has been submitted to the Office of on those who are to respond; including dated June 23, 2011, and related Management and Budget (OMB) for through the use of appropriate determinations. review, as required by the Paperwork automated collection techniques or DATES: Effective Date: July 28, 2011. Reduction Act. The Department is other forms of information technology, soliciting public comments on the FOR FURTHER INFORMATION CONTACT: e.g., permitting electronic submission of subject proposal. Peggy Miller, Office of Response and responses. Agencies which receive HUD funding Recovery, Federal Emergency for projects that will involve relocation This Notice Also Lists the Following Management Agency, 500 C Street, SW., of owners or tenants displaced due to a Information Washington, DC 20472, (202) 646–3886. project which involves rehabilitation, Title of Proposal: Relocation and Real SUPPLEMENTARY INFORMATION: The notice demolition, or acquisition of property Property Acquisition, Recordkeeping of a major disaster declaration for the are subject to the Uniform Relocation Requirements under the Uniform State of Indiana is hereby amended to Assistance and Real Property Relocation Assistance and Real Property include the following areas among those Acquisition Policies Act of 1970, as Acquisition Policies Act of 1970, as areas determined to have been adversely amended (URA). Agencies are required amended (URA) affected by the event declared a major to document their compliance with the disaster by the President in his requirements of the URA and applicable OMB Approval Number: 2506–0121. declaration of June 23, 2011. implementing program regulations. Form Numbers: None. Vermillion and Wayne Counties for Public DATES: Comments Due Date: September Description of the Need for the Assistance. 6, 2011. Information and its Proposed Use: The following Catalog of Federal Domestic ADDRESSES: Interested persons are Agencies which receive HUD funding Assistance Numbers (CFDA) are to be used invited to submit comments regarding for projects that will involve relocation for reporting and drawing funds: 97.030, of owners or tenants displaced due to a Community Disaster Loans; 97.031, Cora this proposal. Comments should refer to Brown Fund; 97.032, Crisis Counseling; the proposal by name and/or OMB project which involves rehabilitation, 97.033, Disaster Legal Services; 97.034, approval Number (2506–0121) and demolition, or acquisition of property Disaster Unemployment Assistance (DUA); should be sent to: HUD Desk Officer, are subject to the Uniform Relocation 97.046, Fire Management Assistance Grant; Office of Management and Budget, New Assistance and Real Property 97.048, Disaster Housing Assistance to Executive Office Building, Washington, Acquisition Policies Act of 1970, as Individuals and Households In Presidentially DC 20503; fax: 202–395–5806. E-mail: amended (URA). Agencies are required Declared Disaster Areas; 97.049, [email protected], fax: to document their compliance with the Presidentially Declared Disaster Assistance— 202–395–5806. requirements of the URA and applicable Disaster Housing Operations for Individuals implementing program regulations. and Households; 97.050, Presidentially FOR FURTHER INFORMATION CONTACT: Declared Disaster Assistance to Individuals Colette Pollard., Reports Management Frequency of Submission: On and Households—Other Needs; 97.036, Officer, QDAM, Department of Housing occasion.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00084 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47224 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Number of Annual × Hours per respondents responses response Burden hours

Reporting Burden ...... 2,000 40 3.5 280,000

Total Estimated Burden Hours: Secretary of HUD to the Assistant Community Development Act of 1992 280,000. Secretary and General Deputy Assistant (12 U.S.C. 1715z–13b); and Rural Status: Revision of a currently Secretary for PIH, including the Innovation Fund grants and Rural approved collection. delegation published on August 4, 2004 Housing and Economic Development Authority: Section 3507 of the Paperwork (69 FR 47171), are hereby revoked and grants awarded to Indian Tribes and Reduction Act of 1995, 44 U.S.C. 35, as superseded by this delegation of tribal entities by the Assistant Secretary amended. authority. for Community Planning and Dated: July 29, 2011. Section A. Authority Delegated Development, as may be authorized by HUD appropriations acts. Colette Pollard, The Secretary hereby delegates to the Departmental Reports Management Officer, Assistant Secretary and General Deputy Section B. Authority Excepted Office of the Chief Information Officer. Assistant Secretary for PIH the authority Authority delegated under section A [FR Doc. 2011–19731 Filed 8–3–11; 8:45 am] and responsibility to administer the does not include the power to sue or be BILLING CODE 4210–67–P following programs: 1. Programs under the jurisdiction of sued. the Secretary pursuant to the authority Section C. Authority To Redelegate DEPARTMENT OF HOUSING AND transferred from the Public Housing URBAN DEVELOPMENT Administration under section 5(a) of the In accordance with a written [Docket No. FR–5545–D–01] Department of Housing and Urban redelegation of authority, the Assistant Development Act (42 U.S.C. 3534) as Secretary and the General Deputy Delegation of Authority for the Office amended; Assistant Secretary for PIH may further of Public and Indian Housing 2. Each program of the Department redelegate specific authority. authorized by the United States Housing Redelegated authority to PIH Deputy AGENCY: Office of the Secretary, HUD. Act of 1937 (1937 Act) (42 U.S.C. 1437 Assistant Secretaries or other ranking ACTION: Notice of delegation of et seq.) as amended, including, but not PIH program officials does not authority. limited to, the Public Housing Program, supersede the authority of the Assistant Secretary as designee of the Secretary. SUMMARY: Section 7(d) of the Section 8 Programs (except the Department of Housing and Urban following Section 8 project-based Section D. Exceptions to Authority To Development (HUD) Act, as amended, programs: New Construction, Redelegate authorizes the Secretary to delegate Substantial Rehabilitation, Loan functions, powers, and duties as the Management Set-Aside, and Property The authority to redelegate does not Secretary deems necessary. In this Disposition) and predecessor programs include any power or authority under that are no longer funded but have delegation of authority, the Secretary law that specifically requires the action ongoing commitments; delegates authority to the Assistant of the Secretary of HUD, the Assistant 3. PIH programs for which assistance Secretary of PIH, or the General Deputy Secretary and the General Deputy is provided for or on behalf of public Assistant Secretary for the Office of Assistant Secretary of PIH. Authority housing agencies (PHAs), public excepted includes authority to: Public and Indian Housing (PIH) and housing residents, or other low-income authorizes the Assistant Secretary and households; and 1. Issue or waive regulations, the General Deputy Assistant Secretary 4. PIH programs for which assistance including waivers pursuant to 24 CFR to redelegate authority for the is provided for or on behalf of Native 982.161(c) that permit HUD field offices administration of certain PIH programs. Americans, Indian Tribes, Alaska Native to act on waivers of conflict of interests. This delegation revokes and supersedes Villages, Native Hawaiians, tribal Public Housing Field Office Directors all prior delegations of authority, entities, tribally designated housing are not to exercise this authority. including the delegation published on entities, or tribal housing resident 2. Issue notices to clarify regulations; August 4, 2004 (69 FR 47171). organizations. This includes, but is not 3. Issue notices of funding availability DATES: Effective Date: July 15, 2011. limited to, programs authorized (NOFAs), handbooks, notices, and other FOR FURTHER INFORMATION CONTACT: pursuant to the Native American HUD policy directives; Linda Bronsdon, AICP, Program Housing Assistance and Self- 4. Waive any provision of an annual Analyst, Office of Policy, Program and Determination Act of 1966 (NAHASDA) contributions contract (ACC), including Legislative Initiatives, Office of Public (25 U.S.C. 4101 et seq.), as amended; the a determination of substantial breach or and Indian Housing, Department of Community Development Block Grant default in response to any violation of Housing and Urban Development, 490 Program for Indian Tribes and Alaska statute or regulations; L’Enfant Plaza, Suite 2206, Washington, Native Villages authorized by section DC 20024; e-mail address 106 of the Housing and Community 5. Impose remedies for substantial [email protected], telephone Development Act of 1974 (42 U.S.C. noncompliance with the requirements number 202–402–3494. (This is not a 5306); the Indian Home Loan Guarantee of NAHASDA (25 U.S.C. 4101 et seq.) toll-free number.) This number may be Program authorized by section 184 of and/or its implementing regulations; accessed through TTY by calling the the Housing and Community and toll-free Federal Relay Service at Development Act of 1992 (12 U.S.C. 6. Declare a failure to comply with the telephone number 1–800–877–8339. 1715z–13a); the Native Hawaiian Loan regulations governing Community SUPPLEMENTARY INFORMATION: Previous Guarantee Program authorized by Development Block Grants for Indian delegations of authority from the section 184A of the Housing and Tribes and Alaska Native Villages.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00085 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47225

Section E. Authority Superseded provisions of the National Housing Act determined by the Secretary of the The previous delegations of authority (the Act). The interest rate for Treasury pursuant to a statutory formula from the Secretary of HUD to the debentures issued under section based on the average yield of all Assistant Secretary for PIH are hereby 221(g)(4) of the Act during the 6-month outstanding marketable Treasury revoked and superseded by this period beginning July 1, 2011, is 3 obligations of maturities of 15 or more delegation of authority, including the percent. The interest rate for debentures years. previous delegation of authority for PIH issued under any other provision of the The Secretary of the Treasury (1) has published on August 4, 2004 (69 FR Act is the rate in effect on the date that determined, in accordance with the 47171). the commitment to insure the loan or provisions of section 224, that the mortgage was issued, or the date that the statutory maximum interest rate for the Section F. Authority To Represent HUD loan or mortgage was endorsed (or period beginning July 1, 2011, is 41⁄8 This consolidated delegation of initially endorsed if there are two or percent; and (2) has approved the authority is conclusive evidence of the more endorsements) for insurance, establishment of the debenture interest authority of the Assistant Secretary for whichever rate is higher. The interest rate by the Secretary of HUD at 41⁄8 PIH, the General Deputy Assistant rate for debentures issued under these percent for the 6-month period Secretary, or those with redelegated other provisions with respect to a loan beginning July 1, 2011. This interest rate authority, to represent the Secretary and or mortgage committed or endorsed will be the rate borne by debentures to execute, in the name of the Secretary, during the 6-month period beginning issued with respect to any insured loan any instrument or document July 1, 2011, is 41⁄8 percent. However, as or mortgage (except for debentures relinquishing or transferring any right, a result of an amendment to section 224 issued pursuant to section 221(g)(4)) title, or interest of the Department in of the Act, if an insurance claim relating with insurance commitment or real or personal property. The Secretary to a mortgage insured under sections endorsement date (as applicable) within may revoke the authority authorized 203 or 234 of the Act and endorsed for the latter 6 months of 2011. herein, in whole or in part, at any time. insurance after January 23, 2004, is paid For convenience of reference, HUD is in cash, the debenture interest rate for publishing the following chart of Section G. Consultation and purposes of calculating a claim shall be debenture interest rates applicable to Coordination With the General Counsel the monthly average yield, for the mortgages committed or endorsed since The General Counsel shall consult month in which the default on the January 1, 1980: and advise the Assistant Secretary for mortgage occurred, on United States PIH and the General Deputy Assistant Treasury Securities adjusted to a Effective in- terest rate on or after prior to Secretary, as required and when constant maturity of 10 years.

requested, and shall enter into such FOR FURTHER INFORMATION CONTACT: 91⁄2 ...... Jan. 1, 1980 July 1, 1980 protocols as administratively agreed to Yong Sun, Department of Housing and 97⁄8 ...... July 1, 1980 Jan. 1, 1981 by the General Counsel and the Urban Development, 451 Seventh Street, 113⁄4 ...... Jan. 1, 1981 July 1, 1981 Assistant Secretary for PIH or the SW., Room 5148, Washington, DC 127⁄8 ...... July 1, 1981 Jan. 1, 1982 3 General Deputy Assistant Secretary for 20410–8000; telephone (202) 402–4778 12 ⁄4 ...... Jan. 1, 1982 Jan. 1, 1983 101⁄4 ...... Jan. 1, 1983 July 1, 1983 PIH. This consolidated delegation of (this is not a toll-free number). 103⁄8 ...... July 1, 1983 Jan. 1, 1984 authority is to be exercised consistently Individuals with speech or hearing 1 11 ⁄2 ...... Jan. 1, 1984 July 1, 1984 with the delegation from the Secretary impairments may access this number 133⁄8 ...... July 1, 1984 Jan. 1, 1985 to the General Counsel. through TTY by calling the toll-free 115⁄8 ...... Jan. 1, 1985 July 1, 1985 Authority: Section 7 (d) of the Department Federal Information Relay Service at 111⁄8 ...... July 1, 1985 Jan. 1, 1986 of Housing and Urban Development Act, as (800) 877–8339. 101⁄4 ...... Jan. 1, 1986 July 1, 1986 1 amended, (42 U.S.C. 3535(d). SUPPLEMENTARY INFORMATION: Section 8 ⁄4 ...... July 1, 1986 Jan. 1. 1987 224 of the National Housing Act (12 8 ...... Jan. 1, 1987 July 1, 1987 Dated: July 15, 2011. 9 ...... July 1, 1987 Jan. 1, 1988 U.S.C. 1715o) provides that debentures Shaun Donovan, 91⁄8 ...... Jan. 1, 1988 July 1, 1988 Secretary. issued under the Act with respect to an 93⁄8 ...... July 1, 1988 Jan. 1, 1989 insured loan or mortgage (except for 1 [FR Doc. 2011–19723 Filed 8–3–11; 8:45 am] 9 ⁄4 ...... Jan. 1, 1989 July 1, 1989 debentures issued pursuant to section 9 ...... July 1, 1989 Jan. 1, 1990 BILLING CODE 4210–67–P 221(g)(4) of the Act) will bear interest at 81⁄8 ...... Jan. 1, 1990 July 1, 1990 the rate in effect on the date the 9 ...... July 1, 1990 Jan. 1, 1991 83⁄4 ...... Jan. 1, 1991 July 1, 1991 DEPARTMENT OF HOUSING AND commitment to insure the loan or 81⁄2 ...... July 1, 1991 Jan. 1, 1992 URBAN DEVELOPMENT mortgage was issued, or the date the loan or mortgage was endorsed (or 8 ...... Jan. 1, 1992 July 1, 1992 8 ...... July 1, 1992 Jan. 1, 1993 [Docket No. FR–5493–N–02] initially endorsed if there are two or 73⁄4 ...... Jan. 1, 1993 July 1, 1993 more endorsements) for insurance, Mortgage and Loan Insurance 7 ...... July 1, 1993 Jan. 1, 1994 whichever rate is higher. This provision 5 Programs Under the National Housing 6 ⁄8 ...... Jan. 1, 1994 July 1, 1994 is implemented in HUD’s regulations at 73⁄4 ...... July 1, 1994 Jan. 1, 1995 Act—Debenture Interest Rates 24 CFR 203.405, 203.479, 207.259(e)(6), 83⁄8 ...... Jan. 1, 1995 July 1, 1995 1 AGENCY: Office of the Assistant and 220.830. These regulatory 7 ⁄4 ...... July 1, 1995 Jan. 1, 1996 provisions state that the applicable rates 61⁄2 ...... Jan. 1, 1996 July 1, 1996 Secretary for Housing—Federal Housing 1 Commissioner, HUD. of interest will be published twice each 7 ⁄4 ...... July 1, 1996 Jan. 1, 1997 63⁄4 ...... Jan. 1, 1997 July 1, 1997 ACTION: Notice. year as a notice in the Federal Register. 1 Section 224 further provides that the 7 ⁄8 ...... July 1, 1997 Jan. 1, 1998 63⁄8 ...... Jan. 1, 1998 July 1, 1998 SUMMARY: This notice announces interest rate on these debentures will be 61⁄8 ...... July 1, 1998 Jan. 1, 1999 changes in the interest rates to be paid set from time to time by the Secretary 51⁄2 ...... Jan. 1, 1999 July 1, 1999 on debentures issued with respect to a of HUD, with the approval of the 61⁄8 ...... July 1, 1999 Jan. 1, 2000 loan or mortgage insured by the Federal Secretary of the Treasury, in an amount 61⁄2 ...... Jan. 1, 2000 July 1, 2000 Housing Administration under the not in excess of the annual interest rate 61⁄2 ...... July 1, 2000 Jan. 1, 2001

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00086 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47226 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Effective in- period beginning July 1, 2011, is 3 listing of the Mortgage Loans was terest rate on or after prior to percent. included in the BIP. The Mortgage The subject matter of this notice falls Loans were sold without FHA insurance 6 ...... Jan. 1, 2001 July 1, 2001 within the categorical exemption from and with servicing released. HUD 7 5 ⁄8 ...... July 1, 2001 Jan. 1, 2002 HUD’s environmental clearance offered qualified bidders the 51⁄4 ...... Jan. 1, 2002 July 1, 2002 procedures set forth in 24 CFR opportunity to bid competitively on the 53⁄4 ...... July 1, 2002 Jan. 1, 2003 5 ...... Jan. 1, 2003 July 1, 2003 50.19(c)(6). For that reason, no Mortgage Loans. 41⁄2 ...... July 1, 2003 Jan. 1, 2004 environmental finding has been The Mortgage Loans may be stratified 51⁄8 ...... Jan. 1, 2004 July 1, 2004 prepared for this notice. for bidding purposes into several 51⁄2 ...... July 1, 2004 Jan. 1, 2005 Authority: Sections 211, 221, 224, National mortgage loan pools. Each pool may 47⁄8 ...... Jan. 1, 2005 July 1, 2005 Housing Act, 12 U.S.C. 1715b, 1715l, 1715o; contain Mortgage Loans that generally 41⁄2 ...... July 1, 2005 Jan. 1, 2006 Section 7(d), Department of HUD Act, 42 have similar performance, property 47⁄8 ...... Jan. 1, 2006 July 1, 2006 U.S.C. 3535(d). type, geographic location, lien position 53⁄8 ...... July 1, 2006 Jan. 1, 2007 and other characteristics. Qualified 3 Dated: July 28, 2011. 4 ⁄4 ...... Jan. 1, 2007 July 1, 2007 bidders were permited to submit bids on 5 ...... July 1, 2007 Jan. 1, 2008 Carol J. Galante, one or more pools of Mortgage Loans or 41⁄2 ...... Jan. 1, 2008 July 1, 2008 Acting Assistant Secretary for Housing– 45⁄8 ...... July 1, 2008 Jan. 1, 2009 Federal Housing Commissioner. on individual loans. A mortgagor who 1 was a qualified bidder was permitted to 4 ⁄8 ...... Jan. 1, 2009 July 1, 2009 [FR Doc. 2011–19735 Filed 8–3–11; 8:45 am] 41⁄8 ...... July 1, 2009 Jan. 1, 2010 submit an individual bid on its own BILLING CODE 4210–67–P 41⁄4 ...... Jan. 1, 2010 July 1, 2010 Mortgage Loan. Interested Mortgagors 41⁄8 ...... July 1, 2010 Jan. 1, 2011 were advised to review the Qualification 37⁄8 ...... Jan. 1, 2011 July 1, 2011 DEPARTMENT OF HOUSING AND Statement to determine whether they 41⁄8 ...... July 1, 2011 Jan. 1, 2012 URBAN DEVELOPMENT were eligible to qualify to submit bids on one or more pools of Mortgage Loans Section 215 of Division G, Title II of [Docket No. FR–5527–N–02] or on individual loans in MLS 2011–2. Public Law 108–199, enacted January 23, 2004 (HUD’s 2004 Appropriations Notice of HUD-Held Multifamily Loan The Bidding Process Act) amended section 224 of the Act, to Sale (MLS 2011–2) The BIP described in detail the change the debenture interest rate for AGENCY: Office of the Assistant procedure for bidding in MLS 2011–2. purposes of calculating certain Secretary for Housing—Federal Housing The BIP also included a standardized insurance claim payments made in cash. Commissioner, HUD. non-negotiable loan sale agreement Therefore, for all claims paid in cash on ACTION: Notice of sale of mortgage loans. (Loan Sale Agreement). mortgages insured under section 203 or As part of its bid, each bidder was 234 of the National Housing Act and SUMMARY: This notice announces HUD’s required to submit a deposit equal to the endorsed for insurance after January 23, sale of certain unsubsidized multifamily greater of $100,000 or 10% of the bid 2004, the debenture interest rate will be mortgage loans, without Federal price. In the event the bidder’s aggregate the monthly average yield, for the Housing Administration (FHA) bid was less than $100,000.00, the month in which the default on the insurance, in a competitive, sealed bid minimum deposit was not less than fifty mortgage occurred, on United States sale (MLS 2011–2). This notice also percent (50%) of the bidder’s aggregate Treasury Securities adjusted to a describes generally the bidding process bid. HUD evaluated the bids submitted constant maturity of 10 years, as found used for the sale and certain persons and determined the successful bids in in Federal Reserve Statistical Release H– who were ineligible to bid. The Bidder’s its sole and absolute discretion. If a 15. The Federal Housing Administration Information Package (BIP) was made bidder was successful, the bidder’s has codified this provision in HUD available online to qualified bidders on deposit was non-refundable and will be regulations at 24 CFR 203.405(b) and 24 June 29, 2011. Submission of bids for applied toward the purchase price. CFR 203.479(b). the loans were required on the bid date, Deposits were returned to unsuccessful Section 221(g)(4) of the Act provides which was August 3, 2011. Awards bidders. Closings are scheduled to occur that debentures issued pursuant to that were made no later than August 4, 2011. by August 19, 2011. paragraph (with respect to the Closings are expected to take place by These were the essential terms of sale. assignment of an insured mortgage to August 19, 2011. The Loan Sale Agreement, included in the Secretary) will bear interest at the FOR FURTHER INFORMATION CONTACT: John the BIP, contained additional terms and ‘‘going Federal rate’’ in effect at the time Lucey, Deputy Director, Asset Sales details. To ensure a competitive bidding the debentures are issued. The term Office, Room 3136, Department of process, the terms of the bidding ‘‘going Federal rate’’ is defined to mean Housing and Urban Development, 451 process and the Loan Sale Agreement the interest rate that the Secretary of the 7th Street, SW., Washington, DC 20410– were not subject to negotiation. Treasury determines, pursuant to a 8000; telephone number 202–708–2625, Due Diligence Review extension 3927. Hearing- or speech- statutory formula based on the average The BIP described the due diligence impaired individuals may call 202–708– yield on all outstanding marketable process for reviewing loan files in MLS 4594 (TTY). These are not toll-free Treasury obligations of 8- to 12-year 2011–2. Qualified bidders were able to numbers. maturities, for the 6-month periods of access loan information remotely via a January through June and July through SUPPLEMENTARY INFORMATION: HUD high-speed Internet connection. Further December of each year. Section 221(g)(4) announces the sale in MLS 2011–2 of information on performing due is implemented in the HUD regulations certain unsubsidized mortgage loans diligence review of the Mortgage Loans at 24 CFR 221.255 and 24 CFR 221.790. (Mortgage Loans) secured by was provided in the BIP. The Secretary of the Treasury has multifamily properties located determined that the interest rate to be throughout the United States. The Mortgage Loan Sale Policy borne by debentures issued pursuant to Mortgage Loans were comprised of non- HUD reserved the right to add section 221(g)(4) during the 6-month performing mortgage loans. A final Mortgage Loans to or delete Mortgage

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00087 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47227

Loans from MLS 2011–2 at any time (6) Any individual or entity which pursuant to the Freedom of Information prior to the Award Date. HUD also employs or uses the services of an Act and all regulations promulgated reserved the right to reject any and all employee of HUD (other than in such thereunder. bids, in whole or in part, without employee’s official capacity) who is Scope of Notice prejudice to HUD’s right to include any involved in MLS 2011–2; Mortgage Loans in a later sale. Mortgage (7) Any affiliate, principal or This notice applied to MLS 2011–2 Loans will not be withdrawn after the employee of any person or entity that, and does not establish HUD’s policy for Award Date except as is specifically within the two-year period prior to the sale of other mortgage loans. provided in the Loan Sale Agreement. August 1, 2011, serviced any of the Dated: July 29, 2011. Mortgage Loans or performed other This sale of unsubsidized mortgage Carol J. Galante, loans was pursuant to Section 204(a) of services for or on behalf of HUD; (8) Any contractor or subcontractor to Acting Assistant Secretary for Housing, the Departments of Veterans Affairs and Federal Housing Commissioner. Housing and Urban Development, and HUD that otherwise had access to [FR Doc. 2011–19736 Filed 8–3–11; 8:45 am] Independent Agencies Appropriations information concerning the Mortgage Act of 1997, 12 U.S.C. 1715z-11a(a). Loans on behalf of HUD or provided BILLING CODE 4210–67–P services to any person or entity which, Mortgage Loan Sale Procedure within the two-year period prior to HUD selected a competitive sale as August 1, 2011, had access to DEPARTMENT OF HOUSING AND the method to sell the Mortgage Loans. information with respect to the URBAN DEVELOPMENT This method of sale optimizes HUD’s Mortgage Loans on behalf of HUD; [Docket No. FR–5545–D–02] return on the sale of these Mortgage (9) Any employee, officer, director or any other person that provides or will Loans, afforded the greatest opportunity Order of Succession for the Office of provide services to the potential bidder for all qualified bidders to bid on the Public and Indian Housing Mortgage Loans, and provided the with respect to such Mortgage Loans quickest and most efficient vehicle for during any warranty period established AGENCY: Office of the Assistant HUD to dispose of the Mortgage Loans. for the Loan Sale, that (x) serviced any Secretary for Public and Indian of the Mortgage Loans or performed Housing, HUD. Bidder Eligibility other services for or on behalf of HUD ACTION: Notice of order of succession. In order to bid in the sale, prospective or (y) within the two-year period prior bidders were required to complete, to August 1, 2011, provided services to SUMMARY: In this notice, the Assistant execute and submit both a any person or entity which serviced, Secretary for Public and Indian Housing Confidentiality Agreement and a performed services or otherwise had designates the order of succession for Qualification Statement acceptable to access to information with respect to the the Office of Public and Indian Housing HUD. The following individuals and Mortgage Loans for or on behalf of HUD; (PIH). This order of succession revokes entities were ineligible to bid on any of (10) Any mortgagor or operator that and supersedes all prior orders of the Mortgage Loans included in MLS failed to submit to HUD on or before succession for PIH, including that 2011–2: June 30, 2011, audited financial published on October 18, 2006 (71 FR (1) Any employee of HUD, a member statements for fiscal years 2007 through 61500). of such employee’s household, or an 2010 (for such time as the project has DATES: Effective Date: July 15, 2011. entity owned or controlled by any such been in operation or the prospective FOR FURTHER INFORMATION CONTACT: employee or member of such an bidder served as operator, if less than Linda Bronsdon, AICP, Office of Policy, employee’s household; three (3) years) for a project securing a Program and Legislative Initiatives, (2) Any individual or entity that is Mortgage Loan; debarred, suspended, or excluded from (11) Any individual or entity and any Office of Public and Indian Housing, doing business with HUD pursuant to Related Party (as such term is defined in Department of Housing and Urban Title 24 of the Code of Federal the Qualification Statement) of such Development, 490 L’Enfant Plaza, Regulations, part 24, and Title 2 of the individual or entity that is a mortgagor Washington, DC 20024, e-mail address Code of Federal Regulations, part 2424; in any of HUD’s multifamily and or [email protected], telephone (3) Any contractor, subcontractor and/ healthcare housing programs and that is number 202–402–3494. (This is not a or consultant or advisor (including any in default under such mortgage loan or toll-free number.) This number may be agent, employee, partner, director, is in violation of any regulatory or accessed through TTY by calling the principal or affiliate of any of the business agreements with HUD, unless toll-free Federal Relay Service at foregoing) who performed services for, such default or violation is cured on or telephone number 1–800–877–8339. or on behalf of, HUD in connection with before June 30, 2011; SUPPLEMENTARY INFORMATION: The MLS 2011–2; Assistant Secretary for PIH is issuing (4) Any individual who was a Freedom of Information Act Requests this order of succession of officials to principal, partner, director, agent or HUD reserves the right, in its sole and perform the duties and functions of PIH employee of any entity or individual absolute discretion, to disclose when, by reason of absence, disability, described in subparagraph 3 above, at information regarding MLS 2011–2, or vacancy in office, the Assistant any time during which the entity or including, but not limited to, the Secretary is not available to exercise the individual performed services for or on identity of any successful bidder and its powers or perform the duties of the behalf of HUD in connection with MLS bid price or bid percentage for any pool office. This order of succession is 2011–2; of loans or individual loan, upon the subject to the provisions of the Federal (5) Any individual or entity that uses closing of the sale of all the Mortgage Vacancy Reform Act of 1998 (5 U.S.C. the services, directly or indirectly, of Loans. Even if HUD elects not to 3345–3349d). This publication revokes any person or entity ineligible under publicly disclose any information and supersedes all prior orders of subparagraphs 1 through 4 above to relating to MLS 2011–2, HUD will have succession for PIH, including that assist in preparing any of its bids on the the right to disclose any information published on October 18, 2006 (71 FR Mortgage Loans; that HUD is obligated to disclose 61500).

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00088 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47228 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Accordingly, the Assistant Secretary DEPARTMENT OF HOUSING AND on September 9, 2003 (68 FR 53195 for PIH designates the following Order URBAN DEVELOPMENT through 53198), are hereby revoked and superseded by this redelegation of of Succession: [Docket No. FR–5545–D–05] authority. Section A. Order of Succession Redelegation of Authority to Office of Section A. Authority Redelegated to Subject to the provisions of the Native American Program (ONAP) Area Area Office Administrators and Office Federal Vacancies Reform Act of 1998, Office Administrators and Office Directors Directors during any period when, by reason of Authority is hereby redelegated from absence, disability, or vacancy in office, AGENCY: Office of the Assistant the Deputy Assistant Secretary for the Assistant Secretary is not available Secretary for Public and Indian ONAP to ONAP Area Office to exercise the powers or perform the Housing, HUD. Administrators, the Director of the duties of the Assistant Secretary of PIH, ACTION: Notice of redelegation of Office of Grants Management, and the the following officials within PIH are authority. Director of the Office of Grants hereby designated to exercise the Evaluation for administration, oversight powers and perform the duties of the SUMMARY: Section 7(d) of the and enforcement of the following: Assistant Secretary for PIH, including Department of Housing and Urban 1. PIH programs for which assistance the authority to waive regulations: Development Act, as amended, provides is provided for or on behalf of Native (1) General Deputy Assistant authority to the Secretary to delegate Americans, Indian Tribes, Alaska Native functions, powers, and duties as the Secretary for Public and Indian Villages, Native Hawaiians, tribal Secretary deems necessary. By separate entities, tribally designated housing Housing; notice published in today’s Federal entities, or tribal housing resident (2) Deputy Assistant Secretary for Register, the Assistant Secretary for organizations; Public Housing and Voucher Programs; Public and Indian Housing delegates 2. Programs authorized pursuant to (3) Deputy Assistant Secretary for authority, through the General Deputy the Native American Housing Public Housing Investments; Assistant Secretary, to Deputy Assistant Assistance and Self-Determination Act Secretary for the Office of Native of 1996 (NAHASDA) (25 U.S.C. 4101 et (4) Deputy Assistant Secretary for American Programs to perform program seq.), as amended; Field Operations; administration, oversight and 3. Community Development Block (5) Deputy Assistant Secretary for the enforcement responsibilities for certain Grant Program for Indian Tribes and Real Estate Assessment Center; of HUD’s programs directed to Native Alaska Native Villages authorized by (6) Deputy Assistant Secretary for Americans, and authorizes the Deputy section 106 of the Housing and Community Development Act of 1974 Office of Native American Programs; Assistant Secretary for the Office of Native American Programs to redelegate (42 U.S.C. 5306); (7) Deputy Assistant Secretary for such authority. In this redelegation of 4. Indian Home Loan Guarantee Policy, Program and Legislative authority, the Deputy Assistant Program authorized by section 184 of Initiatives; Secretary for the Office of Native the Housing and Community (8) Region 7/8 Regional Public American Programs (ONAP) redelegates Development Act of 1992 (12 U.S.C. Housing; and authority for the administration, 1715z–13a); 5. Native Hawaiian Loan Guarantee (9) Region 6 Regional Public Housing. oversight and enforcement of certain PIH programs. Program authorized by section 184A of the Housing and Community These officials shall perform the DATES: Effective Date: July 15, 2011 functions and duties of the office in the Development Act of 1992 (12 U.S.C. FOR FURTHER INFORMATION CONTACT: 1715z–13b); order specified herein, and no official Linda Bronsdon, AICP, Program shall serve unless all the other officials, 6. Rural Innovation Fund grants and Analyst, Office of Policy, Program and Rural Housing and Economic whose position titles precede his/hers in Legislative Initiatives, Office of Public Development grants awarded to Indian this order, are unable to act by reason and Indian Housing, Department of tribes and tribal entities by the Assistant of absence, disability, or vacancy in Housing and Urban Development, 490 Secretary for Community Planning and office. L’Enfant Plaza, Suite 2206, Washington, Development, as may be authorized by DC 20024, e-mail address Section B. Authority Superseded HUD appropriations acts. ONAP Area [email protected], telephone Office Administrators may issue letters This order of succession supersedes number 202–402–3494. (This is not a of warning advising grantees of all prior order of succession for the toll-free number.) This number may be performance problems and describing Assistant Secretary for Public and accessed through TTY by calling the corrective actions. The Office of Indian Housing, including that toll-free Federal Relay Service at Community Planning and Development published on October 18, 2006 (71 FR telephone number 1–800–877–8339. retains enforcement authority beyond 61500). SUPPLEMENTARY INFORMATION: The the letter of warning stage; management action plan (MAP) for 7. Authority to execute all necessary Authority: Section 7(d), Department of Public and Indian Housing (PIH) calls agreements relating to the programs Housing and Urban Development Act, 42 for the implementation of relevant listed in this section, including but not U.S.C. 3535(d). redelegation to field offices to limited to grant agreements; Dated: July 15, 2011. implement HUD’s Strategic Goal 5 to 8. Authority of an ONAP Area Office Sandra B. Henriquez, transform the way HUD does business Administrator to accept and approve a Assistant Secretary for Public and Indian by delegating authority and paper application under the Indian Housing. accountability. All prior redelegations of Community Development Block Grant [FR Doc. 2011–19724 Filed 8–3–11; 8:45 am] authority between the Deputy Assistant (ICDBG) notice of funding availability Secretary for ONAP and ONAP officers, (NOFA) as published on grants.gov BILLING CODE 4210–67–P including the redelegations published upon a showing of good cause. Separate

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00089 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47229

guidance on processing such waivers 3. Issue notices of funding availability the effective date of this redelegation will be provided to the Area Offices; (NOFAs), handbooks, notices and other with respect to programs and matters 9. Authority to approve variances HUD policy directives; listed in this redelegation of authority, above the published Total Development 4. Impose remedies for substantial are hereby ratified. Costs (TDC) for Affordable Housing noncompliance with the requirements Section H. Consultation and under NAHASDA; of the NAHASDA (25 U.S.C. 4101 et Coordination With the General Counsel 10. Authority to approve model seq.) and/or its implementing activities under NAHASDA that have regulations; and The General Counsel shall consult previously been determined by HUD to 5. Declare a failure to comply with the and advise the Assistant Secretary for be designed to carry out the purposes of regulations of the Community PIH, the General Deputy Assistant NAHASDA; Development Block Grants for Indian Secretary, Deputy Assistant Secretary 11. Authority to review performance Tribes and Alaska Native Villages. for Native American Programs, Area reports submitted by a Tribe or a tribally Office Administrators and Officer Section D. Exceptions to Authority of designated entity and issue reports Directors, and all others covered by this Deputy Assistant Secretary for ONAP based on such review; redelegation, as required and when To Redelegate 12. Authority to enter into Voluntary requested, and shall enter into such Compliance Agreements with recipients Some authority may not be protocols as administratively agreed to under the Indian Housing Block Grant redelegated from the Deputy Assistant by the General Counsel and the Program, Native Hawaiian Housing Secretary for ONAP to an ONAP Area Assistant Secretary for PIH or the Block Grant Program, or Community Office Administrator or other ranking General Deputy Assistant Secretary. Development Block Grant Program for program official. The power and This consolidated delegation of Indian Tribes and Alaska Native authority to take the following actions is authority is to be exercised consistently Villages prior to the issuance of a Notice not redelegated to an ONAP Area Office with the delegation from the Secretary of Intent to Impose Remedies; and Administrator or other ranking program to the General Counsel. 13. Authority to waive the official and remains with the Deputy Authority: Section 7 (d) of the Department applicability of the Indian Housing Plan Assistant Secretary for ONAP: of Housing and Urban Development Act, as requirements under section 101(b)(1) of 1. Offer new legislative proposals to amended, (42 U.S.C. 3535(d). NAHASDA in whole or in part for a Congress; period of not more than 90 days in 2. Allocate or reallocate funding Dated: July 15, 2011. accordance with the waiver authority among area offices; Rodger J. Boyd, provided in section 101(b)(2) of the Act, 3. Approve grant extensions or grant Deputy Assistant Secretary, Office of Native upon a determination that the requirements, unless specifically or American Programs. recipient’s failure to comply is due to otherwise noted; and [FR Doc. 2011–19730 Filed 8–3–11; 8:45 am] exigent circumstances beyond its 4. Issue a Notice of Intent to Impose BILLING CODE 4210–67–P control. Remedies under the Indian Housing Block Grant Program, Native Hawaiian Section B. Authority Redelegated to Housing Block Grant Program, or DEPARTMENT OF HOUSING AND Director of Office of Loan Guarantee Community Development Block Grant URBAN DEVELOPMENT Authority is redelegated from the Program for Indian Tribes and Alaska [Docket No. FR–5545–D–04] Deputy Assistant Secretary for ONAP to Native Villages. the Director of the Office of Loan Redelegation of Authority to Regional Section E. Authority To Further Guarantee for administration, oversight Public Housing Directors Redelegate and enforcement of the following: 1. Indian Home Loan Guarantee In accordance with a written AGENCY: Office of the Assistant Program authorized by section 184 of redelegation of authority, ONAP Area Secretary for Public and Indian the Housing and Community Office Administrators or other ranking Housing, HUD. Development Act of 1992 (12 U.S.C. program officials may further redelegate ACTION: Notice of redelegation of 1715z–13a); specific authority. Other redelegated authority. 2. Native Hawaiian Loan Guarantee authority does not supersede the Program authorized by section 184A of authority of a Deputy Assistant SUMMARY: Section 7(d) of the the Housing and Community Secretary as designee of the Assistant Department of Housing and Urban Development Act of 1992 (12 U.S.C. Secretary for PIH. Development Act, as amended, 1715z–13b); and authorizes the Secretary to delegate Section F. Authority Superseded 3. Title VI of NAHASDA (25 U.S.C. functions, powers, and duties as the 4191–4195). All prior redelegations of authority Secretary deems necessary. By separate between the Deputy Assistant Secretary notice published in today’s Federal Section C. Authority Excepted for ONAP and ONAP officers are hereby Register, the Secretary delegates to the This redelegation of authority does revoked and superseded by this Assistant Secretary for Public and not include any power or authority redelegation of authority, including the Indian Housing and the General Deputy under law that specifically requires the redelegations published on September Assistant Secretary for Public and action of either the Secretary of HUD, 9, 2003 (68 FR 53195 through 53198). Indian Housing authority for the the Assistant Secretary of PIH, or the administration of certain Public and Section G. Actions Ratified General Deputy Assistant Secretary. Indian Housing (PIH) programs, and Authority excepted includes the Actions, including limited denials of authorizes the Assistant Secretary to authority to: participation (LDP), but not including further redelegate such authority. In this 1. Issue or waive regulations. ONAP actions that violate NAHASDA or Redelegation of Authority for Public and Area Office Administrators may not federal regulations, previously taken by Indian Housing (PIH), the Assistant exercise this authority; ONAP Area Office Administrators or Secretary for PIH redelegates authority 2. Issue notices to clarify regulations; other ranking program officials through through the PIH General Deputy

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00090 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47230 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Assistant Secretary to the Regional Programs (except the following Section 9. Coordination of audit responses Public Housing Directors for the 8 Project-Based programs: New through PIH’s Audit Liaison Officer on administration of certain PIH programs. Construction, Substantial reports by the U.S. General Accounting This notice also supersedes all prior Rehabilitation, Loan Management Set- Office and through PIH’s Action Official redelegations of authority to the Aside and Property Disposition); and (AO) for reports by HUD’s Office of Regional Public Housing Directors. predecessor programs that are no longer Inspector General; and DATES: Effective Date: July 15, 2011. funded but have ongoing commitments; 10. Approval of grant extensions FOR FURTHER INFORMATION CONTACT: 3. PIH programs for which assistance under the Public Housing Family Self- Linda Bronsdon, AICP, Program is provided for or on behalf of public Sufficiency (PH–FSS) and Resident Analyst, Office of Policy, Program and housing agencies (PHAs), public Opportunities Self Sufficiency (ROSS) Legislative Initiatives, Office of Public housing residents or other low-income programs. Such grant extensions may be and Indian Housing, Department of households; and made at the field level for any length of Housing and Urban Development, 490 4. Except as noted in section C, all time deemed reasonable by the Public L’Enfant Plaza, Suite 2206, Washington, powers and authorities of the Deputy Housing Director or designee; denials of DC 20024, e-mail address Assistant Secretary of the Office of Field FSS and ROSS extensions remain with [email protected], telephone Operations necessary to carry out Public the Deputy Assistant Secretary of the number 202–402–3494. (This is not a and Indian Housing Programs and Office of Public Housing Investments. matters. toll-free number.) This number may be Section C. Excepted Authority That accessed through TTY by calling the Section B. Program Specific Functions Remains With the Secretary or toll-free Federal Relay Service at Assistant Secretary telephone number 1–800–877–8339. In addition to the general redelegations listed in section A, SUPPLEMENTARY INFORMATION: By The redelegation of authority does not specific authority is hereby redelegated separate notice published in today’s include any power or authority under to Regional Public Housing Directors for Federal Register, the Secretary delegates law that specifically requires the action administration of the following: to the Assistant Secretary for PIH and of either the Secretary of HUD, the the General Deputy Assistant Secretary 1. Annual Contributions Contract Assistant Secretary of PIH, or the for PIH authority for the administration (ACCs) amendments for annual grants General Deputy Assistant Secretary for of certain PIH programs, and authorizes under the Capital Fund program, but PIH. Such excepted authority includes, the Assistant Secretary to further excluding the waiver of ACC provisions; but is not limited to authority to: redelegate such authority. In this 2. Execution of ACC amendments or 1. Issue or waive regulations, consolidated redelegation of authority, releases of Declarations of Trust (DOTs) including waivers pursuant to 24 CFR the Assistant Secretary for PIH for Capital Fund Financing or mixed 982.161(c) which permits HUD field redelegates authority through the finance transactions when requested offices to act on waivers of conflict of General Deputy Assistant Secretary for pursuant to an approval letter by the interests. Regional Public Housing PIH, to the Regional Public Housing Deputy Assistant Secretary for the Directors and Public Housing Field Directors for the administration of Office of Public Housing Investments. Office Directors are to not exercise this certain PIH programs. All previous 3. Release of DOTs pursuant to a authority; redelegations of authority to the section 18 approval; 2. Issue notices to clarify regulations; Regional Public Housing Directors, 4. Coordination with the respective 3. Issue notices of funding availability including the ‘‘Redelegation of program office to address specific (NOFAs), handbooks, notices and other Authority Regarding Local Public programs including Family Self HUD policy directives; Housing Program Center Coordinators’’ Sufficiency (FSS), Resident Opportunities and Supportive Services 4. Waive any provision of an ACC (70 FR 1454, published January 7, 2005 including a determination of substantial with an effective date of December 23, (ROSS), Family Unification, HOPE for Elderly Independence and Service breach or default; taking possession or 2004), are hereby revoked and title of property from a PHA; and superseded by this redelegation of Coordinators, HUD–Veterans Administration Supportive Housing, declaring breach or default in response authority. This consolidated to any violation of statute or regulations. redelegation of authority implements, in and Moving to Opportunity and Moving part, the Department’s Strategic Plan to to Work; Section D. Excepted Authority That transform the way HUD does business. 5. Concurrent approval authority for Remains With Deputy Assistant energy performance contracts (EPC) Secretaries Section A. Authority Redelegated (EPCs may be approved in the Field Offices or in Headquarters); The redelegation of authority does not Authority is hereby redelegated by the include any power or authority under 6. Actions associated with the Assistant Secretary, through the Deputy law that specifically requires the action renewal of designated housing plans; Assistant Secretary for PIH, to Regional of a PIH Deputy Assistant Secretary. 7. Execution of letters of support and Public Housing Directors for This excepted authority includes, but is correspondence with local administration of the following: not limited to authority to: 1. Programs under the jurisdiction of congressional offices for programs, the Secretary of HUD that are carried projects and ventures within the 1. Offer new legislative proposals to out pursuant to the authority transferred appropriate region; Congress; from the Public Housing Administration 8. Approval of requests by PHAs to 2. Allocate or reallocate funding under section 5(a) of the HUD Act (42 change their fiscal year end (FYE) dates amongst field offices; U.S.C 3534) as amended; subject to coordination with the Real 3. Approve remedies for 2. Programs authorized pursuant to Estate Assessment Center for PHAs with noncompliance requiring notice and the United States Housing Act of 1937 public housing units and with the opportunity for administrative hearing; (1937 Act) (42 U.S.C. 1437 et seq.) as Financial Management Division of the 4. Waive provisions or instructions of amended, including but not limited to Housing Choice Vouchers program for PIH directives relating to the obligation the Public Housing Program, Section 8 vouchers-only PHAs; or payment of operating subsidies;

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00091 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47231

5. Solicit competitive proposals for redelegated approval authority from the DEPARTMENT OF HOUSING AND the management of all or part of public Assistant Secretary for PIH for renewals URBAN DEVELOPMENT housing administered by a PHA; of designated housing plans pursuant to [Docket No. FR–5545–D–03] 6. Approve special rent adjustments; section 7 of the United States Housing 7. Conduct tax credit and/or subsidy Act of 1937. Approval of new Redelegation of Authority to the layering reviews; designated housing plans was not Deputy Assistant Secretaries for 8. Approve PHA requests for redelegated. Public and Indian Housing exception payment standards that exceed 120 percent of the fair market 3. Federal Register Docket Number AGENCY: Office of the Assistant rent (FMR); and 5076–D–13 ‘‘Delegation of Authority to Secretary for Public and Indian 9. Approve grant extensions, unless the Deputy Assistant Secretary for the Housing, HUD. specifically or otherwise noted. Office of Public Housing Investments’’, ACTION: Notice of redelegation of Approval of grant extensions under FSS (71 Federal Register 70783, published authority. and ROSS may be extended by Public December 6, 2006 with an effective date Housing Directors. Extensions may be of November 28, 2006) redelegated SUMMARY: Section 7(d) of the made by Regional Public Housing authority from the Assistant Secretary to Department of Housing and Urban Directors for any length of time deemed Public Housing Field Office Directors to Development Act, as amended, reasonable; denials of FSS and ROSS execute amendments to the ACC authorizes the Secretary to delegate extensions remain with the Deputy associated with proposals submitted by functions, powers, and duties as the Assistant Secretary of the Office of PHAs pursuant to section 30, which Secretary deems necessary. By separate Public Housing Investments. have been approved by either the notice published in today’s Federal Register, the Secretary delegates to the Section E. Authority To Further Assistant Secretary, General Deputy Assistant Secretary for Public and Redelegate Assistant Secretary, or the Deputy Assistant Secretary of OPHI. Indian Housing and the General Deputy The authority not excepted herein Assistant Secretary for Public and may be further redelegated, as Section G. Authority Superseded Indian Housing authority for the appropriate, by Regional Public Housing administration of certain Public and Directors to Public Housing Hub All previous redelegations of Indian Housing (PIH) programs, and Directors, Program Center Coordinators authority to the Regional Public authorizes the Assistant Secretary to and other ranking program officials on Housing Directors are hereby revoked further redelegate such authority. In this site or out-stationed in accordance with and superseded, including the consolidated redelegation of authority a written redelegation of authority. Such ‘‘Redelegation of Authority Regarding the Assistant Secretary for PIH subsequent redelegations may follow Local Public Housing Program Center redelegates to the PIH Deputy Assistant the format presented herein or may be Coordinators’’, published on January 7, Secretaries authority for the a memorandum stating that specific 2005 (70 FR 1454). administration of certain PIH programs. authority is hereby designated. Time DATES: Effective Date: July 15, 2011. limits for such any further redelegated Section H. Consultation and FOR FURTHER INFORMATION CONTACT: authority may be added. Coordination With the General Counsel Linda Bronsdon, AICP, Program Section F. Actions Ratified The General Counsel shall consult Analyst, Office of Policy, Program and The Deputy Assistant Secretaries and advise the Assistant Secretary for Legislative Initiatives, Office of Public hereby ratify all actions, including PIH, the General Deputy Assistant and Indian Housing, Department of limited denials of participation, but not Secretary, Deputy Assistant Secretaries, Housing and Urban Development, 490 including actions that violate the 1937 Regional Public Housing Directors and L’Enfant Plaza, Suite 2206, Washington, Act, federal regulations or ACC all others covered by this redelegation, DC 20024, e-mail address, provisions, previously taken by as required and when requested and [email protected], telephone Regional Public Housing Directors, PIH shall enter into such protocols as number 202–402–3494. (This is not a Hub Directors, Deputy Directors, administratively agreed to by the toll-free number.) This number may be Program Center Coordinators, Division General Counsel and the Assistant accessed through TTY by calling the toll-free Federal Relay Service at Directors of Public Housing in HUD Secretary for PIH or the General Deputy telephone number 1–800–877–8339. Field Offices, under prior redelegations, Assistant Secretary. This consolidated including those noted below, through delegation of authority is to be exercised SUPPLEMENTARY INFORMATION: By the effective date of this redelegation: consistently with the delegation from separate notice published in today’s Federal Register, the Secretary delegates 1. Federal Register Docket Number the Secretary to the General Counsel. 4837–D–32 ‘‘Notice of Revocation and to the Assistant Secretary for Public and Redelegation of Authority for Indian Authority: Section 7 (d) of the Department Indian Housing and the General Deputy and Alaska Native Programs’’, (68 FR of Housing and Urban Development Act, as Assistant Secretary for Public and 53197, published September 9, 2003 amended, (42 U.S.C. 3535(d)). Indian Housing authority for the with an effective date of July 18, 2003) Dated: July 15, 2011. administration of certain PIH programs, revoked prior redelegations to the Sandra B. Henriquez, and authorizes the Assistant Secretary Deputy Director for Headquarter to further redelegate such authority. In Assistant Secretary for Public and Indian this consolidated redelegation of Operations and the Deputy for Field Housing. Operations; authority, the Assistant Secretary for 2. Federal Register Docket Number [FR Doc. 2011–19729 Filed 8–3–11; 8:45 am] PIH redelegates, through the General 4837–D–56 ‘‘Redelegation of Authority BILLING CODE 4210–67–P Deputy Assistant Secretary for PIH, to Regarding Local Public Housing the Deputy Assistant Secretaries Program Center Coordinators’’, (70 FR authority for the administration of 1454, published January 7, 2005 with an certain PIH programs. All previous effective date of December 23, 2004) delegations of authority from the

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00092 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47232 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Assistant Secretary for PIH to PIH’s 2. Issue notices to clarify regulations; 7. Approve special rent adjustments; Deputy Assistant Secretaries are hereby 3. Issue notices of funding availability 8. Conduct tax credit and/or subsidy revoked and superseded by this (NOFAs), handbooks, notices and other layering reviews, unless specifically or consolidated redelegation of authority, HUD policy directives; and otherwise noted; including the redelegation of authority 4. Waive any provision of an Annual 9. Approve PHA requests for from the PIH General Deputy Assistant Contributions Contract (ACC) including exception payment standards that Secretary to PIH’s Deputy Assistant a determination of substantial breach or exceed 120 percent of the fair market Secretaries published on January 13, default in response to any violation of rent (FMR); and 2009 (74 FR 1704). This consolidated statute or regulations; 10. Approve grant extensions, unless redelegation of authority implements, in 5. Impose remedies for substantial specifically or otherwise noted. noncompliance with the requirements part, the Department’s Strategic Plan to Section E. Redelegation of Authority of the Native American Housing transform the way HUD does business. Concerning the Office of Public Housing Assistance and Self-Determination Act and Vouchers Section A. Authority Redelegated of 1996 (NAHASDA) (25 U.S.C. 4101 et The Assistant Secretary for PIH seq.) and/or it’s implementing The Assistant Secretary for PIH hereby redelegates, through the General regulations; hereby redelegates, through the General Deputy Assistant Secretary for PIH, to 6. Declare a failure to comply with the Deputy Assistant Secretary for PIH, to Deputy Assistant Secretaries for PIH the regulations of the Community the Deputy Assistant Secretary for the following authorities: Development Block Grants for Indian Office of Public Housing and Vouchers 1. Programs under the jurisdiction of Tribes and Alaska Native Villages; (OPHV) administrative, oversight and the Secretary carried out pursuant to the 7. Execute Moving to Work enforcement responsibilities and the authority transferred from the Public agreements or amendments thereto; and authority to: Housing Administration under section 8. Issue limited denials of 1. Administer the rental voucher 5(a) of the Department of Housing and participation (LDP). assistance programs under section 8 of Urban Development Act (42 U.S.C. the 1937 Act (42 U.S.C. 1437f), Section C. Authority To Further 3534) as amended; including the section 8 Family Self- 2. Each program of the Department Redelegate Sufficiency (FSS) program and section 8 authorized pursuant to the United States In accordance with a written Management Assessment Program Housing Act of 1937 (1937 Act) (42 redelegation of authority, a Deputy (SEMAP); U.S.C. 1437 et seq.) as amended, Assistant Secretary may further 2. Establish targeting and eligibility including but not limited to the Public redelegate specific authority to PIH for participation in the Housing Choice Housing Program, Section 8 Programs Directors or to other ranking PIH Voucher (HCV) programs pursuant to (except the following Section 8 Project- program officials. Redelegated authority section 8(o)(3) of the 1937 Act; Based Programs: New Construction, to PIH Directors or other ranking PIH 3. Determine payment standards for Substantial Rehabilitation, Loan program officials does not supersede the subsidy amounts by program Management Set-Aside and Property authority of a Deputy Assistant participants pursuant to sections Disposition) and predecessor programs Secretary as designee of the Assistant 8(o)(1)(B), (D), and (E) 1937 Act; that are no longer funded but have Secretary for PIH. 4. Develop program requirements for tenant rent and maximum rent burdens ongoing commitments; Section D. Exceptions to Authority To 3. PIH programs for which assistance pursuant to sections 8(o)(2)(A) and Further Redelegate is provided for or on behalf of public 8(o)(2)(B)) and section 8(o)(3) 1937 Act, housing agencies (PHAs), public Authority redelegated from a Deputy respectively; housing residents or other low-income Assistant Secretary to PIH Directors or 5. Set guidance regarding violent households; and other ranking PIH program officials is criminal activity on or near premises 4. PIH programs for which assistance limited. Excepted power and authority, and implement the statutory grounds for is provided for or on behalf of Native meaning authority that may not be termination of tenancy pursuant to Americans, Indian Tribes, Alaska Native further redelegated by a Deputy section 8(o)(7)(D) 1937 Act; Villages, Native Hawaiians, tribal Assistant Secretary, includes authority 6. Administer tenant-based and entities, tribally designated housing to: project-based voucher assistance under entities, or tribal housing resident 1. Offer new legislative proposals to section 8(o) 1937 Act; organizations, as further described in Congress; 7. Administer homeownership Section H. 2. Allocate or reallocate funding voucher assistance under section 8(y) among field offices; 1937 Act as amended by the American Section B. Authority Excepted 3. Approve remedies for Homeownership and Economic The redelegation of authority to a noncompliance requiring notice and Opportunity Act of 2000 (Pub. L. 106– Deputy Assistant Secretary does not opportunity for administrative hearing; 569) (42 U.S.C. 1437f(y); and include any authority under law 4. Issue a Notice of Intent to Impose 8. Administer enhanced voucher specifically requiring the action of the Remedies under the Indian Housing assistance under section 8(t) 1937 Act. Secretary of HUD, Assistant Secretary of Block Grant Program, Native Hawaiian PIH, or the General Deputy Assistant Housing Block Grant Program, or Section F. Redelegation of Authority Secretary for PIH. Authority excepted Community Development Block Grant Concerning the Office of Public Housing includes authority to: Program for Indian Tribes and Alaska Investments 1. Issue or waive regulations, Native Villages; The Assistant Secretary for PIH including waivers pursuant to 24 CFR 5. Waive provisions or instructions of hereby redelegates authority, through 982.161(c), which permits HUD field PIH directives relating to the obligation the General Deputy Assistant Secretary offices to act on waivers of conflict of or payment of operating subsidies; for PIH, to the Deputy Assistant interests. Public Housing Field Office 6. Solicit competitive proposals for Secretary for the Office of Public Directors are not to exercise this the management of all or part of public Housing Investments (OPHI) to perform authority; housing administered by a PHA; administrative, oversight and

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00093 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47233

enforcement responsibilities and 11. Agreements for the taking of Division of the Housing Choice authority for: public housing property in eminent Vouchers program for vouchers-only 1. Public Housing Capital Fund domain proceedings; PHAs; pursuant to section 9 of the 1937 Act, 12. Homeownership programs 9. Coordination of audit responses including but not limited to, approvals pursuant to section 32 of the 1937 Act through PIH’s Audit Liaison Officer on of proposals submitted under the and including amendments under reports by the United States General Capital Fund Financing Program (CFFP) previously approved 5(h) and Turnkey Accounting Office and through PIH’s or the Operating Fund Financing III homeownership plans; and Action Official (AO) for reports by Program (OFFP) under section 9(e) of 13. Execute amendments to ACCs HUD’s Office of Inspector General; and regarding provisions for under the the 1937 Act, with OFFP approvals 10. Approval of grant extensions subject to coordination and consultation Capital Fund Program and/or coordinate such executions with field offices. under the Public Housing Family Self- with PIH’s Real Estate Assessment Sufficiency (PH–FSS) and Resident Center; Section G. Redelegation of Authority Opportunities Self Sufficiency (ROSS) 2. Required conversions pursuant to Concerning the Office of Field programs. Such grant extensions may be section 33, voluntary conversions Operations made at the field level for any length of pursuant to section 22, and mandatory The Assistant Secretary for PIH time deemed reasonable by the Public conversions pursuant to section 202 of hereby redelegates authority, through Housing Director or designee; denials of the 1937 Act (section 202 is repealed the General Deputy Assistant Secretary FSS and ROSS extensions remain with but continues to apply to identified and for PIH, to the Deputy Assistant the Deputy Assistant Secretary of the non-appealed public housing Secretary for the Office of Field Office of Public Housing Investments. developments subject to mandatory Operations (OFO) to perform Section H. Redelegations of Authority conversion until all requirements are administrative, oversight and satisfied); Concerning the Office of Native enforcement responsibilities of American Programs 3. Resident Opportunities and Self- receiverships, regional, hub and field Sufficiency (ROSS) program pursuant to operations for redelegated authority The Assistant Secretary for PIH the Quality Housing and Work under section A and the following hereby redelegates authority, through Responsibility Act of 1998 (QHWRA), specific authority for further the General Deputy Assistant Secretary including grant extensions for the redelegation: for PIH, to the Deputy Assistant expenditure of these funds; 1. ACC amendments for annual grants Secretary for the Office of Native 4. Public Housing Neighborhood under the Capital Fund Program, but American Programs to perform program Networks (NN) program pursuant to excluding the waiver of ACC provisions; administration, oversight and section 9 of the 1937 Act; 2. Execution of ACC amendments or enforcement responsibilities associated 5. HOPE VI Program pursuant to releases of Declarations of Trust (DOTs) with the following: section 24 of the 1937 Act and for Capital Fund Financing or mixed 1. Programs authorized pursuant to Appropriation Acts, including grant finance transactions when requested the Native American Housing extensions and issuance of defaults of pursuant to an approval letter by the Assistance and Self-Determination Act HOPE VI grant agreements; Deputy Assistant Secretary for the of 1996 (25 U.S.C. 4101 et seq.), as 6. Choice Neighborhoods program Office of Public Housing Investments. amended; pursuant to the FY 2010 Consolidated 3. Release of DOTs pursuant to a 2. The Community Development Appropriations Act, Division A, Title II section 18 approval; Block Grant Program for Indian Tribes (Pub. L. 111–117, approved December 4. Coordination with the respective and Alaska Native Villages authorized 16, 2009) and any future appropriations program office to address specific by section 106 of the Housing and or authority enacted for the Choice programs including Family Self Community Development Act of 1974 Neighborhood Program in consultation Sufficiency (FSS), Resident (42 U.S.C. 5306); and coordination with the Office of Opportunities and Supportive Services Housing’s Multifamily Housing (ROSS), Family Unification, HOPE for 3. The Indian Home Loan Guarantee Programs; Elderly Independence and Service Program authorized by section 184 of 7. Public Housing mortgages and Coordinators, HUD–Veterans the Housing and Community security interests pursuant to section 30 Administration Supportive Housing, Development Act of 1992 (12 U.S.C. of the 1937 Act, and approvals of and Moving to Opportunity and Moving 1715z–13a); proposals submitted thereto; to Work; 4. The Native Hawaiian Loan 5. Concurrent approval authority for 8. Mixed finance transactions, Guarantee Fund authorized by section energy performance contracts (EPC) 184A of the Housing and Community including approvals of proposals (EPCs may be approved in the Field submitted thereto, pursuant to section Development Act of 1992 (12 U.S.C. Offices or in Headquarters); 1715z–13b); and 35 of the 1937 Act; 6. Actions associated with the 9. Moving to Work (MTW) renewal of designated housing plans; 5. Grants awarded to Indian tribes and demonstration program pursuant to 7. Execution of letters of support and tribal entities by the Assistant Secretary section 204 of the Omnibus correspondence with local for Community Planning and Consolidated Rescissions and congressional offices for programs, Development under the Rural Appropriations Act of 1996 including projects and ventures within the Innovation Fund Program, and under approvals of MTW annual plans and appropriate region; the Rural Housing and Economic issuance of defaults of MTW 8. Approval of requests by PHAs to Development Program; and agreements; change their fiscal year end (FYE) 6. Coordination of audit responses 10. Demolition or disposition subject to coordination with the Real through PIH’s Audit Liaison Officer on applications pursuant to section 18 of Estate Assessment Center (REAC) for reports by the U.S. General Accounting the 1937 Act and the implementing PHAs with public housing units and Office and through PIH’s AO for reports regulations at 24 CFR part 970; with the Financial Management by HUD’s Office of Inspector General.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00094 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47234 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Section I. Redelegation of Authority Secretaries as required and when 1. Unknown parties, parties unable to Concerning the Real Estate Assessment requested and shall enter into such be located after reasonable efforts have Center protocols as administratively agreed to been expended to locate, parties who The Assistant Secretary for PIH by the General Counsel and the fail or refuse to sign their return receipt, hereby redelegates authority, through Assistant Secretary for PIH or the and parties who receive a copy of the the General Deputy Assistant Secretary General Deputy Assistant Secretary. decision by regular mail which is not for PIH, to the Deputy Assistant This consolidated delegation of certified, return receipt requested, shall Secretary for the Real Estate Assessment authority is to be exercised consistently have until September 6, 2011 to file an Center to perform program with the delegation from the Secretary appeal. administration, oversight and to the General Counsel. 2. Parties receiving service of the enforcement responsibilities associated Authority: Section 7 (d) of the Department decision by certified mail shall have 30 with the Public Housing Operating of Housing and Urban Development Act, as days from the date of receipt to file an Fund, as the annual subsidy to PHAs for amended, (42 U.S.C. 3535(d). appeal. 3. Notices of appeal transmitted by operations and management pursuant to Dated: July 15, 2011. section 9(e) of the 1937 Act (42 U.S.C. electronic means, such as facsimile or e- Sandra B. Henriquez, mail, will not be accepted as timely 1437g(e)) and regulations at 24 CFR part Assistant Secretary for Public and Indian 990. filed. Housing. Parties who do not file an appeal in Section J. Redelegation of Authority [FR Doc. 2011–19728 Filed 8–3–11; 8:45 am] accordance with the requirements of 43 Concerning the Office of Policy, BILLING CODE 4210–67–P CFR part 4, subpart E, shall be deemed Program and Legislative Initiatives to have waived their rights. The Assistant Secretary for PIH ADDRESSES: A copy of the decision may hereby redelegates authority, through DEPARTMENT OF THE INTERIOR be obtained from: Bureau of Land the General Deputy Assistant Secretary Bureau of Land Management Management, Alaska State Office, 222 for PIH, to the Deputy Assistant West Seventh Avenue, #13, Anchorage, Secretary for the Office of Policy, [AA–6705–E, AA–6705–K, AA–6705–A2, Alaska 99513–7504. Program and Legislative Initiatives to LLAK965000–L14100000–KC0000–P] FOR FURTHER INFORMATION CONTACT: The perform administration and oversight Alaska Native Claims Selection BLM by phone at 907–271–5960 or by responsibilities associated with policy e-mail at [email protected]. analysis, research, actions by Congress, AGENCY: Bureau of Land Management, Persons who use a Telecommunications Executive Orders, rulemaking and Interior. Device for the Deaf (TDD) may call the directives management on behalf of the ACTION: Notice of decision approving Federal Information Relay Service Assistant Secretary for PIH, including lands for conveyance. (FIRS) at 1–800–877–8339 to contact the redelegated authority to execute certain BLM during normal business hours. In clearance and administrative records on SUMMARY: As required by 43 CFR addition, the FIRS is available 24 hours behalf of the Assistant Secretary for PIH. 2650.7(d), notice is hereby given that a day, 7 days a week, to leave a message Section K. Authority Superseded the Bureau of Land Management (BLM) or question with the BLM. The BLM will issue an appealable decision to All previous redelegations of will reply during normal business Togiak Natives Limited. The decision hours. authority from the Assistant Secretary approves the surface estate in the lands for PIH to the PIH Deputy Assistant described below for conveyance Judy A. Kelley, Secretaries are hereby revoked and pursuant to the Alaska Native Claims Land Law Examiner, Land Transfer superseded by this consolidated Settlement Act. The subsurface estate in Adjudication II Branch. redelegation of authority, including the these lands will be conveyed to Bristol [FR Doc. 2011–19782 Filed 8–3–11; 8:45 am] PIH redelegation published on January Bay Native Corporation when the BILLING CODE 4310–JA–P 13, 2009 (74 FR 1704) and the surface estate is conveyed to Togiak ‘‘Delegation of Authority to the Deputy Natives Limited. The lands are in the Assistant Secretary for the Office of vicinity of Togiak, Alaska, and are DEPARTMENT OF THE INTERIOR Public Housing Investments’’ published located in: on December 6, 2006 (71 FR 70783). Bureau of Land Management Seward Meridian, Alaska Section L. Actions Ratified [LLCON06000 L1610000.DP0000] T. 11 S., R. 67 W., The Assistant Secretary for PIH Sec. 17. Notice of Intent To Solicit Nominations hereby ratifies all actions previously Containing 630.27 acres. for the Dominguez-Escalante National taken by PIH Deputy Assistant T. 12 S., R. 67 W., Conservation Area Advisory Council Secretaries under any previous Sec. 7. redelegation of authority through the Containing 624.91 acres. AGENCY: Bureau of Land Management, effective date of this redelegation, with Interior. T. 15 S., R. 69 W., respect to programs and matters listed Sec. 15. ACTION: Notice of Intent. in this redelegation of authority. Any Containing 1.55 acres. SUMMARY: The Secretary of the Interior previous actions ratified, remain Aggregating 1,256.73 acres. ratified. (Secretary) was directed by the Omnibus Notice of the decision will also be Public Lands Management Act of 2009 Section M. Consultation and published four times in the Bristol Bay to establish the Dominguez-Escalante Coordination With the General Counsel Times. National Conservation Area (D–E NCA) The General Counsel shall consult DATES: Any party claiming a property Advisory Council (Council). The 10- and advise the Assistant Secretary for interest in the lands affected by the member Council was formed in PIH, the General Deputy Assistant decision may appeal the decision within December 2010 to provide Secretary, and Deputy Assistant the following time limits: recommendations to the Secretary

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00095 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47235

through the Bureau of Land 1. One member appointed after DEPARTMENT OF THE INTERIOR Management (BLM) during the considering the recommendations of the development of a resource management Mesa County Commission; Bureau of Land Management plan (RMP) for the D–E NCA. Since this 2. One member appointed after [LLCAD0900, council was formed, one council considering the recommendations of the L51010000.LVRWB09B2380.FX0000] member representing Delta County and Montrose County Commission; one council member representing Notice of Intent To Prepare an natural values have expressed interest 3. One member appointed after Environmental Impact Statement for in resigning from the council due to considering the recommendations of the the Proposed Stateline Solar Farm, time conflicts. As a result, the Secretary Delta County Commission; San Bernardino County, CA and is soliciting applications to replace the 4. One member appointed after Possible Land Use Plan Amendments current occupants of these two seats. considering the recommendations of the and Notice of Segregation of Public DATES: Submit nomination packages on permittees holding grazing allotments Lands or before September 6, 2011. within the D–E NCA or the wilderness; AGENCY: Bureau of Land Management, ADDRESSES: Send completed Council and Interior. nominations to D–E NCA Interim 5. Five members who reside in, or ACTION: Notice of Intent. Manager, Grand Junction Field Office, within reasonable proximity to Mesa, 2815 H Road, Grand Junction, Colorado Delta, or Montrose counties, Colorado, SUMMARY: In compliance with the 81506. Nomination forms may be with backgrounds that reflect: National Environmental Policy Act of obtained at the Grand Junction Field 1969 (NEPA), as amended, and the a. The purposes for which the D–E Office at the above address or at the Federal Land Policy and Management NCA or wilderness was established; and BLM Uncompahgre Field Office, 2465 S. Act of 1976 (FLPMA), as amended, the Townsend Ave., Montrose, Colorado b. The interests of the stakeholders Bureau of Land Management (BLM) 81401. that are affected by the planning and Needles Field Office, Needles, management of the D–E NCA and California, intends to prepare an FOR FURTHER INFORMATION CONTACT: wilderness. Environmental Impact Statement (EIS), Katie A. Stevens, D–E NCA Interim which may include potential land use Any individual or organization may Manager, 970–244–3049, plan amendments to the California nominate one or more persons to serve [email protected]. Persons who use a Desert Conservation Area (CDCA) Plan, telecommunications device for the deaf on the Council. Individuals may as amended, and the Las Vegas Resource (TDD) may call the Federal Information nominate themselves for Council Management Plan (RMP), related to First Relay Service (FIRS) at 1–800–877–8339 membership. The Obama Solar Development, Inc.’s (First Solar) to contact the above individual during Administration prohibits individuals right-of-way (ROW) application for the normal business hours. The FIRS is who are currently federally registered Stateline Solar Farm (Stateline), a 300– available 24 hours a day, seven days a lobbyists to serve on all Federal Megawatt (MW) photovoltaic (PV) Solar week, to leave a message or question Advisory Committee Act (FACA) and electricity generation project. with the above individual. You will non-FACA boards, committees, or By this notice, the BLM is: (1) receive a reply during normal business councils. Nomination forms may be Announcing the beginning of the hours. obtained from the BLM Grand Junction scoping process to solicit public SUPPLEMENTARY INFORMATION: The D–E or Uncompahgre Field Offices, or may comments and identify issues related to NCA and Dominguez Canyon be downloaded from the following Web the EIS; and (2) Segregating the public Wilderness Area, located within the D– site: http://www.blm.gov/co/st/en/nca/ lands located within the Stateline ROW E NCA, were established by the denca/denca_rmp/DENCA_Resource application area from operation of the Omnibus Public Land Management Act _Advisory_Council.html. public land laws including the Mining of 2009, Public Law 111–11 (Act). The Nomination packages must include a Law, but not the Mineral Leasing or D–E NCA is comprised of approximately completed nomination form, letters of Material Sales Acts, for a period of 2 209,610 acres of public land, including reference from the represented interests years from the date of publication of this approximately 66,280 acres designated or organizations, as well as any other notice. as Dominguez Canyon Wilderness Area information relevant to the nominee’s DATES: This notice initiates: (1) The located in Delta, Montrose, and Mesa qualifications. public scoping process for the EIS; and counties, Colorado. The purpose of the (2) The 2-year segregation period for the D–E NCA is to conserve and protect the The Grand Junction and public lands within the Stateline ROW unique and important resources and Uncompahgre Field Offices will review application area, effective as of August values of the land for the benefit and the nomination packages in 4, 2011. The segregation will terminate enjoyment of present and future coordination with the affected counties as described below (see SUPPLEMENTARY generations. These resources and values and the Governor of Colorado before INFORMATION section). include the geological, cultural, forwarding recommendations to the Comments on issues related to the EIS archaeological, paleontological, natural, Secretary, who will make the may be submitted in writing until scientific, recreational, wilderness, appointments. The Council shall be September 6, 2011. The date(s) and wildlife, riparian, historical, subject to the FACA, 5 U.S.C. App. 2; location(s) of any scoping meetings will educational, and scenic resources of the and the Federal Land Management be announced at least 15 days in public lands, and the water resources of Policy Act of 1976, 43 U.S.C. 1701 et advance through local news media, area streams based on seasonally seq. newspapers, and the BLM Web site at: available flows that are necessary to http://www.blm.gov/ca/st/en/fo/ support aquatic, riparian, and terrestrial Helen M. Hankins, cdd.html. In order for comments to be species and communities. According to State Director. fully considered in the Draft EIS, all the Act, the 10-member council is to [FR Doc. 2011–19778 Filed 8–3–11; 8:45 am] comments must be received prior to the include, to the extent practicable: BILLING CODE 4310–JB–P close of the scoping period or 15 days

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00096 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47236 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

after the last public meeting, whichever economic impacts, traffic, water, and San Bernardino Meridian, is later. We will provide additional visual resource resources. Township 16 North, Range 14 East, opportunities for public participation Pursuant to the BLM’s CDCA Plan, Sec. 1, lots 1 and 2, W1⁄2 SW1⁄4; upon publication of the Draft EIS. sites associated with power generation Sec. 2, lots 1 and 2, SE1⁄4; ADDRESSES: You may submit comments or transmission not identified in the Sec. 3, lot 1; on issues and planning criteria related CDCA Plan will be considered through Sec. 11, NE1⁄4 NE1⁄4 , NW1⁄4 NE1⁄4; to the Stateline project by any of the the plan amendment process to Sec. 12, NW1⁄4 NW1⁄4. following methods: determine the suitability of the site for Township 17 North, Range 14 East, • Web site: http://www.blm.gov/ca/st/ solar development. The BLM may also Sec. 13, W1⁄2 , SE1⁄4; en/fo/cdd.html. consider additional potential plan Sec. 14, All; • E-mail: [email protected]. amendments to the CDCA Plan and the Sec. 15, All; • Fax: (951) 697–5299. Las Vegas RMP that might arise based Sec. 22, All excluding the solar ROW • Mail: ATTN: Jeffery Childers, on its assessment of the potential CACA 48668; Project Manager, BLM California Desert cumulative effects of other projects in Sec. 23, All; District Office, 22835 Calle San Juan de the larger Ivanpah Valley watershed in Sec. 24, N1⁄2, SW1⁄4, NW1⁄4 NE1⁄4 SE1⁄4, W1⁄2 Los Lagos, Moreno Valley, California California and Nevada to a range of SE1⁄4; 92553–9046. resources, including, without limitation, Sec. 25, All; Documents pertinent to this proposal biological, physical, and cultural Sec. 26, All; may be examined at the California resources. By this notice, the BLM is Sec. 34, SE1⁄4 SE1⁄4; Desert District office (see address complying with requirements in 43 CFR Sec. 35, All. above). 1610.2(c) to notify the public of The BLM has determined that this FOR FURTHER INFORMATION CONTACT: potential amendments to the CDCA Plan segregation is necessary to ensure the And/or to have your name added to our and Las Vegas RMP, predicated on the mailing list, contact Jeffery Childers; findings of the EIS. If land use plan orderly administration of the public telephone 951–697–5308; address BLM amendments are necessary, the BLM lands by maintaining the status quo California Desert District Office, 22835 will integrate the land use planning while it processes the First Solar’s ROW Calle San Juan de Los Lagos, Moreno process with the NEPA process for the authorization request for the above Valley, California 92553–9046; e-mail at Stateline project. described lands. The plan amendments will be [email protected]. Persons who use a The segregation period will terminate completed in compliance with FLPMA, telecommunications device for the deaf NEPA, and all other relevant Federal and the lands will automatically reopen (TDD) may call the Federal Information law, executive orders, and BLM to appropriation under the public land Relay Service (FIRS) at 1–800–877–8339 policies. Any new plan decisions will laws, including the Mining Law, if one to contact the above individual during complement existing plan decisions and of the following events occurs: (1) The normal business hours. The FIRS is recognize valid existing rights. BLM issues a decision granting, granting available 24 hours a day, 7 days a week, The BLM will use and coordinate the with modifications, or denying First to leave a message or question with the NEPA commenting process to satisfy the Solar’s ROW authorization request; (2) above individual. You will receive a public involvement process pursuant to Publication of a Federal Register notice reply during normal business hours. Section 106 of the National Historic of termination of this segregation; or (3) SUPPLEMENTARY INFORMATION: First Solar Preservation Act (NHPA) (16 U.S.C. No further administrative action occurs has requested a ROW authorization to 470f) as provided for in 36 CFR at the end of this segregation. Any construct, operate, maintain, and 800.2(d)(3). Native American tribal segregation made under this authority is decommission the 300–MW PV consultations will be conducted in effective only for a period of up to 2 Stateline solar energy project. The BLM accordance with policy, and tribal years. is responding to First Solar’s ROW concerns will be given due application as required by FLPMA. The consideration, including impacts on Before including your address, phone Stateline project would be located on Indian trust assets. Federal, State, and number, e-mail address, or other BLM-administered lands and would local agencies, along with other personal identifying information in your include access roads, PV arrays, an stakeholders that may be interested or comment, you should be aware that electrical substation, meteorological affected by the BLM’s decision on this your entire comment—including your station, monitoring and maintenance project, are invited to participate in the personal identifying information—may facility, and a 2.3 mile generation tie- scoping process and, if eligible, may be made publicly available at any time. line on approximately 2,000 acres. request or be requested by the BLM to While you can ask us in your comment Potential alternatives to the proposed participate as a cooperating agency. In to withhold your personal identifying action may include reduced acreage, connection with its processing of First information from public review, we reduced MW, and/or modified footprint Solar’s ROW application, the BLM is cannot guarantee that we will be able to alternatives. The project location is in also segregating, under the authority do so. San Bernardino County approximately 2 contained in 43 CFR 2091.3–1(e) and 43 miles south of the Nevada-California CFR 2804.25(e), subject to valid existing Authority: 40 CFR 1501.7, 43 CFR 1610.2, border and 0.5 miles west of Interstate rights, the public lands within the 2091.3–1(e), and 2804.25(e) 15. The purpose of the public scoping Stateline application area from the Thomas Pogacnik, process is to determine relevant issues operation of the public land laws Deputy State Director, Natural Resources. that will influence the scope of the including the Mining Law, but not the [FR Doc. 2011–19781 Filed 8–3–11; 8:45 am] environmental analysis, including Mineral Leasing or the Material Sales alternatives, and guide the process for Acts, for a period of 2 years from the BILLING CODE 4310–40–P developing the EIS. At present, the BLM date of publication of this notice. The has identified the following preliminary public lands contained within this issues: special status species, cultural segregation total approximately 2,000 resources, route designation, social and acres and are described as follows:

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00097 Fmt 4703 Sfmt 9990 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47237

DEPARTMENT OF THE INTERIOR uneconomic to manage as part of the mineral report are available for review public lands. The land proposed for sale at the location identified in ADDRESSES Bureau of Land Management is difficult and uneconomic for the BLM above. Public Comments regarding the [LLCA9300000 L58790000 EU0000; CACA to manage because it is a small, isolated proposed sale may be submitted in 50168–14] parcel which lacks legal access. The writing to the attention of the BLM BLM is proposing a direct sale to Hollister Field Manager (see ADDRESSES Notice of Realty Action: Direct Sale of Anthony Lombardo, who owns the above) on or before September 19, 2011. Public Land in Monterey County, CA surrounding private land and controls Comments received in electronic form, access to the public land. A competitive such as e-mail or facsimile, will not be AGENCY: Bureau of Land Management, sale is not considered appropriate considered. Any adverse comments Interior. because the surrounding private land is regarding the proposed sale will be ACTION: Notice of realty action. owned by one party and the public land reviewed by the BLM State Director or has little utility except as part of the SUMMARY: The Bureau of Land other authorized official of the surrounding ranch lands. The BLM has Management (BLM), Hollister Field Department of the Interior, who may completed a mineral potential report Office, proposes to sell a parcel of sustain, vacate, or modify this realty which concluded there are no known action in whole or in part. In the public land consisting of approximately mineral values in the land proposed for 40 acres in Monterey County, California. absence of timely filed objections, this sale. The BLM proposes that realty action will become the final The public land would be sold to conveyance of the Federal mineral Anthony Lombardo for the appraised determination of the Department of the interests would occur simultaneously Interior. fair market value of $25,000. with the sale of the land. The purchaser DATES: Written comments regarding the Before including your address, phone would be required to pay a $50 non- number, e-mail address, or other proposed sale must be received by the refundable filing fee for processing the BLM on or before September 19, 2011. personal identifying information in your conveyance of the mineral interests. comment, be advised that your entire ADDRESSES: Written comments On August 4, 2011, the above comment—including your personal concerning the proposed sale should be described land will be temporarily identifying information—may be made sent to the Field Manager, BLM segregated from all forms of publicly available at any time. While Hollister Field Office, 20 Hamilton appropriation under the public land you can ask us in your comment to Court, Hollister, California 95023. laws, including the mining laws, except withhold from public review your for the sale provisions of the FLPMA. FOR FURTHER INFORMATION CONTACT: personal identifying information, we Christine Sloand, Realty Specialist, Until completion of the sale, the BLM will no longer accept land use cannot guarantee that we will be able to BLM, Hollister Field Office, 20 do so. Hamilton Court, Hollister, California applications affecting the identified 95023, or phone 831–630–5022. Persons public land, except applications for the Authority: 43 CFR 2711.1–2(a) and (c). who use a telecommunications device amendment of previously filed right-of- Tom Pogacnik, way applications or existing for the deaf (TDD) may call the Federal Deputy State Director, Natural Resources. authorizations to increase the term of Information Relay Service (FIRS) at 1– [FR Doc. 2011–19779 Filed 8–3–11; 8:45 am] 800–877–8339 to contact the above the grants in accordance with 43 CFR BILLING CODE 4310–40–P individual during normal business 2802.15 and 2886.15. The temporary hours. The FIRS is available 24 hours a segregation will terminate upon issuance of a patent, publication in the day, 7 days a week, to leave a message DEPARTMENT OF THE INTERIOR or question with the above individual. Federal Register of a termination of the You will receive a reply during normal segregation, or on August 5, 2013 unless Bureau of Reclamation business hours. extended by the BLM State Director in accordance with 43 CFR 2711.1–2(d) SUPPLEMENTARY INFORMATION: The Notice of Public Meeting for the Glen following public land is proposed for prior to the termination date. The land Canyon Dam Adaptive Management direct sale to Anthony Lombardo, the would not be sold until at least October Work Group Federal Advisory adjoining landowner, in accordance 3, 2011. Any conveyance document Committee with Sections 203 and 209 of the issued would contain the following AGENCY: Federal Land Policy and Management terms, conditions, and reservations: Bureau of Reclamation, 1. A reservation of a right-of-way to Act of 1976 (FLPMA), as amended (43 Interior. the United States for ditches and canals U.S.C. 1713 and 1719). ACTION: Notice. constructed by authority of the United Mount Diablo Meridian States under the Act of August 30, 1890 SUMMARY: The Glen Canyon Dam (43 U.S.C. 945); Adaptive Management Work Group T. 23 S., R. 12 E., 2. A condition that the conveyance be Sec. 18, NE1⁄4SW1⁄4. (AMWG) makes recommendations to the subject to all valid existing rights of Secretary of the Interior concerning The area described contains record; Glen Canyon Dam operations and other approximately 40 acres, more or less, in 3. An appropriate indemnification management actions to protect resources Monterey County. The public land was clause protecting the United States from downstream of Glen Canyon Dam, first identified as suitable for disposal in claims arising out of the patentee’s use, consistent with the Grand Canyon the 1984 BLM Hollister Resource occupancy, or operations on the Protection Act. The AMWG meets two Management Plan (RMP) and remains patented lands; and available for sale under the 2007 4. Additional terms and conditions to three times a year. Hollister RMP revision, and is not that the authorized officer deems DATES: The meeting will be held on needed for any other Federal purpose. appropriate. Detailed information Wednesday, August 24, 2011, from 9:30 The disposal is in the public interest. concerning the proposed land sale a.m. to approximately 5 p.m., and The purpose of the sale is to dispose of including the appraisal, planning and Thursday, August 25, 2011, from 8 a.m. public land which is difficult and environmental documents, and a to approximately 3 p.m.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00098 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47238 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

ADDRESSES: The meeting will be held at your entire comment—including your DEPARTMENT OF COMMERCE the Holiday Inn Hotel & Suites Phoenix personal identifying information—may Airport North, 1515 North 44th Street, be made publicly available at any time. International Trade Administration Phoenix, Arizona 85008. While you can ask us in your comment FOR FURTHER INFORMATION CONTACT: Glen to withhold your personal identifying [A–570–863] Knowles, Bureau of Reclamation, information from public review, we telephone (801) 524–3781; facsimile cannot guarantee that we will be able to Ninth Administrative Review of Honey (801) 524–3858; e-mail at do so. From the People’s Republic of China: [email protected]. Extension of Time Limit for the Dated: July 20, 2011. Preliminary Results SUPPLEMENTARY INFORMATION: The Glen Glen Knowles, Canyon Dam Adaptive Management Chief, Adaptive Management Group, AGENCY: Import Administration, Program (AMP) was implemented as a Environmental Resources Division, Upper result of the Record of Decision on the International Trade Administration, Colorado Regional Office, Salt Lake City, Department of Commerce. Operation of Glen Canyon Dam Final Utah. Environmental Impact Statement to [FR Doc. 2011–19759 Filed 8–3–11; 8:45 am] DATES: Effective Date: August 4, 2011. comply with consultation requirements of the Grand Canyon Protection Act BILLING CODE 4310–MN–P FOR FURTHER INFORMATION CONTACT: Josh (Pub. L. 102–575) of 1992. The AMP Startup, AD/CVD Operations, Office 9, includes a Federal advisory committee, Import Administration, International the AMWG, a technical work group Trade Administration, U.S. Department INTERNATIONAL TRADE (TWG), a Grand Canyon Monitoring and of Commerce, 14th Street and COMMISSION Research Center, and independent Constitution Avenue, NW., Washington review panels. The TWG is a DC 20230; telephone- (202) 482–5260. [Investigation No. 731–TA–856; Second subcommittee of the AMWG and Background provides technical advice and Review] recommendations to the AMWG. On January 28, 2011, the Department Ammonium Nitrate From Russia Agenda: The primary purpose of the of Commerce (‘‘Department’’) published meeting will be for the AMWG to Determination in the Federal Register a notice of approve the Fiscal Year 2012 budget initiation of an administrative review of and hydrograph, and receive updates on On the basis of the record 1 developed honey from the People’s Republic of the two environmental assessments in the subject five-year review, the China (‘‘PRC’’), covering the period being prepared by the Bureau of United States International Trade December 1, 2009 through November Reclamation, the Long Term Experiment Commission (Commission) determines, 30, 2010. See Initiation of Antidumping and Management Plan environmental pursuant to section 751(c) of the Tariff and Countervailing Duty Administrative impact statement, current basin Act of 1930 (19 U.S.C. § 1675(c)), that Reviews in Part, 76 FR 5137 (January 28, hydrology and Glen Canyon Dam revocation of the antidumping duty 2011). On February 16, 2011, after operational changes, and project order on ammonium nitrate from Russia receiving U.S. Customs and Border updates from the Grand Canyon would be likely to lead to continuation Protection (‘‘CBP’’) data, the Department Monitoring and Research Center. The or recurrence of material injury to an selected Dongtai Peak Honey Industry AMWG will also address other industry in the United States within a Co., Ltd. (‘‘Dongtai Peak’’) as the administrative and resource issues reasonably foreseeable time. respondent. pertaining to the AMP. To view a copy of the agenda and Background The Department sent its antidumping documents related to the above meeting, questionnaire to Dongtai Peak on please visit Reclamation’s Web site at The Commission instituted this February 25, 2011. On March 17, 2011, http://www.usbr.gov/uc/rm/amp/amwg/ review on March 1, 2011 (76 FR 11273) Dongtai Peak submitted its response to mtgs/11aug24.html. Time will be and determined on June 6, 2011 that it Section A of the Department’s allowed at the meeting for any would conduct an expedited review (76 questionnaire. On April 4, 2011, Dongtai individual or organization wishing to FR 34749, June 14, 2011). The Peak submitted its Section C & D make formal oral comments. To allow Commission transmitted its response. The Petitioners 1 provided for full consideration of information by determination in this review to the comments on Dongtai Peak’s March 17, the AMWG members, written notice Secretary of Commerce on July 29, 2011. 2011 Section A and April 4, 2011 must be provided to Glen Knowles, The views of the Commission are Sections C & D questionnaire responses Bureau of Reclamation, Upper Colorado contained in USITC Publication 4249 on April 29, 2011. On May 20, 2011, Regional Office, 125 South State Street, (August 2011), entitled Ammonium Dongtai Peak filed its responses to the Room 6107, Salt Lake City, Utah 84138; Nitrate from Russia: Investigation No. Department’s Sections A, C & D telephone 801–524–3781; facsimile 731–TA–856 (Second Review). Supplemental Questionnaires. On July 801–524–3858; e-mail at 5, 2011, Dongtai Peak submitted its [email protected] at least five (5) days By order of the Commission. response to the Department’s second Issued: July 29, 2011. prior to the meeting. Any written Supplemental Questionnaire. On July 5, comments received by the deadline will James R. Holbein, 2011, Dongtai Peak and petitioners be provided to the AMWG members. Secretary to the Commission. submitted surrogate value information. [FR Doc. 2011–19776 Filed 8–3–11; 8:45 am] The preliminary results of this Public Disclosure of Comments BILLING CODE 7020–02–P administrative review are currently due Before including your name, address, on September 2, 2011. phone number, e-mail address, or other 1 The record is defined in sec. 207.2(f) of the personal identifying information in your Commission’s Rules of Practice and Procedure (19 1 The American Honey Producers Association and comment, you should be aware that CFR § 207.2(f)). the Sioux Honey Association.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00099 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47239

Extension of Time Limits for the The Agreement provides that EPA meeting, in accordance with Section Preliminary Results will have an allowed Class 5D General 7003(d) of RCRA, 42 U.S.C. 6973(d). Unsecured Claim in the amount of The Department determines that Ronald G. Gluck, completion of the preliminary results of $652,440 under the Fifth Amended Joint Assistant Section Chief, Environmental this review within the statutory time Chapter 11 Plan with respect to the Swope Oil Site. Under the Agreement, Enforcement Section, Environment and period is not practicable. The Natural Resources Division. Department requires more time to gather EPA has agreed not to bring a civil and analyze surrogate value action or take administrative action [FR Doc. 2011–19732 Filed 8–3–11; 8:45 am] information, and to review against the Debtors pursuant to Sections BILLING CODE 4410–15–P questionnaire responses and issue 106 and 107(a) of CERCLA, 42 U.S.C. supplemental questionnaires. Therefore, 9606 and 9607(a), and Section 7003 of DEPARTMENT OF JUSTICE in accordance with section 751(a)(3)(A) the Resource Conservation and of the Tariff Act of 1930, as amended Recovery Act (‘‘RCRA’’), 42 U.S.C. 6973, Notice of Lodging of Consent Decree (‘‘Act’’), we are extending the time relating to the Swope Oil Site. Pursuant to the Clean Air Act period for issuing the preliminary For a period of 30 days from the date results of review by 120 days until of this publication, the Department of Notice is hereby given that on July 28, January 3, 2012.2 The final results Justice will receive comments relating to 2011, a proposed Consent Decree in continue to be due 120 days after the publication of the preliminary results. the Agreement. To be considered, United States v. Caterpillar Inc., Civ. A. This notice is published pursuant to comments must be received by the No. 11–1373 (BAH) was lodged with the section 751(a)(3)(A) of the Act and 19 Department of Justice by the date that is United States Court for the District of CFR 351.213(h)(2). 30 days from the date of this Colombia. In this action, Plaintiff the publication. Comments should be United States sought penalties and Dated: July 29, 2011. addressed to the Assistant Attorney injunctive relief for violations of the Christian Marsh, General, Environment and Natural Clean Air Act (‘‘CAA’’) by Caterpillar Deputy Assistant Secretary for Antidumping Resources Division, and either e-mailed Inc. and Countervailing Duty Operations. to [email protected] or Pursuant to the proposed Consent [FR Doc. 2011–19820 Filed 8–3–11; 8:45 am] mailed to P.O. Box 7611, U.S. BILLING CODE 3510–DS–P Decree, Defendants will pay to the Department of Justice, Washington, DC United States and State of California 20044, and should refer to In re (pursuant to a separate agreement) a Philadelphia Newspapers, LLC, et al., DEPARTMENT OF JUSTICE total of $2,550,000 in civil penalties and Case No. 09–11204 (SR) (Bankr. E.D. undertake injunctive measures designed Notice of Lodging of Settlement Pa.), D.J. Ref. No. 90–11–3–09822. A to correct past violations and prevent Agreement Under the Comprehensive copy of the comments should be sent to their reoccurrence. Environmental Response, Donald G. Frankel, Senior Counsel, The Department of Justice will receive Compensation, and Liability Act and Department of Justice, Environmental for a period of thirty (30) days from the Chapter 11 of the United States Enforcement Section, One Gateway Bankruptcy Code Center, Suite 616, Newton, MA 02458 or date of this publication comments e-mailed to [email protected]. relating to the Consent Decree. Notice is hereby given that on July 28, Comments should be addressed to the The Agreement may be examined at 2011, a proposed Settlement Agreement Assistant Attorney General, the Office of the United States Attorney, (‘‘Agreement’’) in In re Philadelphia Environment and Natural Resources Eastern District of Pennsylvania, 615 Newspapers, LLC, et al., Case No. 09– Division, and either e-mailed to Chestnut Street, Suite 1250, 11204 (SR), was lodged with the United [email protected] or Philadelphia, PA 19106 (contact States Bankruptcy Court for the Eastern mailed to P.O. Box 7611, U.S. Virginia Powell at 215–861–8200). District of Pennsylvania. The Agreement Department of Justice, Washington, D.C. During the public comment period, the was entered into by the United States, 20044–7611, and should refer to United Agreement may also be examined on the on behalf of the United States States v. Caterpillar Inc., Civ. A. No. 11– following Department of Justice Web Environmental Protection Agency 1373 (BAH) (District of Colombia, (‘‘EPA’’) and Philadelphia Newspapers, site, http://www.usdoj.gov/enrd/ Consent_Decrees.html. A copy of the Department of Justice Case Number 90– LLC and certain of its affiliates (the 5–2–1–09846. ‘‘Debtors’’). The Agreement relates to Agreement may also be obtained by mail liabilities of the Debtors under the from the Consent Decree Library, P.O. During the public comment period, Comprehensive Environmental Box 7611, U.S. Department of Justice, the Consent Decree may be examined on Response, Compensation, and Liability Washington, DC 20044–7611 or by the following Department of Justice Web Act of 1980, 42 U.S.C. 9601 et seq. faxing or e-mailing a request to Tonia site, http://www.usdoj.gov/enrd/ (‘‘CERCLA’’), at the Swope Oil Fleetwood ([email protected]), Consent_Decrees.html. A copy of the Superfund Site located in Pennshauken, fax no. (202) 514–0097, phone Consent Decree may also be obtained by New Jersey (the ‘‘Swope Oil Site’’). confirmation number (202) 514–1547. In mail from the Consent Decree Library, requesting a copy of the Agreement from P.O. Box 7611, U.S. Department of 2 120 days from September 2, 2011, is Saturday, the Consent Decree Library, please Justice, Washington, DC 20044–7611 or December 31, 2011. Monday, January 2, 2012, is enclose a check in the amount of $3.25 by faxing or e-mailing a request to Tonia designated as a federal holiday. Department practice dictates that where a deadline falls on a (25 cents per page reproduction cost) Fleetwood ([email protected]), weekend or federal holiday, the appropriate payable to the U.S. Treasury (if the fax no. (202) 514–0097, phone deadline is the next business day. See Notice of request is by fax or e-mail, forward a confirmation number (202) 514–1547. In Clarification: Application of ‘‘Next Business Day’’ check to the Consent Decree library at requesting a copy from the Consent Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 the address stated above). Commenters Decree Library, please enclose a check FR 24533 (May 10, 2005). may request an opportunity for a public in the amount of $7 (25 cents per page

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00100 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47240 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

reproduction cost) payable to the U.S. under employee benefit law and this notice in the Federal Register. In Treasury. intervenes informally on their behalf order to help ensure appropriate with the plan sponsor in order to assist consideration, comments should Karen Dworkin, participants in obtaining the health and reference OMB ICR Reference Number Assistant Section Chief. retirement benefits that may have been 201106–1210–001. The OMB is [FR Doc. 2011–19716 Filed 8–3–11; 8:45 am] inappropriately denied. Such informal particularly interested in comments BILLING CODE 4410–15–P intervention can avert the necessity for that: a formal investigation or a civil action. • Evaluate whether the proposed The EBSA maintains a toll-free collection of information is necessary DEPARTMENT OF LABOR telephone number through which for the proper performance of the inquirers can reach Benefits Advisors in functions of the agency, including Office of the Secretary ten Regional Offices. The EBSA has also whether the information will have Agency Information Collection made a request for assistance form practical utility; • Evaluate the accuracy of the Activities; Submission for OMB available on its Web site for those Review; Comment Request; Request wishing to obtain assistance in this agency’s estimate of the burden of the for Assistance From Department of manner. To date, the Web form has proposed collection of information, Labor, Employee Benefits Security included only basic identifying including the validity of the Administration information necessary for reaching the methodology and assumptions used; inquirer. A Federal agency does not • Enhance the quality, utility, and ACTION: Notice. need OMB approval to request such clarity of the information to be basic contact information. See 5 CFR collected; and SUMMARY: The Department of Labor 1320.3(h)(1). Contact with the EBSA is • Minimize the burden of the (DOL) is submitting the proposed voluntary. collection of information on those who Employee Benefits Security The proposed information collection are to respond, including through the Administration (EBSA) sponsored is a revised Web intake form. The use of appropriate automated, information collection request (ICR) number of required fields—first name, electronic, mechanical, or other titled, ‘‘Request for Assistance From last name, street address, city, zip code, technological collection techniques or Department of Labor, EBSA,’’ to the and telephone number—does not differ other forms of information technology, Office of Management and Budget from the current form. Through its e.g., permitting electronic submission of (OMB) for review and approval for use experience with electronic requests for responses. in accordance with the Paperwork review under the American Recovery Agency: Employee Benefits Security Reduction Act (PRA) of 1995 (Pub. L. and Reinvestment Act of 2009, Administration (EBSA). 104–13, 44 U.S.C. chapter 35). approved under OMB Control Number Title of Collection: Request for DATES: Submit comments on or before 1210–0135, however, the EBSA has Assistance from Department of Labor, September 6, 2011. found that obtaining certain additional EBSA. ADDRESSES: A copy of this ICR with information can significantly expedite OMB ICR Reference Number: 201106– applicable supporting documentation; the handling of requests for assistance, 1210–001. including a description of the likely resulting in both improved service to Affected Public: Individuals or respondents, proposed frequency of customers and enhanced capacity to Households. Total Estimated Number of response, and estimated total burden handle inquiry volume. This Respondents: 30,000. may be obtained from the RegInfo.gov information includes the plan type, Total Estimated Number of Web site, http://www.reginfo.gov/ broad categories of problem type, Responses: 30,000. public/do/PRAMain, on the day contact information for responsible parties, and a mechanism for the Total Estimated Annual Burden following publication of this notice or Hours: 15,000. by contacting Michel Smyth by inquirer to attach relevant documents. This proposed information collection Total Estimated Annual Other Costs telephone at 202–693–4129 (this is not Burden: $3,100. a toll-free number) or sending an e-mail is subject to the PRA. A Federal agency to [email protected]. generally cannot conduct or sponsor a Dated: July 29, 2011. Submit comments about this request collection of information, and the public Michel Smyth, to the Office of Information and is generally not required to respond to Departmental Clearance Officer. an information collection, unless it is Regulatory Affairs, Attn: OMB Desk [FR Doc. 2011–19756 Filed 8–3–11; 8:45 am] approved by the OMB under the PRA Officer for the Department of Labor, BILLING CODE 4510–29–P Employee Benefits Security and displays a currently valid OMB Administration (EBSA), Office of Control Number. In addition, Management and Budget, Room 10235, notwithstanding any other provisions of DEPARTMENT OF LABOR Washington, DC 20503, Telephone: law, no person shall generally be subject to penalty for failing to comply with a 202–395–6929/Fax: 202–395–6881 Office of Disability Employment Policy collection of information if the (these are not toll-free numbers), e-mail: collection of information does not ‘‘Add Us In’’ Initiative [email protected]. display a valid OMB control number. FOR FURTHER INFORMATION CONTACT AGENCY: : See 5 CFR 1320.5(a) and 1320.6. For Office of Disability Michel Smyth by telephone at 202–693– additional information, see the related Employment Policy, Department of 4129 (this is not a toll-free number) or notice published in the Federal Register Labor. by e-mail at Announcement Type: New Notice of _ _ on April 28, 2011 (76 FR 23844). DOL PRA [email protected]. Interested parties are encouraged to Availability of Funds and Solicitation SUPPLEMENTARY INFORMATION: The EBSA send comments to the OMB, Office of for Grant Applications (SGA) for assists employee benefit plan Information and Regulatory Affairs at Cooperative Agreements. The full participants in understanding their the address shown in the ADDRESSES announcement is posted on http:// rights, responsibilities, and benefits section within 30 days of publication of www.grants.gov.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00101 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47241

Funding Opportunity Number: SGA (including American Indians; Alaska ACTION: Notice. 11–02. Natives, Native Hawaiians, and other SUMMARY: The Employment and DATES: Key Dates: The closing date for Native Pacific Islanders (including Training Administration (ETA) of the receipt of applications is September 6, American Samoan Natives)); Lesbian, United States. Department of Labor 2011 via http://www.grants.gov. Gay, Bisexual, Transgender (LGBT) individuals; women; veterans; and other (Department) is publishing, for public Funding Opportunity Description similar groups. information, notice of the issuance and The U.S. Department of Labor (‘‘DOL’’ Historically excluded communities availability of TEGL 33–10 entitled, or ‘‘Department’’), Office of Disability are areas or groups that face some or all Special Procedures: Labor Certification Employment Policy (ODEP) announces of the following economic challenges: Process for Itinerant Commercial the availability of approximately $1.65 blight, underinvestment, low per capita Beekeeping Employers in the H–2A million to be awarded to consortia to income, high poverty, high Program, signed on June 14, 2011, by fund three cooperative agreements unemployment, discrimination in Jane Oates, Assistant Secretary for ranging from $500,000 to $550,000. The housing, credit or the labor market, Employment and Training goal of the Add Us In initiative is to environmental or natural resource Administration. identify and develop strategies to degradation, and mass layoffs. A FOR FURTHER INFORMATION CONTACT: increase the capacity of small targeted business is a small for-profit William L. Carlson, PhD, Administrator, businesses and communities, including enterprise such as a sole proprietorship, Office of Foreign Labor Certification, underrepresented and historically partnership, corporation, or joint ETA, U.S. Department of Labor, 200 excluded communities, to employ youth venture of any kind, physically located Constitution Avenue, NW., Room C– and adults with disabilities. Add Us In in the United States or its trust 4312, Washington, DC 20210; aims to achieve these goals through: (1) territories that is at least 51 percent Telephone (202) 693–3010 (this is not a The development and evaluation of owned, operated and controlled on a toll-free number). Individuals with replicable models, strategies and daily basis by a United States citizen (or hearing or speech impairments may policies 1 that would ensure that youth citizens) who are members of access the telephone number above via and adults with disabilities from underrepresented and historically TTY by calling the toll-free Federal communities that include excluded communities.2 Information Relay Service at 1–800– underrepresented and historically The full Solicitation for Grant 877–8339. Applications is posted on http:// excluded communities have access to a SUPPLEMENTARY INFORMATION: broader range of employment and www.grants.gov under U.S. Department mentoring opportunities; (2) the of Labor/ODEP. Applications submitted Special Procedures: Labor Certification development of active and sustainable through http://www.grants.gov or hard Process for Itinerant Commercial partnerships between targeted copy will be accepted. If you need to Beekeeping Employers in the H–2A businesses, diversity-serving speak to a person concerning these Program organizations, youth-serving grants, you may telephone Cassandra 1. Purpose. To establish special organizations and disability-serving Mitchell at 202–693–4570 (not a toll- procedures for itinerant commercial organizations; and (3) the building of a free number). If you have issues beekeeper employers who apply to the national and local network of experts regarding access to the http:// Department to obtain labor certifications skilled in meeting the employment www.grants.gov Web site, you may to hire temporary agricultural foreign needs of individuals with disabilities telephone the Contact Center Phone at workers to perform work in the United and the hiring needs of targeted 1–800–518–4726. States (U.S.) business owners. The goal of Add Us In Signed in Washington, DC, this 1st day of 2. References. will be accomplished through the August 2011. • 20 CFR part 655, subpart B; competitive funding of consortia tasked Cassandra R. Mitchell, • 20 CFR part 653, subparts B and F; to design, implement and evaluate Grant Officer. • 20 CFR part 654, subpart E. innovative systems models that support [FR Doc. 2011–19823 Filed 8–3–11; 8:45 am] 3. Background. In 1986, Congress competitive employment opportunities BILLING CODE 4510–FT–P passed the Immigration Reform and for people with disabilities within Control Act of 1986 (IRCA) which targeted businesses. amended the Immigration and For the purpose of this solicitation, DEPARTMENT OF LABOR Nationality Act (INA), 8 U.S.C. 1101 et the inclusion of underrepresented and seq. and established the H–2A Program. historically excluded communities, Employment and Training In 1987, the Department issued an defined below, is a specific focus. The Administration Interim Final Rule, promulgating the make-up of these communities may vary first H–2A regulations (the 1987 Training and Employment Guidance in different regions, and can include: regulations) in accordance with IRCA. (TEGL) Letter No. 33–10: Special ethnic and racial minorities including 54 FR 20496, Jun. 1, 1987. The 1987 Procedures: Labor Certification African American, Asian American regulations provided for the Process for Itinerant Commercial (including Asian Americans of West administration of the H–2A Program by Beekeeping Employers in the H–2A Asian decent, e.g., India, and Asian ETA Regional Administrators, and Program Americans of East Asian decent, e.g., instituted procedures to offset the Japan and Korea); Latino or Hispanic AGENCY: Employment and Training adverse effects of immigration on U.S. American; Federally recognized Tribes Administration, Labor. workers. Additionally, the 1987 and Native American communities regulations also established special 2 For the purposes of this solicitation, the procedures for certain occupations, as 1 Replicable models, strategies and policies are definition of a ‘‘small’’ (with regard to the size of long as they did not deviate from the methods of connecting people with disabilities to the business) is as determined by the U.S. Small employment and might include, but are not limited Business Administration (SBA) regulations Secretary’s statutory responsibility to to, mentoring, entrepreneurial activities, addressing business size standards (13 CFR part determine U.S. worker availability and internships, training and leadership opportunities. 121). the adverse effect of foreign workers on

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00102 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47242 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

the wages and working conditions of successful crop production. submitted for itinerant commercial U.S. workers. Accordingly, the Department is beekeeping occupations must comply The 1987 regulations remained in establishing special procedures enabling with the requirements of 20 CFR parts effect, largely unchanged, until the itinerant commercial beekeeper 655, subpart B, 653, subparts B and F, Department promulgated new H–2A employers to use the H–2A Program and 654. regulations on December 18, 2008. 73 while moving their beekeeping activities I. Prefiling Procedures FR 77110, Dec. 18, 2008 (the 2008 Final among farms and orchards located in Rule). The 2008 Final Rule multiple areas of intended employment A. Job Orders and SWA Review (20 implemented an attestation-based throughout the U.S. CFR 655.121). An employer engaged in application process and made several 4. Special Procedures. Attachment A commercial beekeeping activities is substantive changes to the program, but outlines special procedures for allowed to submit a single Agricultural retained the special procedures concept. applications submitted by itinerant and Food Processing Clearance Order, After the Department determined that commercial beekeeping employers ETA Form 790 (job order), Office of the 2008 Final Rule did not meet policy under the H–2A Program. Unless Management and Budget (OMB) 1205– objectives of the H–2A Program, the otherwise specified in Attachment A, 0134, and all appropriate attachments Department commenced another applications submitted by itinerant covering a planned itinerary of work in rulemaking process culminating in the commercial beekeeper employers must multiple States. If the job opportunity is publication of new H–2A regulations on comply with the requirements for H–2A located in more than one State, either February 12, 2010. 75 FR 6884, Feb. 12, applications contained at 20 CFR part within the same area of intended 2010 (the 2010 Final Rule). Section 20 655, subpart B. Similarly, unless employment or multiple areas of CFR 655.102 provides the Administrator otherwise specified, job orders intended employment, the employer of the Office of Foreign Labor submitted for these occupations must must submit the job order and all Certification (OFLC) with authority to comply with the requirements of 20 CFR attachments (including a detailed establish, continue, revise or revoke parts 655, subpart B, 653 subparts B and itinerary) to the SWA having special procedures for processing F, and 654. jurisdiction over the anticipated certain H–2A applications, as long as 5. Effective Date. This guidance worksite(s) where the work is expected those procedures do not deviate from applies to all temporary labor to begin. The employer must submit the statutory requirements under the INA. certification applications for job order no more than 75 calendar days After receiving a request from the occupations in itinerant commercial and no less than 60 calendar days before American Beekeeping Federation and in beekeeping in the H–2A Program with a the employer’s first date of need. consideration of the unique start date of need on or after October 1, Unless otherwise specified in these characteristics of itinerant commercial 2011. special procedures, the job order beekeeping operations, the Department 6. Action. The Chicago National submitted to the SWA must satisfy the is exercising its authority to establish Processing Center (Chicago NPC) requirements for agricultural clearance certain special procedures for Program Director and State Workforce orders outlined in 20 CFR part 653, processing H–2A applications for Agency (SWA) Administrators are subpart F and the requirements set forth itinerant commercial beekeeping directed to immediately provide copies in 20 CFR 655.122. The SWA will occupations. The Department recognizes of these special procedures to all staff review the job order for regulatory that an industry-wide standard exists involved in processing H–2A labor compliance and will work with the among commercial beekeeping certification applications from itinerant employer to address any noted employers to transport honey bee commercial beekeeping employers. deficiencies. Upon its clearance of the colonies to farms and orchards 7. Inquiries. Questions from SWA staff job order, the SWA must promptly place throughout the U.S. Itinerant should be directed to the Chicago NPC. the job order in intrastate clearance and commercial beekeepers typically Questions from the Chicago NPC staff commence recruitment of U.S. workers. transport their honey bee colonies north should be directed to the OFLC National The job order shall remain active until in the summer and south in the winter, Office. 50 percent of the work contract period stopping as needed to pollinate crops in 8. Attachment. has elapsed for all SWAs in possession bloom. For both commercial beekeepers Attachment A: Special Procedures: of the employer’s job order (including and farmers, the need to move bees from Labor Certification Process for Itinerant those receiving in interstate clearance one State to another throughout the Commercial Beekeeping Employers under 20 CFR 655.150), unless growing season has intensified as the under the H–2A. See full text below. otherwise advised by the Chicago NPC. number of bees and beekeepers decline B. Contents of Job Offers (20 CFR Attachment A: Special Procedures: and agricultural methods evolve. 655.122). Unless otherwise specified in Labor Certification Process for Large farms and orchards require a this section, the content of job offers Applications in the Itinerant large concentration of healthy, active submitted to the SWAs and the Chicago Commercial Beekeeping Industry pollinators during specific periods NPC for itinerant beekeeping activities Under the H–2A Program when crops are in flower. In addition, must comply with all of the beekeepers have determined that they This document outlines special requirements of 20 CFR parts 655, can maintain stronger, healthier honey procedures for applications submitted subpart B, 653, subparts B and F, and bee colonies by transporting their by employers in the itinerant 654. colonies to warmer, southern States commercial beekeeping industry under 1. Job qualifications and during the cold months. Providing the H–2A Program. Unless otherwise requirements. flexibility in the H–2A Program for specified in this attachment, Experience. Due to the unique nature itinerant commercial beekeepers to applications submitted for itinerant of the work to be performed, the job move honey bee colonies to various commercial beekeeping occupations offer may specify that applicants parts of the U.S. will enable this must comply with the requirements for possess up to 3 months of experience as industry to maintain strong, healthy processing H–2A applications outlined a beekeeper and may require honey bee colonies and provide the in 20 CFR part 655, subpart B. Similarly, reference(s) to verify the applicant’s pollination services which are vital to unless otherwise specified, job orders experience performing such activities.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00103 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47243

Applicants must provide the name, proof of renewed coverage a signed and procedures for H–2ALCs contained at 20 address, and telephone number of any dated statement or letter showing proof CFR 655.132(a). Specifically, an previous employer used as a reference. of intent to renew and maintain employer engaged in commercial The appropriateness of any other coverage for the dates of need. The beekeeping activities is authorized to experience requirements must be employer must maintain evidence that file an Application for Temporary substantiated by the employer and its workers’ compensation was renewed, Employment Certification covering one approved by the Chicago NPC. in the event the Department requests it. or more areas of intended employment Completion of Itinerary. An itinerant 3. Housing. The employer must state based on a planned itinerary. An beekeeping employer may require in its in its job offer that sufficient housing itinerant beekeeping employer who job offer that an applicant for the job will be provided at no cost to H–2A desires to employ one or more must be available to work for the entire workers and any workers in nonimmigrant workers on an itinerary itinerary. An applicant referred to the corresponding employment who are not to provide beekeeping services to fixed- employer after the labor certification has reasonably able to return to their site farmers/ranchers is, by definition, been granted, but before 50 percent of residence within the same day. All an H–2ALC. Therefore, the itinerant the work contract period for the entire employer-provided housing must beekeeping labor contractor must itinerary has elapsed, must be available comply with requirements set out in 20 identify itself as the employer of record and willing to join the employer at CFR 655.122(d) for the entire period of on the ETA Form 9142 by completing whatever place the employer is located occupancy. For each anticipated Section C and marking item C.17 as ‘‘H– at the time and remain with the worksite covering the itinerary, the job 2A Labor Contractor,’’ and submitting, employer for the duration of the offer must disclose the type, location, in addition to the documentation beekeeping itinerary. An employer’s and capacity of all housing that will be required under 20 CFR 655.130, all rejection of an applicant who is unable provided to the workers. Prior to the other required documentation or unwilling to accept such a issuance of the Temporary Labor supporting an H–2ALC application. requirement is considered a lawful job- Certification, the CO must receive Signed in Washington, DC this 29th day of related rejection. evidence that all housing complies with Other Requirements. Due to the July 2011. the applicable local, State, or Federal Jane Oates, unique nature of the work to be housing standards. performed, the job offer may specify that Assistant Secretary for Employment and 4. Rates of pay. For each State listed Training Administration. applicants may not have bee-, pollen- or in an approved itinerary, the employer honey-related allergies and must have or must state in its job offer and agree to [FR Doc. 2011–19751 Filed 8–3–11; 8:45 am] be able to obtain within 30 days of pay a wage that is at least the highest BILLING CODE 4510–FP–P employment, a valid U.S. driver’s of the Adverse Effect Wage Rate, the license. Any other requirements must be prevailing hourly wage, the agreed-upon DEPARTMENT OF LABOR normal and accepted for the occupation, collective bargaining wage, or the and the SWA and the Chicago NPC have Federal or State minimum wage, in Employment and Training the authority to request supporting effect at the time the work is performed. Administration documentation substantiating the II. Application for Temporary appropriateness of the duties prior to Training and Employment Guidance Employment Certification Filing accepting the job order. (TEGL) Letter No. 15–06, Change 1, Procedures 2. Workers’ compensation. The Special Procedures: Labor employer must provide workers’ A. Application Filing Requirements Certification Process for Occupations compensation insurance coverage, as (20 CFR 655.130). An individual Involved in the Open Range described in 20 CFR 655.122(e), in all employer that desires to apply for Production of Livestock Under the H– States where commercial migratory temporary employment certification for 2A Program beekeeping work will be performed. one or more nonimmigrant workers Prior to the issuance of the Temporary must file the following documentation AGENCY: Employment and Training Labor Certification, the employer must with the Chicago NPC no less than 45 Administration, Labor. provide the Certifying Officer (CO) with calendar days before the employer’s ACTION: Notice. proof of workers’ compensation date of need: SUMMARY: coverage, including the name of the • ETA Form 9142 (OMB 1205–0466), The Employment and insurance carrier, the insurance policy Application for Temporary Employment Training Administration (ETA) of the number, and proof of insurance for the Certification, and Appendix A.2; United States Department of Labor dates of need, or if appropriate, proof of • Copy of the ETA Form 790 and all (Department) is publishing, for public State law coverage for each State where attachments previously submitted to the information, notice of the issuance and the commercial migratory beekeeping SWA; availability of TEGL 15–06, Change 1 work will be performed. In the event • A planned itinerary listing the entitled, Special Procedures: Labor that the current coverage will expire names and contact information of all Certification Process for Occupations before the end of the certified work farmers/ranchers and identifying, with Involved in the Open Range Production contract period or the insurance as much geographic specificity as of Livestock under the H–2A Program, statement does not include all of the possible and for each farmer/rancher, all signed on June 14, 2011, by Jane Oates, information required under the of the physical locations and estimated Assistant Secretary for Employment and regulations at 20 CFR 655.122(e), the start and end dates of need where work Training Administration. employer will be required to will be performed; and FOR FURTHER INFORMATION CONTACT: supplement its proof of workers’ • All other required documentation William L. Carlson, PhD, Administrator, compensation for that State before a supporting the application. Office of Foreign Labor Certification, final determination is due. Where the B. H–2A Labor Contractor (H–2ALC) ETA, U.S. Department of Labor, 200 employer’s coverage will expire before Filing Requirements (20 CFR 655.132). Constitution Avenue, NW., Room C– the end of the certified work contract The Department is granting a special 4312, Washington, DC 20210; period, the employer may submit as variance to the application filing Telephone (202) 693–3010 (this is not a

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00104 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47244 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

toll-free number). Individuals with Department promulgated new H–2A Program with a start date of need on or hearing or speech impairments may regulations on December 18, 2008. 73 after October 1, 2011. access the telephone number above via FR 77110, Dec. 18, 2008 (the 2008 Final 6. Action. The Chicago National TTY by calling the toll-free Federal Rule). The 2008 Final Rule Processing Center (Chicago NPC) Information Relay Service at 1–800– implemented an attestation-based Program Director and State Workforce 877–8339. application process and made several Agency (SWA) Administrators are SUPPLEMENTARY INFORMATION: substantive changes to the program, but directed to immediately provide copies retained the special procedures concept. of these special procedures to all staff Special Procedures: Labor Certification After the Department determined that involved in processing H–2A labor Process for Occupations Involved in the the 2008 Final Rule did not meet H–2A certification applications from Open Range Production of Livestock program policy objectives, the employers in the open range production Under the H–2A Program Department commenced another of livestock occupations. 1. Purpose. To transmit special rulemaking process culminating in the 7. Inquiries. Questions from SWA staff procedures, updated to reflect publication of new H–2A regulations on should be directed to the Chicago NPC. regulatory and organizational changes in February 12, 2010. 75 FR 6884, Feb. 12, Questions from the Chicago NPC staff the H–2A Program, for employers who 2010 (the 2010 Final Rule). The Final should be directed to the OFLC National apply to the Department of Labor Rule implements changes that affect Office. (Department) to obtain labor special procedures for the occupations 8. Attachment. certifications to hire temporary involved in the open range production Attachment A—Special Procedures: agricultural foreign workers in of livestock. Section 20 CFR 655.102 Labor Certification Process for occupations involved in the open range provides the Office of Foreign Labor Occupations Involved in the Open production of livestock in the United Certification (OFLC) Administrator with Range Production of Livestock Under States (U.S.). the authority to establish, continue, the H–2A Program. See full text below. 2. References. revise or revoke special procedures for Attachment B—Standards for Mobile • 20 CFR part 655, subpart B; processing of certain H–2A applications, Housing Applicable to Occupations • 20 CFR part 653, subparts B and F; Involved in the Open Range Production • including those for occupations 20 CFR part 654, subpart E; involved in the open range production of Livestock. See full text below. • Training and Employment of livestock, as long as those procedures Guidance Letter (TEGL) No. 15–06, Attachment A: Special Procedures: do not deviate from the statutory Special Procedures for Processing H–2A Labor Certification Process for requirements under the INA. Applications for Occupations Involved Applications Involved in the Open This TEGL updates the special in the Open Range Production of Range Production of Livestock in the procedures previously established for Livestock; H–2A Program • occupations involved in the open range ETA Handbook No. 385. This document outlines special 3. Background. In 1986, Congress production of livestock to reflect organizational changes, in addition to procedures for applications submitted passed the Immigration Reform and by employers involved in the open Control Act of 1986 (IRCA) which new regulatory and policy objectives. It replaces previous guidance range production of livestock under the amended the Immigration and H–2A Program. Unless otherwise Nationality Act (INA), 8 U.S.C. 1101, et disseminated under TEGL No. 15–06, Special Procedures for Processing H–2A specified in this attachment, seq., and established the H–2A program. applications submitted for open range In 1987, the Department issued an Applications for Occupations Involved in the Open Range Production of livestock occupations must comply with Interim Final Rule, promulgating the the requirements for processing H–2A first H–2A regulations (the 1987 Livestock. 4. Special Procedures. Attachment A applications outlined in 20 CFR part regulations) in accordance with IRCA. 655, subpart B. Similarly, unless 54 FR 20496, Jun. 1, 1987. The 1987 outlines special procedures for labor certification applications submitted by otherwise specified, job orders regulations provided for the submitted for open range livestock administration of the H–2A program by employers for occupations involved in the open range production of livestock occupations must comply with the the ETA Regional Administrators, and requirements of 20 CFR parts 655, instituted procedures to offset the under the H–2A Program. Attachment B outlines standards for mobile housing subpart B, 653, subparts B and F, and adverse effects of immigration on U.S. 654. workers. The 1987 regulations also applicable to occupations involved in established special procedures for the open range production of livestock I. Prefiling Procedures certain occupations, as long as they did under the H–2A Program. Unless otherwise specified in Attachments A A. Offered Wage Rate (20 CFR not deviate from the Secretary’s 655.120(a)) statutory responsibility to determine and B, applications submitted for these U.S. worker availability and the adverse occupations must comply with the The Department is continuing a effect of foreign workers on the wages requirements for processing H–2A special variance to the offered wage rate and working conditions of U.S. workers. applications contained at 20 CFR part requirements contained at 20 CFR Due to the unique characteristics of 655, subpart B. Similarly, unless 655.120(a). Because occupations the open range production of livestock, otherwise specified, job orders involving the open range production of the Department established special submitted for these occupations must livestock are characterized by other than procedures for the processing of H–2A comply with the requirements of 20 CFR a reasonably regular workday or applications for certification of parts 655, subpart B, 653, subparts B workweek, an employer must continue temporary employment in those and F, and 654. to offer, advertise in the course of its occupations. These special procedures 5. Effective Date. This guidance recruitment, and pay the monthly, were contained most recently in the applies to all temporary labor weekly, or semi-monthly prevailing TEGL No. 15–06. certification applications for wage established by the OFLC The 1987 regulations remained in occupations in the open range Administrator for each State listed in an effect, largely unchanged, until the production of livestock in the H–2A approved itinerary. In establishing the

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00105 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47245

offered wage rate for the range and no less than 60 calendar days before authority to request supporting production of livestock, the Department the employer’s first date of need. documentation substantiating the uses findings from prevailing wage Unless otherwise specified in these appropriateness of the duties prior to surveys conducted by SWAs in special procedures, the job order accepting the job order. Additionally, accordance with the procedures in the submitted to the SWA must satisfy the the SWA or Chicago NPC may request ETA Handbook No. 385. SWAs are requirements for agricultural clearance modifications to the job duties if required to transmit official wage rate orders outlined in 20 CFR part 653, additional information, such as climatic findings covering the range production subpart F and the requirements set forth conditions and/or the size of herd, of livestock to the OFLC between May in 20 CFR 655.122. The SWA will necessitates the use of pack and saddle 1st and June 1st of each calendar year. review the job order for regulatory horses to reach the range, in order to Following a review of the SWA wage compliance and will work with the fully apprise U.S. workers of the nature rate findings, the OFLC will publish the employer to address any noted of the work to be performed. new agricultural prevailing wage rates deficiencies. Upon its clearance of the Experience. Due to the unique nature in a Federal Register notice with an job order, the SWA must promptly place of the work to be performed, the job immediate effective date. the job order in intrastate clearance and offer may specify that applicants SWA wage rate findings will continue commence recruitment of U.S. workers. possess up to 6 months of experience in to establish monthly, weekly, or semi- The job order shall remain active until similar occupations involving the range monthly prevailing wages for a 50 percent of the work contract period tending or production of livestock statewide or other geographical area in has elapsed for all SWAs in possession covering multiple seasons and may a manner that is consistent with the of the employer’s job order (including require reference(s) to verify experience wage setting procedures applied to those receiving it in interstate clearance in performing these activities. sheepherder occupations in the Western under 20 CFR 655.150), unless Applicants must provide the name, States. In circumstances where a SWA otherwise advised by the Chicago NPC. address, and telephone number of any previous employer being used as a is unable to produce a wage rate finding C. Contents of Job Offers (20 CFR reference. The appropriateness of any for an occupation, due to an inadequate 655.122) other experience requirements must be sample size or another valid reason, the Unless otherwise specified in this wage setting procedures allow the OFLC substantiated by the employer and section, the content of job offers approved by the Chicago NPC. to continue to issue a prevailing wage submitted to the SWAs and the Chicago Hours. The description of anticipated rate for that State based on the wage rate NPC for occupations involved in the hours of work must show ‘‘on call for findings submitted by an adjoining or open range production of livestock must up to 24 hours per day, 7 days per proximate SWA for the same or similar comply with all of the requirements of week’’ in the job order. If an application agricultural activities. 20 CFR parts 655, subpart B, 653, filed for an open range livestock worker If the OFLC cannot establish a subparts B and F, and 654. does not include the requirements of prevailing wage rate by using 1. Job duties, qualifications and being on call 24 hours per day, 7 days comparable survey data from an requirements. per week, the Chicago NPC may not adjoining or proximate SWA, the OFLC Job duties. Based on the current process the employer’s application will give consideration to aggregating industry practice, the SWAs may rely on under the special procedures survey data for the range production of the following standard description of enumerated in this TEGL, and must livestock activities across States to the job duties for a job opportunity in instead require compliance with all the create regional prevailing wage rates. the open range livestock production requirements of the H–2A regulations When regional prevailing wages are industry: outlined in 20 CFR part 655, subpart B. considered, the OFLC may use the U.S. Perform any combination of the 2. Housing. The employer must state Department of Agriculture’s (USDA) following tasks to attend to livestock on in its job order that sufficient housing production or farm resource regions or the open range: feeds and waters will be provided at no cost to H–2A other groupings of States used to livestock; herds livestock to pasture for workers and any workers in conduct the USDA Farm Labor Survey. grazing; examines animals to detect corresponding employment who are not B. Job Orders and SWA Review (20 CFR diseases and injuries; assists with the reasonably able to return to their 655.121) vaccination of livestock by herding into residence within the same day. Except corral and/or stall or manually for long-established standards for An employer engaged in the range restraining animal on the range; applies mobile housing in Attachment B, all production of livestock is allowed to medications to cuts and bruises; sprays employer-provided housing must submit a single Agricultural and Food livestock with insecticide; assists with comply with requirements set out in 20 Processing Clearance Order, ETA Form castration of livestock; clips identifying CFR 655.122(d) for the entire period of 790 (job order), Office of Management notches on or brands animals; may occupancy. An employer whose and Budget (OMB) 1205–0134, and all assist with irrigating, planting, itinerary requires mobile housing may appropriate attachments covering a cultivating, and harvesting hay. Workers provide mobile housing to its workers. planned itinerary of work in multiple must be able to ride and handle horses 3. Workers’ compensation. The States. If the job opportunity is located in a manner to assure the safety of the employer must provide workers’ in more than one State, either within the worker, co-workers, and livestock. Must compensation insurance coverage as same area of intended employment or be able to find and maintain bearings to described in 20 CFR 655.122(e) in all multiple areas of intended employment, grazing areas. Must be willing and able States where open range work will be the employer must submit the job order to occasionally live and work performed. Prior to the issuance of the and all attachments (including a independently or in small groups of Temporary Labor Certification, the detailed itinerary) to the SWA having workers in isolated areas for extended employer must provide the Certifying jurisdiction over the anticipated periods of time. Officer (CO) with proof of workers’ worksite(s) where the work is expected Any additional job duties must be compensation coverage, including the to begin. The employer must submit the normal and accepted for the occupation, name of the insurance carrier, the job order no more than 75 calendar days and the SWA and Chicago NPC have the insurance policy number, and proof of

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00106 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47246 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

insurance for the dates of need, or if arrangement is reflected in the job offer determining the adequacy of employer- appropriate, proof of State law coverage and work contract, if any. Employers provided mobile housing for use on a for each State where the open range must pay wages when due. range. However, any other type of work will be performed. In the event housing, used by an employer to house II. Application for Temporary that the current coverage will expire workers engaged in open range Employment Certification Filing before the end of the certified work production of livestock activities, must Procedures contract period or the insurance meet the standards applicable to such statement does not include all of the Application Filing Requirements (20 housing under 20 CFR 655.122(d). regulatory information required under CFR 655.130). An individual employer Both mobile housing and fixed-site the regulations at 20 CFR 655.122(e), the that desires to apply for temporary farm or ranch housing may be self- employer will be required to employment certification for one or certified by an employer. Employers supplement its proof of workers’ more nonimmigrant workers must file must submit a signed statement to the compensation for that State before a the following documentation with the SWA and the Chicago NPC with the final determination is due. Where the Chicago NPC no less than 45 calendar application for labor certification employer’s coverage will expire before days before the employer’s date of need: assuring that the housing is available, the end of the certified work contract • ETA Form 9142 (OMB 1205–0466), sufficient to accommodate the number period, the employer may submit as Application for Temporary Employment of workers being requested, and meets proof of renewed coverage a signed and Certification, and Appendix A.2; all applicable standards. dated statement or letter showing proof • Copy of the ETA Form 790 and all SWAs must develop and implement a of intent to renew and maintain attachments previously submitted to the schedule which ensures that each coverage for the dates of need. The SWA; employer’s self-certified housing is employer must maintain evidence that • A planned itinerary listing the inspected no less frequently than at its workers’ compensation was renewed, names and contact information of all least once every 3 years. These in the event the Department requests it. farmers/ranchers and identifying, with inspections may be performed either 4. Employer-provided items. Due to as much geographic specificity as before or after a request is submitted for the remote and unique nature of the possible and for each farmer/rancher, all nonimmigrant livestock workers on the work to be performed, the employer of the physical locations and estimated open range. Before referring a worker must also specify in the job order and start and end dates of need where work who is entitled to such housing, the provide at no cost to workers an will be performed; and SWA office must ensure that the effective means of communicating with • All other required documentation housing is available and has been persons capable of responding to the supporting the application. inspected in accordance with the worker’s needs in case of an emergency. inspection schedule. If the SWA These means are necessary to perform Attachment B: Standards for Mobile Housing Applicable to Occupations determines that an employer’s housing the work and can include, but are not cannot be inspected in accordance with limited to, satellite phones, cell phones, Involved in the Open Range Production of Livestock the inspection schedule or, when it is wireless devices, radio transmitters, or inspected, does not meet all the other types of electronic communication I. Procedures applicable standards, the Chicago NPC systems. Occupations involving the open range may deny the H–2A application in full 5. Earnings records and statements. or in part or require additional The employer must keep accurate and production of livestock generally require workers to live in remote inspections in order to satisfy the adequate records with respect to the regulatory requirement. workers’ earnings and furnish to the housing of a mobile nature, rather than worker on or before each payday a ‘‘a fixed-site farm, ranch or similar II. Mobile Housing Standards establishment.’’ This type of housing is statement of earnings. Because the An employer may use a mobile unit, typically referred to as mobile housing. unique circumstances of employing camper, or other similar mobile vehicle For purposes of these special range livestock workers (i.e., on call for housing workers that meets the procedures, mobile housing is any 24/7 in remote locations) prevent the following standards: monitoring and recording of hours housing that is capable of being moved actually worked each day as well as the from one area on the open range to A. Housing Site time the worker began and ended each another. The employer must provide Mobile housing sites shall be well workday, the employer is exempt from housing at no cost to the H–2A workers drained and free from depressions in reporting on these two specific and those workers in corresponding which water may stagnate. requirements at 20 CFR 655.122(j) and employment who are not reasonably (k). However, all other regulatory able to return to their residence within B. Water Supply requirements related to earnings records the same day. 1. An adequate and convenient and statements apply. Where housing for work performed on supply of water that meets standards of 6. Frequency of pay. Consistent with the range is provided, the regulations at the State health authority shall be 20 CFR 655.122(m), the employer must 20 CFR 655.122(d)(2) require that such provided. The amount of water state in the job offer the frequency with housing meet standards of the DOL provided must be enough for normal which the worker will be paid, which Occupational Safety and Health drinking, cooking, and bathing needs of must be at least twice monthly or Administration (OSHA). In the absence each worker; and according to the prevailing practice in of such standards, range housing for 2. Individual drinking cups shall be the area of intended employment, sheepherders and other workers provided. whichever is more frequent. Due to the engaged in the range production of unique circumstances of employing livestock must meet guidelines issued C. Excreta and Liquid Waste Disposal range livestock workers, the employer by OFLC. Due to the fact that OSHA 1. Facilities shall be provided and may, upon mutual agreement with the standards currently do not cover mobile maintained for effective disposal of worker, pay the worker once per month housing, Section II of this attachment excreta and liquid waste in accordance as long as the monthly payment establishes the standards for with requirements of the State health

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00107 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47247

authority or involved Federal agency; concentration of gases. Portable 2. Provision shall be made for and electrical heaters may be used, and if collecting or burying refuse, which 2. If pits are used for disposal by approved by Underwriters’ Laboratory, includes garbage, at least twice a week burying of excreta and liquid waste, kerosene heaters may be used according or more often if necessary. Refuse they shall be kept fly-tight when not to manufacturer’s instructions. If a solid disposal shall conform to Federal, State, filled in completely after each use. The or liquid fuel stove is used in a room or local law, whichever applies. maintenance of disposal pits must be in with wooden or other combustible accordance with State and local health flooring, there shall be a concrete slab, K. Insect and Rodent Control and sanitation requirements. insulated metal sheet, or other fireproof material on the floor under each stove, Appropriate materials, including D. Housing Structure extending at least 18 inches beyond the sprays, must be provided to aid housing 1. Housing shall be structurally perimeter of the base of the stove; occupants in combating insects, rodents sound, in good repair, in sanitary 3. Any wall or ceiling within 18 and other vermin. condition and shall provide protection inches of a solid or liquid fuel stove or L. Sleeping Facilities to occupants against the elements; stove pipe shall be made of fireproof 2. Housing, other than tents, shall material. A vented metal collar shall be A separate sleeping unit shall be have flooring constructed of rigid installed around a stovepipe or vent provided for each person, except in a materials easy to clean and so located as passing through a wall, ceiling, floor or family arrangement. Such a unit shall to prevent ground and surface water roof; and include a comfortable bed, cot, or bunk from entering; 4. When a heating system has with a clean mattress. When filing an 3. Each housing unit shall have at automatic controls, the controls shall be application for certification and only least one window which can be opened of the type which cuts off the fuel where it is demonstrated to the or skylight opening directly to the supply when the flame fails or is outdoors; and interrupted or whenever a Certifying Officer that is impractical to 4. Tents may be used where terrain predetermined safe temperature or set up a second sleeping unit, the and/or land regulations do not permit pressure is exceeded. employer may request a variance from use of other more substantial mobile the separate sleeping unit requirement housing which provides facilities and F. Lighting to allow for a second worker to protection closer in conformance with 1. In areas where it is not feasible to temporarily join the open range the Department’s intent. provide electrical service to mobile operation. The second worker may be housing, including tents, lanterns shall temporarily housed in the same sleeping E. Heating be provided (kerosene wick lights meet unit for no more than three consecutive 1. Where the climate in which the the definition of lantern); and days and the employer must supply a housing will be used is such that the 2. Lanterns, where used, shall be sleeping bag or bed roll free of charge. safety and health of a worker requires provided in a minimum ratio of one per heated living quarters, all such quarters occupant of each unit, including tents. M. Fire, Safety and First Aid shall have properly installed operable G. Bathing, Laundry and Hand Washing heating equipment which supplies 1. All units in which people sleep or adequate heat. In considering whether Movable bathing, laundry and hand eat shall be constructed and maintained the heating equipment is acceptable, the washing facilities shall be provided according to applicable State or local Chicago NPC shall first determine if the when it is not feasible to provide hot fire and safety law; housing will be located in a National and cold water under pressure. 2. No flammable or volatile liquid or Forest Wilderness Section as specified H. Food Storage materials shall be stored in or next to in the Wilderness Act (16 U.S.C. 1131– rooms used for living purposes, except 1136). Such a location has a bearing on When mechanical refrigeration of food is not feasible, the worker must be for those needed for current household the type of equipment practicable, and provided with another means of keeping use; whether any heavy equipment can be food fresh and preventing spoilage, such used. For example, the Wilderness Act 3. Mobile housing units for range use as a butane or propane gas refrigerator. (16 U.S.C. 1133(c)) restricts certain must have a second means of escape. Other proven methods of safeguarding motorized or mechanical transport on One of the two required means of escape fresh foods, such as salting, are certain roads in wilderness areas. The must be a window which can be easily acceptable. U.S. Forest Service has regulations for opened, a hutch, or other provision. It this at 36 CFR part 293. Aside from the I. Cooking and Eating Facilities must be demonstrated that the custom combine worker would be able to crawl above, other factors to consider in 1. When workers or their families are evaluating heating equipment are the permitted or required to cook in their through the second exit without severity of the weather and the types of individual unit, a space shall be difficulty; protective clothing and bedding made provided with adequate lighting and 4. Tents are not required to have a available to the worker. If the climate in ventilation; and second means of escape, except when which the housing will be used is mild 2. Wall surfaces next to all food large tents with walls of rigid material and not reasonably expected to drop preparation and cooking areas shall be are used. A heater may be used in a tent below 50 degrees Fahrenheit of nonabsorbent, easy to clean material. if the heater is approved by a testing continuously for 24 hours, no separate Wall surfaces next to cooking areas shall service, such as Underwriters’ heating equipment is required if proper be of fire-resistant material. Laboratory, and if the tent is fireproof; protective clothing and bedding are and made available; J. Garbage and Other Refuse 2. Any stoves or other sources of heat 1. Durable, fly-tight, clean containers 5. Adequate fire extinguishers in good using combustible fuel shall be installed shall be provided to each housing unit, working condition and first aid kits and vented in such a manner as to including tents, for storing garbage and shall be provided in the mobile housing. prevent fire hazards and a dangerous other refuse; and

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00108 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47248 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Signed in Washington, DC this 29 day of • 20 CFR part 655, subpart B; publication of new H–2A regulations on July 2011. • 20 CFR part 653, subparts B and F; February 12, 2010. 75 FR 6884, Feb. 12, Jane Oates, • 20 CFR part 654, subpart E; 2010 (the 2010 Final Rule). The 2010 • Assistant Secretary for Employment and Training and Employment Final Rule implements changes that Training Administration. Guidance Letter (TEGL) No. 16–06, affect special procedures for multi-state [FR Doc. 2011–19754 Filed 8–3–11; 8:45 am] Special Procedures for Processing H–2A custom combine owners and operators. BILLING CODE 4510–FP–P Applications for Multi-State Custom Section 20 CFR 655.102 provides the Combine Owners/Operators; • Administrator of the Office of Foreign Field Memorandum (FM) No. 5–04, Labor Certification (OFLC) with DEPARTMENT OF LABOR Special Procedures: Labor Certification authority to establish, continue, revise for Processing H–2A Applications for or revoke special procedures for Employment and Training Multi-State Custom Combine Owners/ processing of certain H–2A applications, Administration Operators; including those for custom combine • ETA Handbook No. 385. harvesting crews, as long as those Training and Employment Guidance 3. Background. In 1986, Congress procedures do not deviate from (TEGL) Letter No. 16–06, Change 1, passed the Immigration Reform and statutory requirements under the INA. Special Procedures: Labor Control Act of 1986 (IRCA) which Certification Process for Multi-State amended the Immigration and This TEGL updates the special Custom Combine Owners/Operators Nationality Act (INA), 8 U.S.C. 1101 et procedures previously established for Under the H–2A Program seq., and established the H–2A Program. applications for multi-state custom In 1987, the Department issued an combine owners and operators to reflect AGENCY: Employment and Training Interim Final Rule, promulgating the organizational changes, in addition to Administration, Labor. first H–2A regulations (the 1987 new regulatory and policy objectives. It ACTION: Notice. regulations) in accordance with IRCA. rescinds and replaces previous guidance 54 FR 20496, Jun. 1, 1987. The 1987 disseminated under TEGL No. 16–06, SUMMARY: The Employment and regulations provided for the Special Procedures for Processing H–2A Training Administration (ETA) of the administration of the H–2A Program by Applications for Multi-State Custom United States Department of Labor ETA Regional Administrators, and Combine Owners/Operators. (Department) is publishing, for public instituted procedures to offset the 4. Special Procedures. Attachment A information, notice of the issuance and adverse effects of immigration on U.S. outlines special procedures for availability of TEGL 16–06, Change 1, workers. The 1987 regulations also applications submitted by multi-state entitled, Special Procedures: Labor established special procedures for custom combine owners/operators Certification Process for Multi-State certain occupations, as long as they did under the H–2A Program. Attachment B Custom Combine Owners/Operators not deviate from the Secretary’s outlines standards for housing under the H–2A Program, signed on statutory responsibility to determine applicable to multi-state custom June 14, 2011, by Jane Oates, Assistant U.S. worker availability and the adverse combine owners/operators under the H– Secretary for Employment and Training effect of foreign workers on the wages 2A Program. Unless otherwise specified Administration. and working conditions of U.S. workers. in Attachments A and B, applications FOR FURTHER INFORMATION CONTACT: The significance of the custom submitted for these occupations must William L. Carlson, PhD, Administrator, combine activity on the U.S. economy comply with the requirements for Office of Foreign Labor Certification, resulted in the promulgation of H–2A processing H–2A applications contained ETA, U.S. Department of Labor, 200 special procedures that were initially at 20 CFR part 655, subpart B. Similarly, Constitution Avenue, NW., Room C– published in the Federal Register on unless otherwise specified, job orders 4312, Washington, DC 20210; April 12, 1989 (54 FR 14703, Apr. 12, submitted for these occupations must Telephone (202) 693–3010 (this is not a 1989). Upon a request from the U.S. comply with the requirements of 20 CFR toll-free number). Individuals with Custom Harvesters, Inc., the special parts 655, subpart B, 653, subparts B hearing or speech impairments may procedures for custom combine owners/ and F, and 654. access the telephone number above via operators were revised and transmitted 5. Effective Date. This guidance TTY by calling the toll-free Federal by FM No. 5–04 on January 28, 2004, applies to all temporary labor Information Relay Service at 1–800– which was directed to all ETA Regional certification applications for 877–8339. Administrators. The processing of H–2A occupations in custom combine SUPPLEMENTARY INFORMATION: applications at that time was conducted operations in the H–2A Program with a by ETA Regional Offices. FM No. 5–04 start date of need on or after October 1, Special Procedures: Labor Certification was rescinded by TEGL 16–06. 2011. Process for Multi-State Custom The 1987 regulations remained in 6. Action. Chicago National Combine Owners/Operators Under the effect, largely unchanged, until the Processing Center (Chicago NPC) H–2A Program Department promulgated new H–2A Program Director and State Workforce 1. Purpose. To transmit special regulations on December 18, 2008. 73 Agency (SWA) Administrators are procedures, updated to reflect FR 77110, Dec. 18, 2008 (the 2008 Final directed to immediately provide copies regulatory and organization changes in Rule). The 2008 Final Rule of these special procedures to all staff the H–2A Program, for multi-state implemented an attestation-based involved in processing H–2A custom combine owners/operators application process and made several applications from multi-state custom (including Canadian) who apply to the substantive changes to the program, but combine owners/operators. Department of Labor (Department) to retained the special procedures concept. 7. Inquiries. Questions from SWA staff obtain labor certifications to hire After the Department determined that should be directed to the Chicago NPC. temporary agricultural foreign workers the 2008 Final Rule did not meet H–2A Questions from the Chicago NPC staff as crew members to perform work in the Program policy objectives, the should be directed to the OFLC National United States (U.S.). Department commenced another Office. 2. References. rulemaking process culminating in the 8. Attachments.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00109 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47249

Attachment A—Special Procedures: in more than one State, either within the crew is located at the time and remain Labor Certification Process for the same area of intended employment or with the crew for the duration of the Multi-State Custom Combine Owners/ multiple areas of intended employment, custom combine itinerary. Operators under the H–2A Program. See the employer must submit the job order 2. Housing. The employer must state full text below. and all attachments (including a in its job offer that sufficient housing Attachment B—Standards for Housing detailed itinerary) to the SWA having will be provided at no cost to H–2A Applicable to Multi-State Custom jurisdiction over the anticipated workers and any workers in Combine Owners/Operators. See full worksite(s) where the work is expected corresponding employment who are not text below. to begin. The employer must submit the reasonably able to return to their Attachment A: Special Procedures: job order no more than 75 calendar days residence within the same day. Except Labor Certification Process for and no less than 60 calendar days before for long-established standards for Applications for Multi-State Custom the employer’s first date of need. mobile housing in Attachment B, all Unless otherwise specified in these Combine Owners/Operators Under the employer-provided housing must special procedures, the job order H–2A Program comply with requirements set out in 20 submitted to the SWA must satisfy the CFR 655.122(d) for the entire period of This document outlines special requirements for agricultural clearance occupancy. A custom combine procedures for applications submitted orders outlined in 20 CFR part 653, employer whose itinerary requires by multi-state custom combine owners/ subpart F and the requirements set forth mobile housing may provide mobile operators under the H–2A Program. in 20 CFR 655.122. The SWA will housing to its workers. Unless otherwise specified in this review the job order for regulatory attachment, applications submitted for 3. Workers’ compensation. The compliance and will work with the employer must provide workers’ custom combine occupations must employer to address any noted comply with the requirements for compensation insurance coverage as deficiencies. Upon its clearance of the described in 20 CFR 655.122(e) in all processing H–2A applications outlined job order, the SWA must promptly place in 20 CFR part 655, subpart B. Similarly, States where custom combine work will the job order in intrastate clearance and be performed. Prior to the issuance of unless otherwise specified, job orders commence recruitment of U.S. workers. the Temporary Labor Certification, the submitted for custom combine The job order shall remain active until employer must provide the Certifying occupations must comply with the 50 percent of the work contract period requirements of 20 CFR parts 655, has elapsed for all SWAs in possession Officer (CO) with proof of workers’ subpart B, 653, subparts B and F, and of the employer’s job order (including compensation coverage, including the 654. those receiving it in interstate clearance name of the insurance carrier, the insurance policy number, and proof of I. Prefiling Procedures under 20 CFR 655.150), unless otherwise advised by the Chicago NPC. insurance for the dates of need, or, if A. Offered Wage Rate (20 CFR C. Contents of Job Offers (20 CFR appropriate, proof of State law coverage 655.120(a)). An employer must offer, 655.122). Unless otherwise specified in for each State where the custom advertise in the course of its this section, the content of job offers combine work will be performed. In the recruitment, and pay a wage that is the submitted to the SWAs and the Chicago event that the current coverage will highest of the Adverse Effect Wage Rate, NPC for custom combine activities must expire before the end of the certified the prevailing hourly wage, the agreed- comply with all of the requirements of work contract period or the insurance upon collective bargaining wage, or the 20 CFR parts 655, subpart B, 653, statement does not include all of the Federal or State minimum wage, in subparts B and F, and 654. information required under the effect at the time custom combine work 1. Job qualifications and regulations at 20 CFR 655.122(e), the is performed and for each State listed in requirements. employer will be required to an approved itinerary. In establishing Experience. Due to the unique nature supplement its proof of workers’ agricultural prevailing wages, including of the work to be performed, the job compensation for that State before a those for custom combine activities, the offer may require that applicants final determination is due. Where the Department continues to use findings possess up to 6 months of experience in employer’s coverage will expire before from prevailing wage surveys conducted custom combining activity and may the end of the certified work contract by SWAs in accordance with the require reference(s) to verify experience period, the employer may submit as procedures in the ETA Handbook No. in performing such activities. proof of renewed coverage a signed and 385. SWAs are required to transmit Applicants must provide the name, dated statement or letter showing proof wage rate findings covering custom address, and telephone number of any of intent to renew and maintain combine activities to the OFLC between previous employer being used as a coverage for the dates of need. The May 1st and June 1st of each calendar reference. The appropriateness of any employer must maintain evidence that year. Following a review of the SWA other experience requirements must be its workers’ compensation was renewed, wage rate findings, the OFLC will substantiated by the employer and in the event the Department requests it. publish the new agricultural prevailing approved by the Chicago NPC. 4. Employer-provided items. Due to wage rates in a Federal Register notice Completion of Itinerary. An employer the remote and unique nature of the with an immediate effective date. engaged in multi-state custom combine work to be performed, the employer B. Job Orders and SWA Review (20 activity may require in its job offer that must also specify in the job offer and CFR 655.121). An employer engaged in an applicant for the job must be provide at no cost to workers an custom combine activities is allowed to available to work for the remainder of effective means of communicating with submit a single Agricultural and Food the entire itinerary. An applicant persons capable of responding to the Processing Clearance Order, ETA Form referred to the employer after the labor worker’s needs in case of an emergency. 790 (job order), Office of Management certification has been granted, but These means are necessary to perform and Budget (OMB) 1205–0134, and all before 50 percent of the work contract the work and can include, but are not appropriate attachments covering a period for the entire itinerary has limited to, satellite phones, cell phones, planned itinerary of work in multiple elapsed, must be available and willing wireless devices, radio transmitters, or States. If the job opportunity is located to join the crew at whatever place the other types of electronic communication

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00110 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47250 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

systems to assist workers in performing Seasonal Agricultural Worker Protection occupancy. Any charges for rental or assigned duties. Act (MSPA) (29 U.S.C. 1801, public accommodations must be paid 1803(a)(30)(E) et seq.). directly by the employer to the owner or II. Application for Temporary operator of the housing. Employment Certification Filing III. Post-Acceptance Requirements Multi-state custom combine owners/ Procedures Billing (20 CFR 655.163(a)). When operators from Canada who indicate A. Application Filing Requirements Canadian custom combine owners/ that lodging for their crew members will (20 CFR 655.130). An individual operators are billed for approved labor be mobile units or other similar vehicles employer that desires to apply for certifications, the billing notice will must submit a report of inspection of temporary employment certification for instruct the employer to pay by check or such vehicles conducted by a one or more nonimmigrant workers money order (including International representative of the Canadian must file the following documentation Money Order), and require that the government with their H–2A with the Chicago NPC no less than 45 check or money order be payable in U.S. applications. A new inspection report is calendar days before the employer’s currency. required annually for each vehicle. I date of need: • ETA Form 9142 (OMB 1205–0466), Attachment B: Standards for Housing II. Mobile Housing Standards Applicable to Multi-State Custom Application for Temporary Employment An employer may use a mobile unit, Combine Owners/Operators Certification, and Appendix A.2; camper, or other similar mobile vehicle • Copy of the ETA Form 790 and all I. Procedures for housing workers that meets the attachments previously submitted to the following standards: SWA; Multi-state custom combine • A planned itinerary listing the occupations generally require workers A. Housing Site to live in housing of a mobile nature, a names and contact information of all Mobile housing sites shall be well fixed-site farm, ranch or similar farmers/ranchers and identifying, with drained and free from depressions in establishment or rental or public as much geographic specificity as which water may stagnate. possible and for each farmer/rancher, all accommodations. For purposes of these of the physical locations and estimated special procedures, mobile housing is B. Water Supply start and end dates of need where work any housing that is capable of being 1. An adequate and convenient will be performed; and moved from one area to another. The supply of water that meets standards of • All other required documentation employer must provide housing at no the State health authority shall be supporting the application. cost to the H–2A workers and those provided. The amount of water Because of delays in mail delivery workers in corresponding employment provided must be enough for normal from Canada, Canadian employers are who are not reasonably able to return to drinking, cooking, and bathing needs of encouraged to use express overnight their residence within the same day. each worker; and mail service to expedite the delivery Except for long-standing standards for 2. Individual drinking cups shall be and receipt of communications between mobile housing which are listed under provided. employers and the Chicago NPC, so as II below, all employer-provided housing to ensure meeting regulatory deadlines. must comply with 20 CFR 655.122(d). C. Excreta and Liquid Waste Disposal B. H–2A Labor Contractor (H–2ALC) Multi-state custom combine owner/ 1. Facilities shall be provided and Filing Requirements (20 CFR 655.132). operators must provide an annual maintained for effective disposal of The Department is granting a special housing inspection report for all excreta and liquid waste in accordance variance to the application filing employer-owned housing (mobile or with requirements of the State health procedures for H–2ALCs contained at 20 fixed-site housing) or other similar authority or involved Federal agency; CFR 655.132(a). Specifically, an establishment used for sleeping and employer engaged in multi-state custom purposes. Where the required 2. If pits are used for disposal by combine activities is authorized to file inspection and approval report does not burying of excreta and liquid waste, an Application for Temporary accompany the application, the they shall be kept fly-tight when not Employment Certification covering one employer may submit the report before filled in completely after each use. The or more areas of intended employment the determination due date. However, maintenance of disposal pits must be in based on a definite itinerary. An the Chicago NPC will not certify accordance with State and local health employer who desires to employ one or applications unless the CO receives the and sanitation requirements. more nonimmigrant workers on an required inspection report from the itinerary to provide custom combine employer. The employer may amend the D. Housing Structure services to fixed-site farmers/ranchers application with a written statement of 1. Housing shall be structurally is, by definition, an H–2ALC. Therefore, assurance that motels, instead of mobile sound, in good repair, in sanitary the custom combine labor contractor units, or other similar vehicles will be condition and shall provide protection must identify itself as the employer of used to lodge crew members until the to occupants against the elements; record on the ETA Form 9142 by required SWA inspection report is 2. Housing, other than tents, shall completing Section C and marking item submitted. When lodging will be in a have flooring constructed of rigid C.17 as ‘‘H–2A Labor Contractor,’’ and motel or other public accommodation, materials easy to clean and so located as submitting, in addition to the the H–2A application must identify the to prevent ground and surface water documentation required under 20 CFR rental, public accommodation, or other from entering; 655.130, all other required substantially similar class of habitation 3. Each housing unit shall have at documentation supporting an H–2ALC to be provided for the contract period, least one window which can be opened application. The only special variance and the employer must submit a written or skylight opening directly to the to the requirements at 20 CFR statement of assurance to the Chicago outdoors; and 655.132(b) is the recognized exemption NPC that such accommodations will 4. Tents may be used where terrain of custom combine activities from the comply with established standards for and/or land regulations do not permit requirements of the Migrant and such housing during the entire period of use of other more substantial mobile

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00111 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47251

housing which provides facilities and F. Lighting temporarily join the custom combine protection closer in conformance with 1. In areas where it is not feasible to operation. The second worker may be the Department’s intent. provide electrical service to mobile temporarily housed in the same sleeping unit for no more than three consecutive E. Heating housing, including tents, lanterns shall be provided (kerosene wick lights meet days and the employer must supply a 1. Where the climate in which the the definition of lantern); and sleeping bag or bed roll free of charge. housing will be used is such that the 2. Lanterns, where used, shall be M. Fire, Safety and First Aid safety and health of a worker requires provided in a minimum ratio of one per heated living quarters, all such quarters occupant of each unit, including tents. 1. All units in which people sleep or shall have properly installed operable eat shall be constructed and maintained heating equipment which supplies G. Bathing, Laundry and Hand Washing according to applicable State or local adequate heat. In considering whether Movable bathing, laundry and hand fire and safety law; the heating equipment is acceptable, the washing facilities shall be provided 2. No flammable or volatile liquid or Chicago NPC shall first determine if the when it is not feasible to provide hot materials shall be stored in or next to housing will be located in a National and cold water under pressure. rooms used for living purposes, except Forest Wilderness Section as specified for those needed for current household in the Wilderness Act (16 U.S.C. 1131– H. Food Storage use; 1136). Such a location has a bearing on When mechanical refrigeration of 3. Mobile housing units for range use the type of equipment practicable, and food is not feasible, the worker must be must have a second means of escape. whether any heavy equipment can be provided with another means of keeping One of the two required means of escape used. For example, the Wilderness Act food fresh and preventing spoilage, such must be a window which can be easily (16 U.S.C. 1133(c)) restricts certain as a butane or propane gas refrigerator. opened, a hutch, or other provision. It motorized or mechanical transport on Other proven methods of safeguarding must be demonstrated that the custom certain roads in wilderness areas. The fresh foods, such as salting, are combine worker would be able to crawl U.S. Forest Service has regulations for acceptable. through the second exit without this at 36 CFR part 293. Aside from the difficulty; I. Cooking and Eating Facilities above, other factors to consider in 4. Tents are not required to have a evaluating heating equipment are the 1. When workers or their families are second means of escape, except when severity of the weather and the types of permitted or required to cook in their large tents with walls of rigid material protective clothing and bedding made individual unit, a space shall be are used. A heater may be used in a tent available to the worker. If the climate in provided with adequate lighting and if the heater is approved by a testing which the housing will be used is mild ventilation; and service, such as Underwriters’ and not reasonably expected to drop 2. Wall surfaces next to all food Laboratory, and if the tent is fireproof; below 50 degrees Fahrenheit preparation and cooking areas shall be and continuously for 24 hours, no separate of nonabsorbent, easy to clean material. 5. Adequate fire extinguishers in good heating equipment is required if proper Wall surfaces next to cooking areas shall working condition and first aid kits protective clothing and bedding are be of fire-resistant material. shall be provided in the mobile housing. made available; J. Garbage and Other Refuse Signed in Washington, DC, this 29th day of 2. Any stoves or other sources of heat July 2011. 1. Durable, fly-tight, clean containers using combustible fuel shall be installed shall be provided to each housing unit, Jane Oates, and vented in such a manner as to including tents, for storing garbage and Assistant Secretary for Employment and prevent fire hazards and a dangerous other refuse; and Training Administration. concentration of gases. Portable 2. Provision shall be made for [FR Doc. 2011–19752 Filed 8–3–11; 8:45 am] electrical heaters may be used, and if collecting or burying refuse, which BILLING CODE 4510–FP–P approved by Underwriters’ Laboratory, includes garbage, at least twice a week kerosene heaters may be used according or more often if necessary. Refuse to manufacturer’s instructions. If a solid disposal shall conform to Federal, State, DEPARTMENT OF LABOR or liquid fuel stove is used in a room or local law, whichever applies. with wooden or other combustible Employment and Training flooring, there shall be a concrete slab, K. Insect and Rodent Control Administration insulated metal sheet, or other fireproof Appropriate materials, including Training and Employment Guidance material on the floor under each stove, sprays, must be provided to aid housing extending at least 18 inches beyond the (TEGL) Letter No. 17–06, Change 1, occupants in combating insects, rodents Special Procedures: Labor perimeter of the base of the stove; and other vermin. 3. Any wall or ceiling within 18 Certification Process for Employers in inches of a solid or liquid fuel stove or L. Sleeping Facilities the Itinerant Animal Shearing Industry Under the H–2A Program stove pipe shall be made of fireproof A separate sleeping unit shall be material. A vented metal collar shall be provided for each person, except in a AGENCY: Employment and Training installed around a stovepipe or vent family arrangement. Such a unit shall Administration, Labor. passing through a wall, ceiling, floor or include a comfortable bed, cot, or bunk ACTION: Notice. roof; and with a clean mattress. When filing an 4. When a heating system has application for certification and only SUMMARY: The Employment and automatic controls, the controls shall be where it is demonstrated to the Training Administration (ETA) of the of the type which cuts off the fuel Certifying Officer that it is impractical United States Department of Labor supply when the flame fails or is to set up a second sleeping unit, the (Department) is publishing, for public interrupted or whenever a employer may request a variance from information, notice of the issuance and predetermined safe temperature or the separate sleeping unit requirement availability of TEGL 17–06, Change 1 pressure is exceeded. to allow for a second worker to entitled, Special Procedures: Labor

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00112 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47252 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Certification Process for Employers in not deviate from the Secretary’s processing H–2A applications contained the Itinerant Animal Shearing Industry statutory responsibility to determine at 20 CFR part 655, subpart B. Similarly, under the H–2A Program, signed on U.S. worker availability and the adverse unless otherwise specified, job orders June 14, 2011, by Jane Oates, Assistant effect of foreign workers on the wages submitted for these occupations must Secretary for Employment and Training and working conditions of U.S. workers. comply with the requirements of 20 CFR Administration. Due to the unique nature of the parts 655, subpart B, 653, subparts B FOR FURTHER INFORMATION CONTACT: itinerant animal shearing industry, the and F, and 654. William L. Carlson, PhD, Administrator, Department established special 5. Effective Date. This guidance Office of Foreign Labor Certification, procedures for the processing of H–2A applies to all temporary labor ETA, U.S. Department of Labor, 200 applications for labor certification of certification applications for Constitution Avenue, NW., Room C– temporary agricultural foreign workers. occupations in itinerant animal shearing 4312, Washington, DC 20210; These special procedures were in the H–2A Program with a start date Telephone (202) 693–3010 (this is not a contained most recently in the TEGL of need on or after October 1, 2011. toll-free number). Individuals with No. 17–06. 6. Action. The Chicago National The 1987 regulations remained in hearing or speech impairments may Processing Center (Chicago NPC) effect, largely unchanged, until the access the telephone number above via Program Director and State Workforce Department promulgated new H–2A TTY by calling the toll-free Federal Agency (SWA) Administrators are regulations on December 18, 2008. 73 Information Relay Service at 1–800– directed to immediately provide copies FR 77110, Dec. 18, 2008 (the 2008 Final 877–8339. of these special procedures to all staff Rule). The 2008 Final Rule involved in processing H–2A labor SUPPLEMENTARY INFORMATION: implemented an attestation-based certification applications from Special Procedures: Labor Certification application process and made several employers in the itinerant animal Process for Employers in the Itinerant substantive changes to the program, but shearing industry. The revised special Animal Shearing Industry Under the retained the special procedures concept. procedures will apply to all employer H–2A Program After the Department determined that applications with a start date of need on the 2008 Final Rule did not meet H–2A 1. Purpose. To transmit special or after October 1, 2011. Program policy objectives, the 7. Inquiries. Questions from the procedures, as updated to reflect Department commenced another Public should be directed to the local regulatory and administrative changes rulemaking process culminating in the SWA. Questions from SWA staff should in the H–2A Program, for employers publication of new H–2A regulations on be directed to the Chicago NPC. who apply to the Department of Labor February 12, 2010. 75 FR 6884, Feb. 12, Questions from the Chicago NPC staff (Department) to obtain labor 2010 (the 2010 Final Rule). The 2010 should be directed to the OFLC National certifications to hire temporary Final Rule implements changes that Office. agricultural foreign workers in affect special procedures for the 8. Attachment. occupations involving an itinerary for occupations involved in the itinerant Attachment A: Special Procedures: the shearing of sheep, goats, alpacas, or animal shearing industry. Section 20 Labor Certification Process for other animals requiring shearing in the CFR 655.102 provides the Office of Applications in the Itinerant Animal United States (U.S.). Foreign Labor Certification (OFLC) Shearing Industry under the H–2A 2. References. Administrator with the authority to • Program. See full text below. 20 CFR part 655, subpart B; establish, continue, revise or revoke Attachment B: Standards for Mobile • 20 CFR part 653, subparts B and F; special procedures for processing of Housing Applicable to Occupations in • 20 CFR part 654, subpart E; certain H–2A applications, including the Itinerant Animal Shearing Industry. • Paperwork Reduction Act of 1995 those for itinerant animal shearing See full text below. (Pub. L. 104–13); industry, as long as those procedures do • Training and Employment not deviate from the statutory Attachment A: Special Procedures: Guidance Letter (TEGL) No. 17–06, requirements under the INA. Labor Certification Process for Special Procedures for Employers in the This TEGL updates the special Applications in the Itinerant Animal Itinerant Animal Shearing Industry procedures previously established for Shearing Industry Under the H–2A Under the H–2A Program; occupations involved in itinerant Program • ETA Handbook No. 385. animal shearing to reflect organizational This document outlines special 3. Background. In 1986, Congress changes, in addition to new regulatory procedures for applications submitted passed the Immigration Reform and and policy objectives. It rescinds and by employers in the itinerant animal Control Act of 1986 (IRCA) which replaces previous guidance shearing industry under the H–2A amended the Immigration and disseminated under TEGL 17–06, Program. Unless otherwise specified in Nationality Act (INA), 8 U.S.C. 1101 et Special Procedures for Employers in the this attachment, applications submitted seq., and established the H–2A Program. Itinerant Animal Shearing Industry for shearing occupations must comply In 1987 the Department issued an Under the H–2A Program. with the requirements for processing H– Interim Final Rule, promulgating the 4. Special Procedures. Attachment A 2A applications outlined in 20 CFR part first H–2A regulations (the 1987 outlines special procedures for 655, subpart B. Similarly, unless regulations) in accordance with IRCA. applications submitted by employers in otherwise specified, job orders 54 FR 20496, Jun. 1, 1987. The 1987 the itinerant animal shearing industry submitted for shearing occupations regulations provided for the under the H–2A Program. Attachment B must comply with the requirements of administration of the H–2A Program by outlines standards for mobile housing 20 CFR parts 655, subpart B, 653, ETA Regional Administrators, and applicable to employers in the itinerant subparts B and F, and 654. instituted procedures to offset the animal shearing industry under the H– adverse effects of immigration on U.S. 2A Program. Unless otherwise specified I. Prefiling Procedures workers. The 1987 regulations also in Attachments A and B, applications A. Offered Wage Rate (20 CFR established special procedures for submitted for these occupations must 655.120(a)). An employer must offer, certain occupations, as long as they did comply with the requirements for advertise in the course of its

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00113 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47253

recruitment, and pay a wage that is the and no less than 60 calendar days before work contract period for the entire highest of the Adverse Effect Wage Rate the employer’s first date of need. itinerary has elapsed, must be available (AEWR), the prevailing hourly or piece Unless otherwise specified in these and willing to join the crew at whatever rate, the agreed-upon collective special procedures, the job order place the crew is located at the time and bargaining wage, or the Federal or State submitted to the SWA must satisfy the remain with the crew for the duration of minimum wage, in effect at the time the requirements for agricultural clearance the animal shearing itinerary. itinerant animal shearing services are orders outlined in 20 CFR part 653, 2. Housing. The employer must state performed and for each State listed in subpart F and the requirements set forth in its job offer that sufficient housing an approved itinerary. In establishing in 20 CFR 655.122. The SWA will will be provided at no cost to H–2A agricultural prevailing piece rates for review the job order for regulatory workers and any workers in itinerant animal shearing activities, the compliance and will work with the corresponding employment who are not Department continues to use findings employer to address any noted reasonably able to return to their from prevailing wage surveys conducted deficiencies. Upon its clearance of the residence within the same day. Except by SWAs in accordance with the job order, the SWA must promptly place for long-established standards for procedures in the ETA Handbook No. the job order in intrastate clearance and mobile housing in Attachment B, all 385. SWAs are required to transmit commence recruitment of U.S. workers. employer-provided housing must piece rate findings covering itinerant The job order shall remain active until comply with requirements set out in 20 animal shearing activities to the OFLC 50 percent of the work contract period CFR 655.122(d) for the entire period of between May 1st and June 1st of each has elapsed for all SWAs in possession occupancy. An animal shearing calendar year. Following a review of the of the employer’s job order (including employer whose itinerary requires SWA-reported piece rate findings, the those receiving in interstate clearance mobile housing may provide mobile OFLC will publish the new agricultural under 20 CFR 655.150), unless housing to its workers. prevailing piece rates in a Federal otherwise advised by the Chicago NPC. 3. Workers’ compensation. The Register notice with an immediate C. Contents of Job Offers (20 CFR employer must provide workers’ effective date. 655.122). Unless otherwise specified in compensation insurance coverage, as In circumstances where a SWA is this section, the content of job orders described in 20 CFR 655.122(e), in all unable to produce a piece rate finding submitted to the SWAs and the Chicago States where shearing work will be for an occupation, due to an inadequate NPC for animal shearing activities must performed. Prior to the issuance of the sample size or another valid reason, the comply with all of the requirements of Temporary Labor Certification, the wage setting procedures allow the OFLC 20 CFR parts 655, subpart B, 653, employer must provide the Certifying to continue to issue a prevailing piece subparts B and F, and 654. Officer (CO) with proof of workers’ rate for that State based on the piece rate 1. Job qualifications and compensation coverage, including the findings submitted by an adjoining or requirements. name of the insurance carrier, the proximate SWA for the same or similar Experience. Due to the unique nature insurance policy number, and proof of agricultural activities. of the work to be performed, the job insurance for the dates of need, or if If the OFLC cannot establish a offer may specify that applicants appropriate, proof of State law coverage prevailing wage rate by using possess up to 6 months of experience as for each State where the animal shearing comparable survey data from an a shearer covering multiple seasons and work will be performed. In the event adjoining or proximate SWA, the OFLC may require reference(s) to verify the that the current coverage will expire will give consideration to aggregating experience performing these activities. before the end of the certified work survey data from the itinerant sheep Applicants must provide the name, contract period or the insurance shearing activities across States to create address, and telephone number of any statement does not include all of the regional prevailing piece rates. When previous employer being used as a information required under the regional prevailing wages are reference. Except as provided below, the regulations at 20 CFR 655.122(e), the considered, the OFLC may use the U.S. appropriateness of any other experience employer will be required to Department of Agriculture’s (USDA) requirements must be substantiated by supplement its proof of workers’ production or farm resource regions or the employer and approved by the compensation for that State before a other groupings of States used to Chicago NPC. final determination is due. Where the conduct the USDA Farm Labor Survey. Shearing Method. An employer may employer’s coverage will expire before B. Job Orders and SWA Review (20 require that the workers perform the the end of the certified work contract CFR 655.121). An employer engaged in ‘‘Australian’’ or ‘‘free-style’’ method of period, the employer may submit as animal shearing activities is allowed to shearing as a lawful, job-related proof of renewed coverage a signed and submit a single Agricultural and Food requirement. A U.S. worker who dated statement or letter showing proof Processing Clearance Order, ETA Form otherwise qualifies for the job but whose of intent to renew and maintain 790 (job order), Office of Management experience has been limited to shearing coverage for the dates of need. The and Budget (OMB) 1205–0134, and all using the ‘‘tying’’ method must be employer must maintain evidence that appropriate attachments covering a afforded a specified break-in period, its workers’ compensation was renewed, planned itinerary of work in multiple which may not be any fewer than 5 in the event the Department requests it. States. If the job opportunity is located working days, to improve his/her 4. Employer-provided items. An in more than one State, either within the performance and adapt to the ‘‘free- employer in the H–2A Program must same area of intended employment or style’’ method. provide to the worker, without charge or multiple areas of intended employment, Completion of Itinerary. An animal deposit charge, all tools, supplies, and the employer must submit the job order shearing employer may require in its job equipment required to perform the and all attachments (including a offer that an applicant for the job must duties assigned. The Department’s detailed itinerary) to the SWA having be available to work for the remainder regulations have previously recognized jurisdiction over the anticipated of the entire animal shearing itinerary. that the wage rates prevailing in the worksite(s) where the work is expected An applicant referred to the employer animal shearing industry reflect a to begin. The employer must submit the after the labor certification has been historical and common practice of job order no more than 75 calendar days granted, but before 50 percent of the employees providing their own tools.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00114 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47254 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Employers were permitted, upon prior II. Application for Temporary positive recruitment within a multistate approval by the Department, to require Employment Certification Filing region of traditional or expected labor that workers provide their own tools. Procedures supply where the Chicago NPC finds Alternatively, employers who did A. Application Filing Requirements that there are a significant number of provide tools to the workers were (20 CFR 655.130). An individual qualified U.S. workers who, if recruited, permitted to apply a wage differential of employer that desires to apply for would be willing to make themselves $ 0.05 per animal shorn to the required temporary employment certification for available for work at the time and place wage. However, after the enactment of one or more nonimmigrant workers needed. the 2010 Final Rule, an animal shearing must file the following documentation Based on long standing practice, one employer may no longer require that with the Chicago NPC no less than 45 primary source of domestic workers for employees provide their own tools. In calendar days before the employer’s animal shearing has traditionally been addition, an animal shearing employer date of need: the labor organization that represents may no longer deduct from an • ETA Form 9142 (OMB 1205–0466), sheep shearers, the Sheep Shearers employee’s pay the cost of any item that Application for Temporary Employment Union of North America. Therefore, is an employer’s business expense Certification, and Appendix A.2; when the Chicago NPC issues a Notice where doing so would reduce the • Copy of the ETA Form 790 and all of Acceptance, the employer will employee’s wages below the required attachments previously submitted to the receive instructions to contact the Sheep wage rate, consistent with 20 CFR SWA; Shearers Union of North America. In 655.120(a) and 655.122(f) and (p). • An itinerary listing the names and accordance with 20 CFR 655.154(d), the 5. Due to the remote and unique contact information of all employers CO will specify the documentation or nature of the work to be performed, the and identifying, with as much other supporting evidence that must be employer must also specify in the job geographic specificity as possible for maintained by the employer as proof order, and provide at no cost to workers, each farmer/rancher, all of the physical that this positive recruitment an effective means of communicating locations and estimated start and end requirement was met. with persons capable of responding to dates of need where work will be Attachment B: Standards for Mobile the worker’s needs in case of an performed; and Housing Applicable to Occupations in emergency. These means are necessary • All other required documentation the Itinerant Animal Shearing Industry to perform the work and can include, supporting the application. but are not limited to, satellite phones, B. H–2A Labor Contractor (H–2ALC) I. Procedures cell phones, wireless devices, radio Filing Requirements (20 CFR 655.132). Occupations involving itinerant transmitters, or other types of electronic The Department is granting a special animal shearing generally require communication systems. variance to the application filing workers to live in remote housing of a 6. Rates of pay. If paying by the piece procedures for H–2ALCs contained at 20 mobile nature, rather than ‘‘a fixed-site rate, the animal shearing employer must CFR 655.132(a). Specifically, an farm, ranch or similar establishment.’’ specify in the job order the established employer engaged in animal shearing This type of housing is typically piece rates (i.e., rate of pay per head activities is authorized to file an referred to as mobile housing. For sheared) for each State where shearing Application for Temporary Employment purposes of these procedures, mobile will be performed and that is no less Certification covering one or more areas housing is any housing that is capable than the piece rate prevailing for the of intended employment based on a of being moved from one area on the activity in the area of intended definite itinerary. An itinerant animal open range to another. The employer employment. shearing employer who desires to must provide housing at no cost to the If the worker is paid on a piece rate employ one or more nonimmigrant H–2A workers and those workers in basis, the worker’s pay must be workers on an itinerary to provide corresponding employment who are not supplemented if at the end of the pay itinerant animal shearing services to reasonably able to return to their period the piece rate does not result in fixed-site farmers/ranchers is, by residence within the same day. average hourly rate earnings at least definition, an H–2ALC. Therefore, the Where housing for work performed on equal to the amount the worker would itinerant animal shearing labor the range is provided, the regulations at have earned had the worker been paid contractor must identify itself as the 20 CFR 655.122(d)(2) require that such at the highest of the AEWR, the employer of record on the ETA Form housing meet standards of the DOL prevailing hourly wage rate, the agreed- 9142 by completing Section C and Occupational Safety and Health upon collective bargaining wage, or the marking item C.17 as ‘‘H–2A Labor Administration (OSHA). In the absence Federal or State minimum wage, in Contractor,’’ and submitting, in addition of such standards, range housing must effect at the time and in the State where to the documentation required under 20 meet guidelines issued by OFLC. Due to shearing work was performed. CFR 655.130, all other required the fact that OSHA standards currently Productivity Standards. Where an documentation supporting an H–2ALC do not cover mobile housing, Section II employer pays a piece rate and requires application. The only special variance of this attachment establishes the that workers meet a minimum to the requirements at 20 CFR standards for determining the adequacy productivity standard in order to retain 655.132(b) is the recognized exemption of employer-provided mobile housing employment, that productivity standard of sheep shearing activities from the for use on the range. However, any other must be specified in the job offer and requirements of the Migrant and type of housing, used by an employer to must be consistent with 20 CFR Seasonal Agricultural Worker Protection house the workers engaged in itinerant 655.122(l)(2)(iii). The SWA and/or Act (MSPA) (29 U.S.C. 1801, 1803 animal shearing activities, must meet Chicago NPC will review the employer’s (a)(3)(E) et seq.). the standards applicable to such minimum production requirements and housing under 20 CFR 655.122(d). may request additional documentation III. Post-Acceptance Requirements Both mobile housing and fixed-site to substantiate the appropriateness of A. Additional Positive Recruitment farm or ranch housing may be self- any requirement prior to approving the (20 CFR 655.154). An animal shearing certified by an employer. Employers application. employer will be required to conduct must submit a signed statement to the

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00115 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47255

SWA and the Chicago NPC with the for housing workers that meets the the type of equipment practicable, and application for labor certification following standards: whether any heavy equipment can be assuring that the housing is available, used. For example, the Wilderness Act A. Housing Site sufficient to accommodate the number (16 U.S.C. 1133(c)) restricts certain of workers being requested, and meets Mobile housing sites shall be well motorized or mechanical transport on all applicable standards. drained and free from depressions in certain roads in wilderness areas. The SWAs must develop and implement a which water may stagnate. U.S. Forest Service has regulations for schedule which ensures that each B. Water Supply this at 36 CFR part 293. Aside from the employer’s self-certified housing is above, other factors to consider in inspected no less frequently than at 1. An adequate and convenient evaluating heating equipment are the least once every 3 years. These supply of water that meets standards of severity of the weather and the types of inspections may be performed either the State health authority shall be protective clothing and bedding made before or after a request is submitted for provided. The amount of water available to the worker. If the climate in nonimmigrant workers on the open provided must be enough for normal which the housing will be used is mild range. Before referring a worker who is drinking, cooking, and bathing needs of and not reasonably expected to drop entitled to such housing, the SWA office each worker; and below 50 degrees Fahrenheit must ensure that the housing is 2. Individual drinking cups shall be continuously for 24 hours, no separate provided. available and has been inspected in heating equipment is required if proper accordance with the inspection C. Excreta and Liquid Waste Disposal protective clothing and bedding are schedule. If the SWA determines that an 1. Facilities shall be provided and made available; employer’s housing cannot be inspected maintained for effective disposal of 2. Any stoves or other sources of heat in accordance with the inspection excreta and liquid waste in accordance using combustible fuel shall be installed schedule or, when it is inspected, does with requirements of the State health and vented in such a manner as to not meet all the applicable standards, authority or involved Federal agency; prevent fire hazards and a dangerous the Chicago NPC may deny the H–2A and concentration of gases. Portable application in full or in part or require 2. If pits are used for disposal by electrical heaters may be used, and if additional inspections in order to satisfy burying of excreta and liquid waste, approved by Underwriters’ Laboratory, the regulatory requirement. they shall be kept fly-tight when not kerosene heaters may be used according An animal shearing contractor may filled in completely after each use. The to manufacturer’s instructions. If a solid lease a mobile unit owned by a crew maintenance of disposal pits must be in or liquid fuel stove is used in a room member or other person or make some accordance with State and local health with wooden or other combustible other type of ‘‘allowance’’ to the owner. and sanitation requirements. flooring, there shall be a concrete slab, Neither the SWA nor Chicago NPC insulated metal sheet, or other fireproof should be involved in establishing or D. Housing Structure material on the floor under each stove, negotiating the amount an employer 1. Housing shall be structurally extending at least 18 inches beyond the offers to provide to a worker or other sound, in good repair, in sanitary perimeter of the base of the stove; person who owns a mobile unit and condition and shall provide protection 3. Any wall or ceiling within 18 desires to lease it to the employer. The to occupants against the elements; employer may not accept the use of a 2. Housing, other than tents, shall inches of a solid or liquid fuel stove or housing unit owned by a worker have flooring constructed of rigid stove pipe shall be made of fireproof without remuneration, and the materials easy to clean and so located as material. A vented metal collar shall be compensation provided to the owner to prevent ground and surface water installed around a stovepipe or vent must be reasonable and consistent with from entering; passing through a wall, ceiling, floor or leasing rates normally applicable to 3. Each housing unit shall have at roof; and such units. Further, nothing in this least one window which can be opened 4. When a heating system has paragraph alters the employer’s or skylight opening directly to the automatic controls, the controls shall be obligation under 20 CFR 655.122 to outdoors; and of the type which cuts off the fuel provide housing at no cost to the H–2A 4. Tents may be used where terrain supply when the flame fails or is workers and those workers in and/or land regulations do not permit interrupted or whenever a corresponding employment who are not use of other more substantial mobile predetermined safe temperature or reasonably able to return to their housing which provides facilities and pressure is exceeded. residence within the same day, nor the protection closer in conformance with F. Lighting employer’s obligation to pay the the Department’s intent. workers’ wages free and clear. E. Heating 1. In areas where it is not feasible to In addition, if the employer represents provide electrical service to mobile such mobile unit as ‘‘housing or lodging 1. Where the climate in which the housing, including tents, lanterns shall provided by the employer’’, the housing will be used is such that the be provided (kerosene wick lights meet employer ‘‘controls’’ the mobile unit safety and health of a worker requires the definition of lantern); and and is subject to ensuring that the heated living quarters, all such quarters housing unit complies with the shall have properly installed operable 2. Lanterns, where used, shall be applicable mobile housing standards for heating equipment which supplies provided in a minimum ratio of one per such housing. In addition, the employer adequate heat. In considering whether occupant of each unit, including tents. is subject to the SWA inspection the heating equipment is acceptable, the G. Bathing, Laundry and Hand Washing schedule for such a unit. Chicago NPC shall first determine if the housing will be located in a National Movable bathing, laundry and hand II. Mobile Housing Standards Forest Wilderness Section as specified washing facilities shall be provided An employer may use a mobile unit, in the Wilderness Act (16 U.S.C. 1131– when it is not feasible to provide hot camper, or other similar mobile vehicle 1136). Such a location has a bearing on and cold water under pressure.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00116 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47256 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

H. Food Storage 3. Mobile housing units for range use Information Relay Service at 1–800– When mechanical refrigeration of must have a second means of escape. 877–8339. food is not feasible, the worker must be One of the two required means of escape SUPPLEMENTARY INFORMATION: provided with another means of keeping must be a window which can be easily opened, a hatch, or other provision. It Special Procedures: Labor Certification food fresh and preventing spoilage, such Process for Employers Engaged in as a butane or propane gas refrigerator. must be demonstrated that the custom combine worker would be able to crawl Sheepherding and Goatherding Other proven methods of safeguarding Occupations under the H–2A Program fresh foods, such as salting, are through the second exit without acceptable. difficulty; 1. Purpose. To transmit special 4. Tents are not required to have a procedures, as updated to reflect I. Cooking and Eating Facilities second means of escape, except when regulatory and administrative changes 1. When workers or their families are large tents with walls of rigid material in the H–2A Program, for employers permitted or required to cook in their are used. A heater may be used in a tent who apply to the Department to obtain individual unit, a space shall be if the heater is approved by a testing labor certifications to hire temporary provided with adequate lighting and service, such as Underwriters’ agricultural foreign workers to perform ventilation; and Laboratory, and if the tent is fireproof; sheepherding and/or goatherding 2. Wall surfaces next to all food and activities. preparation and cooking areas shall be 5. Adequate fire extinguishers in good 2. References. • of nonabsorbent, easy to clean material. working condition and first aid kits 20 CFR part 655, subpart B; shall be provided in the mobile housing. • 20 CFR part 653, subparts B and F; Wall surfaces next to cooking areas shall • be of fire-resistant material. 20 CFR part 654, subpart E; Signed in Washington, DC, this 29th day of • Field Memorandum (FM) 24–01, July 2011. J. Garbage and Other Refuse Special Procedures: Labor Certification Jane Oates, for Sheepherders and Goatherders under 1. Durable, fly-tight, clean containers Assistant Secretary for Employment and shall be provided to each housing unit, the H–2A Program; Training Administration. • FM 74–89, Special Procedures: including tents, for storing garbage and [FR Doc. 2011–19753 Filed 8–3–11; 8:45 am] other refuse; and Labor Certification for Sheepherders BILLING CODE 4510–FP–P under the H–2A Program; 2. Provision shall be made for • collecting or burying refuse, which ETA Handbook No. 385. 3. Background. Historically, includes garbage, at least twice a week DEPARTMENT OF LABOR or more often if necessary. Refuse employers in several western States have utilized the provisions of the disposal shall conform to Federal, State, Employment and Training Immigration and Nationality Act (INA), or local law, whichever applies. Administration 8 U.S.C. 1101, et seq., to import K. Insect and Rodent Control Training and Employment Guidance nonimmigrant foreign workers to work Appropriate materials, including (TEGL) Letter No. 32–10: Special as sheepherders and goatherders in sprays, must be provided to aid housing Procedures: Labor Certification conjunction with their ranching occupants in combating insects, rodents Process for Employers Engaged in activities. and other vermin. Sheepherding and Goatherding The unique occupational Occupations Under the H–2A Program characteristics of sheepherding L. Sleeping Facilities (spending extended periods of time with A separate sleeping unit shall be AGENCY: Employment and Training grazing herds of sheep in isolated provided for each person, except in a Administration, Labor. mountainous terrain; being on call to family arrangement. Such a unit shall ACTION: Notice. protect flocks from predators 24 hours a include a comfortable bed, cot, or bunk day, 7 days a week) have been with a clean mattress. When filing an SUMMARY: The Employment and recognized by the Department, the application for certification and only Training Administration (ETA) of the United States Citizenship and where it is demonstrated to the CO that United States Department of Labor Immigration Service (USCIS), and is impractical to set up a second (Department) is publishing, for public Congress as significant factors in sleeping unit, the employer may request information, notice of the issuance and limiting the number of United States a variance from the separate sleeping availability of TEGL 32–10 entitled (U.S.) workers who might be available unit requirement to allow for a second Special Procedures: Labor Certification for and capable of performing these jobs. worker to temporarily join the shearing Process for Employers Engaged in During the early 1950’s, Congress operation. The second worker may be Sheepherding and Goatherding enacted three special laws authorizing temporarily housed in the same sleeping Occupations under the H–2A Program, the admission of a certain number of unit for no more than three consecutive signed on June 14, 2011, by Jane Oates, ‘‘foreign workers skilled in days and the employer must supply a Assistant Secretary for Employment and sheepherding’’ for many of these jobs. sleeping bag or bed roll free of charge. Training Administration. Special privileges were granted with FOR FURTHER INFORMATION CONTACT: respect to the issuance of visas which M. Fire, Safety and First Aid William L. Carlson, PhD, Administrator, enabled the foreign workers to gain 1. All units in which people sleep or Office of Foreign Labor Certification, entry into the U.S. on an expedited eat shall be constructed and maintained ETA, U.S. Department of Labor, 200 basis, provided that they were otherwise according to applicable State or local Constitution Avenue, NW., Room C– admissible into the U.S. for permanent fire and safety law; 4312, Washington, DC 20210; residence. 2. No flammable or volatile liquid or Telephone (202) 693–3010 (this is not a During 1955 and 1956, the House materials shall be stored in or next to toll-free number). Individuals with Judiciary Committee (Committee), in rooms used for living purposes, except hearing or speech impairments may response to requests from sheep for those needed for current household access the telephone number above via ranchers, undertook an investigation to use; TTY by calling the toll-free Federal examine allegations that a number of

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00117 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47257

foreign sheepherders and goatherders established special procedures for parts 655, subpart B, 653, subparts B admitted under the special laws were sheepherders and goatherders through and F, and 654. leaving sheepherding shortly after FM 74–89. Due to the evolution of the 5. Effective Date. This guidance arriving in the U.S., and were instead H–2A Program, these special procedures applies to all temporary labor employed in other industries and were rescinded and new special certification applications for occupations. procedures established by FM 24–01, occupations in sheepherding and The Committee’s investigation which has been in use since August 1, goatherding in the H–2A Program with substantiated many of these allegations. 2001. a start date of need on or after October In a report issued on February 14, 1957, The 1987 regulations remained in 1, 2011. the Committee stated that American effect, largely unchanged, until the 6. Action. The Chicago National employers and the sheep raising Department promulgated new H–2A Processing Center (Chicago NPC) industry had not fully benefitted from regulations on December 18, 2008. 73 Program Director and the State the services of foreign sheepherders, as FR 77110, Dec. 18, 2008 (the 2008 Final Workforce Agency (SWA) was intended by the special legislation. Rule). The 2008 Final Rule Administrators are directed to The Committee recommended that no implemented an attestation-based immediately provide copies of these additional special legislation be enacted application process and made several special procedures to all staff involved to admit foreign sheepherders and also substantive changes to the program, but with processing H–2A labor certification that the future importation of foreign retained the special procedures concept. applications for sheepherders and/or sheepherders be governed by the H–2 After the Department determined that goatherders. The revised special temporary worker provisions of the INA the 2008 Final Rule did not meet H–2A procedures will apply to all employer and administered by the Immigration Program policy objectives, the applications with a start date of need on and Naturalization Service (INS) (now, Department commenced another or after October 1, 2011. USCIS) and the Department. H.R. Rep. rulemaking process culminating in the 7. Inquiries. Questions from the No. 67, 85th Cong., 1st Session (1957). publication of new H–2A regulations on Public should be directed to the local Following the issuance of the February 12, 2010. 75 FR 6884, Feb. 12, SWA. Questions from SWA staff should Committee’s report, Congress permitted 2010 (the 2010 Final Rule). The 2010 be directed to the Chicago NPC. the special legislation to expire. No Final Rule implements changes that Questions from the Chicago NPC staff additional legislation for sheepherders affect special procedures for the should be directed to the OFLC National has been enacted to date. The labor occupations involved in sheep and goat Office. certification program for temporary herding. Under 20 CFR 655.102 (as 8. Attachment. foreign sheepherders and goatherders amended by the 2010 Final Rule) the Attachment A: Special Procedures: was implemented consistent with the Office of Foreign Labor Certification Labor Certification Process for H–2 program administered by INS (now, (OFLC) Administrator is provided with Applications for Sheepherding and USCIS) and the Department. the authority to establish, continue, Goatherding Occupations under the In 1986, Congress passed the revise or revoke special procedures for H–2A Program. See full text below. Immigration Reform and Control Act of processing H–2A applications, Attachment B: Standards for Mobile 1986 (IRCA) which amended the INA including those for sheepherders and Housing Applicable to Sheepherders and established the H–2A Program. In goatherders, so long as those procedures and Goatherders. See full text below. 1987, the Department issued an Interim do not deviate from statutory Attachment A: Special Procedures: Final Rule, promulgating the first H–2A requirements under the INA. regulations (the 1987 regulations) in This TEGL updates the special Labor Certification Process for accordance with IRCA. 54 FR 20496, procedures previously established for Applications for Sheepherding and Jun. 1, 1987. The 1987 regulations applications for occupations involved in Goatherding Occupations under the provided for the administration of the sheepherding and goatherding to reflect H–2A Program H–2A Program by the ETA Regional organizational changes, in addition to This document outlines special Administrators, and instituted new regulatory and policy objectives. It procedures for applications submitted procedures to offset the adverse effects rescinds and replaces previous guidance by employers for sheepherding and/or of immigration on U.S. workers, disseminated under FM 24–01, Special goatherding occupations under the H– procedures which did not exist until Procedures: Labor Certification for 2A Program. Unless otherwise specified that time. Although neither the IRCA Sheepherders and Goatherders Under in this attachment, applications amendments nor the INA specifically the H–2A Program. submitted for these occupations must address the employment of 4. Special Procedures. Attachment A comply with the requirements for nonimmigrant foreign sheepherders and outlines special procedures for labor processing H–2A applications outlined goatherders in the U.S., the certification applications submitted by in 20 CFR part 655, subpart B. Similarly, Department’s 1987 regulations employers for occupations in unless otherwise specified, job orders established special procedures for sheepherding and goatherding under the submitted for these occupations must certain occupations, as long as they did H–2A Program. Attachment B outlines comply with the requirements of 20 CFR not deviate from the Secretary’s standards for mobile housing applicable parts 655, subpart B, 653, subparts B statutory responsibility to determine to occupations in sheepherding and and F, and 654. U.S. worker availability and to make a goatherding under the H–2A Program. determination as to the adverse effect of Unless otherwise specified in I. Prefiling Procedures foreign workers on the wages and Attachments A and B, applications A. Offered Wage Rate (20 CFR working conditions of U.S. workers. submitted for these occupations must 655.120(a)). The Department is After the promulgation of the 1987 comply with the requirements for continuing a special variance to the regulations, the Department clarified processing H–2A applications contained offered wage rate requirements precisely how and when certain new H– at 20 CFR part 655, subpart B. Similarly, contained at 20 CFR 655.120(a). Because 2A requirements and procedures would unless otherwise specified, job orders occupations involving sheepherding be applied to the sheepherder program. submitted for these occupations must and/or goatherding are characterized by Subsequently, in 1989, the Department comply with the requirements of 20 CFR other than a reasonably regular workday

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00118 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47258 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

or workweek, an employer must agree to appropriate attachments covering a members any qualified U.S worker who offer, advertise in the course of its planned itinerary of work in multiple applies for employment. recruitment, and pay the monthly, States. If the job opportunity is located The Chicago NPC will review the job weekly, or semi-monthly prevailing in more than one State, either within the order for compliance with all regulatory wage established by the OFLC same area of intended employment or requirements and work with the Administrator for each State listed in an multiple areas of intended employment, association to address any deficiencies approved itinerary. As a condition of the employer must submit the job order in a manner that is consistent with 20 receiving an H–2A labor certification, an and all attachments (including a CFR 655.140 and 141. Once the job employer must comply with all detailed itinerary) to the SWA having order is determined to meet all applicable Federal, State and local jurisdiction over the anticipated regulatory requirements, the Chicago employment-related laws and worksite(s) where the work is expected NPC will issue a Notice of Acceptance regulations, including the mandatory to begin. The employer must submit the consistent with 20 CFR 655.143, place a State minimum wage rates for the job order no more than 75 calendar days copy of the master job order on the occupation. and no less than 60 calendar days before Department’s national electronic job In establishing the prevailing wage the employer’s first date of need. registry, and notify the association and rate for sheepherding and/or Unless otherwise specified in these all appropriate SWAs with jurisdiction goatherding, the Department uses special procedures, the job order over the anticipated worksites. findings from prevailing wage surveys submitted to the SWA must satisfy the C. Contents of Job Offers (20 CFR conducted by SWAs in accordance with requirements for agricultural clearance 655.122). Unless otherwise specified in the procedures in the ETA Handbook orders outlined in 20 CFR part 653, this section, the content of job orders No. 385, and consistent with the wage subpart F and the requirements set forth submitted to the SWAs and the Chicago setting procedures historically applied in 20 CFR 655.122. The SWA will NPC for sheepherding and/or to sheepherder occupations in the review the job order for regulatory goatherding occupations must comply Western States. SWAs are required to compliance and will work with the with all of the requirements of 20 CFR transmit wage rate findings covering employer to address any noted parts 655, subpart B, 653, subparts B sheepherding and/or goatherding to the deficiencies. Upon clearance of the job and F, and, 654. OFLC between May 1st and June 1st of order, the SWA must promptly place the 1. Job Duties, Qualifications, and each calendar year. Following a review job order in intrastate clearance and Requirements of the SWA wage rate findings, the commence recruitment of U.S. workers. OFLC will publish the new agricultural Job Duties. Based on current industry The job order shall remain active until prevailing wage rates in a Federal practice, the SWA may rely on the 50 percent of the work contract period Register notice with an immediate following standard description of the has elapsed for all SWAs in possession effective date. duties to be performed by sheepherders In circumstances where a SWA is of the employer’s job order (including and/or goatherders: unable to produce a wage rate finding those receiving it in interstate clearance Attends sheep and/or goat flock for an occupation, due to an inadequate under 20 CFR 655.150), unless grazing on the range or pasture. Herds sample size or another valid reason, the otherwise advised by the Chicago NPC. flock and rounds up strays using trained wage setting procedures allow the OFLC 2. Master Job Orders Filed by dogs. Beds down flock near evening to issue a prevailing wage rate for that Associations. The Department is campsite. Guards flock from predatory State based on the wage rate findings granting a waiver of the required time animals and from eating poisonous submitted by an adjoining or proximate period and location(s) of filing job plants. Drenches sheep and/or goats. SWA for the same or similar agricultural orders prepared by associations acting May examine animals for signs of illness activities to ensure that the wages of as a joint employer with its members. and administer vaccines, medications similarly employed workers are not Where the job order is being prepared in and insecticides according to adversely affected. connection with a future master instructions. May assist in lambing, If the OFLC cannot establish a wage application, the joint employer docking, and shearing. May perform rate by using comparable survey data association will submit a single other farm or ranch chores related to the from an adjoining or proximate SWA, ‘‘master’’ job order directly to the production and husbandry of sheep the OFLC will give consideration to Chicago NPC once each calendar year in and/or goats on an incidental basis. aggregating survey data for accordance with a schedule approved Any additional job duties must be sheepherding and/or goatherding by the Chicago NPC. Because of the normal and accepted for the occupation, activities across States to create regional unique nature of sheepherding and/or and the SWA and Chicago NPC have the prevailing wage rates. When regional goatherding work, and the historic authority to request supporting prevailing wages are considered, the shortage of domestic workers, an documentation substantiating the OFLC may use the U.S. Department of association is permitted to file a master appropriateness of the duties prior to Agriculture’s (USDA) production or job order on behalf of a number of its accepting the job order. Additionally, farm resource regions or other groupings employer-members in more than two the SWA or Chicago NPC may request of States used to conduct its Farm Labor contiguous States as long as (a) the job modifications to the job duties if Survey. order remains active on a year-round additional information, such as climatic basis, (b) the job order contains the conditions and/or the size of flocks (e.g., B. Job Orders and SWA Review (20 CFR names, addresses, telephone numbers, open range bands of sheep are often 655.121) and number of openings of each 1,000 heads or more), necessitates the 1. Basic Process. An employer employer and identifying, with as much use of pack and saddle horses to reach engaged in sheepherding and/or geographic specificity as possible and the range in order to fully apprise U.S. goatherding activities is allowed to for each employer, all of the physical workers of the nature of the work to be submit a single Agricultural and Food locations, directions, and estimated start performed. Processing Clearance Order, ETA Form and end dates of need where work will Experience. Due to the unique nature 790 (job order), Office of Management be performed, and (c) the association of the work to be performed, the job and Budget (OMB) 1205–0134, and all agrees to place with any of its employer- offer may specify that applicants

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00119 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47259

possess up to 6 months of experience in final determination is due. Where the sheepherders and/or goatherders, the sheepherding or similar occupations employer’s coverage will expire before employer is authorized to pay the involving the range tending or the end of the certified work contract worker based on a monthly payment production of livestock covering period, the employer may submit as arrangement as long as the worker multiple seasons and may require proof of renewed coverage a signed and mutually agrees and the arrangement is reference(s) to verify experience in dated statement or letter showing proof reflected in the work contract. performing these activities. Applicants of intent to renew and maintain Employers must pay wages when due. must provide the name, address, and coverage for the dates of need. The 8. Period of Employment and Work telephone number of any previous employer must maintain evidence that Contract. The total period of employer being used as a reference. The its workers’ compensation was renewed, employment (Item No. 9 on ETA Form appropriateness of any other experience in the event the Department requests it. 790) contained in a job offer must be for requirements must be substantiated by 3. Employer-provided items. Due to no more than one year. Employers the employer and approved by the the remote and unique nature of the whose original certified period of Chicago NPC. work to be performed, the employer employment is less than the maximum Hours. The description of anticipated must also specify in the job order and permissible duration, may negotiate a hours of work must show ‘‘on call for provide at no cost to workers an longer-term contract with an H–2A or a up to 24 hours per day, 7 days per effective means of communicating with U.S. worker after workers arrive at the week’’ in the job order. If an application persons capable of responding to the job site consistent with 20 CFR 655.170. filed for a sheepherder or goatherder worker’s needs in case of an emergency. An extension of the work contract does not include the requirements of These means are necessary to perform period that is negotiated between the H– being on call 24 hours per day, 7 days the work and can include, but are not 2A employer and a worker which would per week, the Chicago NPC may not limited to, satellite phones, cell phones, extend the work contract period beyond process the employer’s application wireless devices, radio transmitters, or the 12 months permitted by the under the special procedures other types of electronic communication Department’s H–2A regulations, enumerated in this TEGL, and must systems. requires that the employer obtain a new instead require compliance with all the 4. Meals. Based on long standing labor certification from the Department. requirements of the H–2A regulations practice in the industry, the employer Short term extensions which do not outlined in 20 CFR part 655, subpart B. must provide its U.S. and H–2A workers exceed two weeks may be submitted 1. Housing. The employer must state free of charge either three prepared directly to the Department of Homeland in its job order that sufficient housing meals a day, when workers are in camp, Security for approval. However, the will be provided at no cost to H–2A or free and convenient cooking facilities employer must first submit for approval workers and any workers in and provision of food for the workers to any change in the period of employment corresponding employment who are not prepare their own meals while in camp to the Chicago NPC, consistent with 20 reasonably able to return to their or on the range. CFR 655.170, if the change would result residence within the same day. Except 5. Transportation; daily subsistence. in an extension of the work contract for long-established standards for Based on long standing practice in the period in excess of two weeks. mobile housing as set out in Attachment industry, the employer must advance When a longer term contract is B, all employer-provided housing must inbound transportation and subsistence negotiated with a worker, the employer comply with requirements set out in 20 costs to both U.S. and H–2A workers is not relieved of the responsibility for CFR 655.122(d) for the entire period of being recruited and extend the same reimbursement to the worker for travel occupancy. An employer whose benefit to workers in corresponding and subsistence expenses incurred in itinerary requires mobile housing may employment, consistent with 20 CFR getting to the job site which were provide mobile housing to its workers. 655.122(h). advanced by the employer and 2. Workers’ compensation. The 6. Earnings records and statements. subsequently withheld from the employer must provide workers’ The employer must keep accurate and worker’s pay until 50 percent of the compensation insurance coverage as adequate records with respect to the original contract period elapsed. These described in 20 CFR 655.122(e) in all workers’ earnings and furnish to the payments must be made at the 50 States where sheepherding and/or worker on or before each payday a percent completion point of the original goatherding work will be performed. statement of earnings. Because the certified period of employment. The Prior to the issuance of the Temporary unique circumstances of employing employer is also responsible for Labor Certification, the employer must sheepherders and/or goatherders (i.e., transportation and subsistence expenses provide the Certifying Officer (CO) with on call 24/7 in remote locations) prevent from the place of employment if the proof of workers’ compensation the monitoring and recording of hours worker successfully fulfills his/her coverage, including the name of the actually worked each day as well as the obligations under the original certified insurance carrier, the insurance policy time the worker begins and ends each terms of employment or is terminated number, and proof of insurance for the workday, the employer is exempt from without cause and has no subsequent dates of need, or if appropriate, proof of reporting on these two specific H–2A employment. The employer must State law coverage for each State where requirements at 20 CFR 655.122(j) and provide or pay for the worker’s return the sheepherding and/or goatherding (k). However, all other regulatory transportation and subsistence work will be performed. In the event requirements related to earnings records whenever the employment relationship that the current coverage will expire and statements apply. is severed after the completion of the before the end of the certified work 7. Frequency of pay. The employer original certified work contract period contract period or the insurance must state in the job offer the frequency or where the worker is terminated statement does not include all of the with which the worker will be paid, without cause. Similarly, an employer is information required under the which must be at least twice monthly or not relieved of its obligation to pay for regulations at 20 CFR 655.122(e), the according to the prevailing practice in return transportation and subsistence if employer will be required to the area of intended employment, an H–2A worker is displaced as a result supplement its proof of workers’ whichever is more frequent. Due to the of the employer’s compliance with the compensation for that State before a unique circumstances of employing 50 percent rule. Successful completion

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00120 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47260 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

of the original certified work contract association and all appropriate SWAs local office of the SWA when they arrive period or job order entitles the worker with jurisdiction over the anticipated in the area of intended employment. to return transportation and subsistence worksites. Employers who wish to conduct regardless of performance under any For both individual employer interviews must do so at little or no cost short or long-term extension of the applications and master applications, to the worker, in accordance with 20 contract. the filing procedures at 20 CFR CFR 655.152(j). 655.130–655.135 apply to ‘‘initial’’ Because of the unique nature of II. Application for Temporary applications (i.e., where the employer is master job orders, the association will Employment Certification Filing requesting a labor certification to hire a need to determine if there is a job Procedures nonimmigrant foreign worker to fill a opening in the geographic area of the A. Application Filing Requirements vacant position) as well as to ‘‘renewal’’ applicant’s choice. The association will (20 CFR 655.130). An individual applications (i.e., where the employer is make every effort to place a qualified employer that desires to apply for requesting certification for a position applicant with an employer-member in temporary employment certification for which is already held by a the geographic area of the applicant’s one or more nonimmigrant foreign nonimmigrant foreign worker choice within 3 working days of the workers must file the following completing the first or second year of a telephone interview. If the applicant is documentation with the Chicago NPC planned 3-year work period with the determined to be qualified and the no less than 45 calendar days before the employer). geographic assignment choice can be employer’s date of need: accommodated, the association, after • III. Post-Acceptance Requirements ETA Form 9142 (OMB 1205–0466), receiving authorization or confirmation Application for Temporary Employment A. Interstate clearance of job order. from the specific employer, will make a Certification, and Appendix A.2; The Chicago NPC Certifying Officer will • hiring commitment on behalf of the Copy of the ETA Form 790 and all place a copy of the master job order on employer-member who has the job attachments previously submitted to the the Department’s national electronic job opening to which the applicant will be SWA; registry, and notify the association and • placed. A planned itinerary listing the all appropriate SWAs with jurisdiction The association may also make names and contact information of all over the anticipated worksites to make available to applicants information on farmers/ranchers and identifying, with available a copy of the master job order job openings with non-association as much geographic specificity as on their active files and initiate employers, particularly in situations possible and for each farmer/rancher, all recruitment of U.S. workers. This where the association is not able to of the physical locations and estimated procedure applies to applications filed readily accommodate the applicant’s start and end dates of need where work by an individual employer as well as an geographic choice of employment. will be performed; and association and satisfies the agricultural However, receiving such a referral will • All other required documentation clearance order requirements at 20 CFR not preclude the applicant from supporting the application. part 653, subpart F. choosing a different geographic area B. Master Applications Filed by B. Newspaper advertisements. covering an employer-member or from Associations. An association filing as a Because of the unique nature of deferring a decision to accept a job offer joint employer may submit a master sheepherding and/or goatherding work, until a job opening in the geographic application on behalf of a number of its and the consistent lack of qualified employer-members in more than two applicants responding to newspaper area of choice becomes available with contiguous States covering multiple advertisements, all applications filed by an employer-member. After the matter start dates of employment as long as the an individual employer and/or an of geographic location/assignment is application identifies the names, association are exempt from the resolved, the association will provide addresses, telephone numbers, regulatory requirements at 20 CFR notification to the SWA when the directions to all work locations/ 655.151 to place advertisements in a applicant has been hired and facilitate itinerary, estimated dates of need, and newspaper of general circulation. the arrangements necessary to ensure the number of openings for each C. Referrals of U.S. workers. In that transportation and subsistence are employer-member that will employ accordance with 20 CFR 655.155, SWAs provided in advance to the worker by workers. The association may prepare, may only refer for employment the association. The association will sign, and submit the Appendix A.2 on individuals who have been apprised of retain all documentation related to behalf of its members. all the material terms and conditions of referrals of U.S. workers, interviews and An association with a master job order employment and have indicated, by the results of such actions for a period on file with the Chicago NPC is not accepting referral to the job opportunity, of 3 years and will make all materials required to re-submit the ETA Form 790 that he or she is qualified, able, willing, related to the recruitment and and all attachments unless the and available for employment. For consideration of U.S. applicants association is requesting modifications. master job orders, the association may available to the Chicago NPC pursuant The Chicago NPC will verify that the accept referrals of U.S. workers, conduct to a request for audit as required by 20 master job order associated with a interviews, and make hiring CFR 655.180(b). master application is available on the commitments on behalf of its employer- IV. Post-Certification: Transfer of national electronic job registry and members. In such circumstances, the Workers covers all the employer-members duly master job order must clearly explain named on the ETA Form 9142. Any how applicants will be considered for A. Authority changes to the master job order and/or hire through the association, including Pursuant to 8 U.S.C. 1188(d)(2), the application must be reviewed and the method(s) for contact (e.g., Department’s certification granted to the approved by the Chicago NPC. Any telephone, in person), hours and/or association may be used for the certified approved modifications to the master location(s) for conducting interviews, an job opportunities of any of its members job order will be placed on the indication that collect calls will be and such workers may be transferred Department’s national electronic job accepted, and whether referred among its members to perform the registry and notification provided to the applicants should report to the nearest services for which the certification was

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00121 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47261

granted. Although a worker may be worker the established prevailing wage schedule or, when it is inspected, does transferred from one member to another for that State. not meet all the applicable standards, member, the association may not the Chicago NPC may deny the H–2A Attachment B: Standards for Mobile transfer workers to any non-member application in full or in part or require Housing Applicable to Sheepherders employer or employer-members not additional inspections in order to satisfy and Goatherders disclosed on the master job order. the regulatory requirement. The employer must disclose in the job I. Procedures II. Mobile Housing Standards offer that workers may be transferred to Occupations involving sheepherding/ any of its certified members and goatherding generally require workers to An employer may use a mobile unit, guarantee that workers will be notified live in remote housing of a mobile camper, or other similar mobile vehicle at least 7 working days in advance of nature, rather than ‘‘a fixed-site farm, for housing workers that meets the such transfer. When a worker objects to ranch or similar establishment.’’ This following standards: a transfer, the association will consider type of housing is typically referred to the worker’s concerns and preferences. A. Housing Site as mobile housing. For purposes of However, ultimate refusal on the part of Mobile housing sites shall be well these special procedures, mobile a worker to a transfer may subject the drained and free from depressions in housing is any housing that is capable worker to dismissal based on a lawful, which water may stagnate. of being moved from one area on the job-related reason. open range to another. The employer B. Water Supply B. Notification to the DOL and SWA must provide housing at no cost to the 1. An adequate and convenient To ensure the employer to whom a H–2A workers and those workers in supply of water that meets standards of worker is being transferred has corresponding employment who are not the State health authority shall be sufficient housing meeting the reasonably able to return to their provided. The amount of water applicable standards, the association residence within the same day. provided must be enough for normal shall provide written notification to the Where housing for work performed on drinking, cooking, and bathing needs of SWA with jurisdiction over the area of the range is provided, the regulations at each worker; and intended employment and the Chicago 20 CFR 655.122(d)(2) require that such 2. Individual drinking cups shall be NPC no less than 7 working days prior housing meet standards of the DOL provided. to the transfer. Such notification shall Occupational Safety and Health describe the details of the transfer, Administration (OSHA). In the absence C. Excreta and Liquid Waste Disposal including the number and names of of such standards, range housing must 1. Facilities shall be provided and workers and employers affected and meet guidelines issued by OFLC. Due to maintained for effective disposal of housing information. This notification the fact that OSHA standards currently excreta and liquid waste in accordance will provide the SWA with time to make do not cover mobile housing, Section II with requirements of the State health a determination regarding the suitability of this attachment establishes the authority or involved Federal agency; of the housing and, where such a standards for determining the adequacy and transfer affects the available job of employer-provided mobile housing 2. If pits are used for disposal by openings of the association’s employer for use on the range. burying of excreta and liquid waste, member(s), allow the SWA and Chicago Both mobile housing and fixed-site they shall be kept fly-tight when not NPC to make appropriate modifications farm or ranch housing may be self- filled in completely after each use. The to the active master job order to reflect certified by an employer. Employers maintenance of disposal pits must be in any changes in the employer’s situation. must submit a signed statement to the accordance with State and local health If the SWA determines that suitable SWA and the Chicago NPC with the and sanitation requirements. housing is not available, the SWA shall application for labor certification provide written notification to the assuring that the housing is available, D. Housing Structure association and the Chicago NPC that sufficient to accommodate the number 1. Housing shall be structurally the planned transfer shall be put in of workers being requested, and meets sound, in good repair, in sanitary abeyance until the housing is all applicable standards. However, any condition and shall provide protection determined by the SWA to be sufficient other type of housing used by an to occupants against the elements; and meets the applicable standards, or employer to house the workers engaged 2. Housing, other than tents, shall the association agrees to transfer the in sheepherding/goatherding activity have flooring constructed of rigid worker to another employer where the must meet the standards applicable to materials easy to clean and so located as SWA has issued a determination that such housing under 20 CFR 655.122(d). to prevent ground and surface water housing is suitable. SWAs must develop and implement a from entering; schedule which ensures that each 3. Each housing unit shall have at C. Contractual Obligations employer’s self-certified housing is least one window which can be opened The employer who employs the newly inspected no less frequently than at or skylight opening directly to the transferred worker assumes the existing least once every 3 years. These outdoors; and obligations of the work contract entered inspections may be performed either 4. Tents may be used where terrain into with the previous employer before or after a request is submitted for and/or land regulations do not permit including any multi-year contract nonimmigrant workers on the open use of other more substantial mobile negotiated with the worker. The range. Before referring a worker who is housing which provides facilities and association is responsible for entitled to such housing, the SWA office protection closer in conformance with maintaining and making available for must ensure that the housing is the Department’s intent. inspection a copy of all work contracts available and has been inspected in for its employer-members. Where the accordance with the inspection E. Heating worker is moved to another State with schedule. If the SWA determines that an 1. Where the climate in which the a different offered wage rate, the employer’s housing cannot be inspected housing will be used is such that the employer will be required to pay the in accordance with the inspection safety and health of a worker requires

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00122 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47262 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

heated living quarters, all such quarters 2. Lanterns, where used, shall be M. Fire, Safety and First Aid shall have properly installed operable provided in a minimum ratio of one per 1. All units in which people sleep or heating equipment which supplies occupant of each unit, including tents. eat shall be constructed and maintained adequate heat. In considering whether G. Bathing, Laundry and Hand Washing according to applicable State or local the heating equipment is acceptable, the fire and safety law; Movable bathing, laundry and hand Chicago NPC shall first determine if the 2. No flammable or volatile liquid or washing facilities shall be provided housing will be located in a National materials shall be stored in or next to when it is not feasible to provide hot Forest Wilderness Section as specified rooms used for living purposes, except and cold water under pressure. in the Wilderness Act (16 U.S.C. 1131– for those needed for current household 1136). Such a location has a bearing on H. Food Storage use; the type of equipment practicable, and When mechanical refrigeration of 3. Mobile housing units for range use whether any heavy equipment can be food is not feasible, the worker must be must have a second means of escape. used. For example, the Wilderness Act provided with another means of keeping One of the two required means of escape (16 U.S.C. 1133(c)) restricts certain food fresh and preventing spoilage, such must be a window which can be easily motorized or mechanical transport on as a butane or propane gas refrigerator. opened, a hutch, or other provision. It certain roads in wilderness areas. The Other proven methods of safeguarding must be demonstrated that the custom U.S. Forest Service has regulations for fresh foods, such as salting, are combine worker would be able to crawl this at 36 CFR part 293. Aside from the acceptable. through the second exit without above, other factors to consider in difficulty; evaluating heating equipment are the I. Cooking and Eating Facilities 4. Tents are not required to have a severity of the weather and the types of 1. When workers or their families are second means of escape, except when protective clothing and bedding made permitted or required to cook in their large tents with walls of rigid material available to the worker. If the climate in individual unit, a space shall be are used. A heater may be used in a tent which the housing will be used is mild provided with adequate lighting and if the heater is approved by a testing and not reasonably expected to drop ventilation; and service, such as Underwriters’ below 50 degrees Fahrenheit 2. Wall surfaces next to all food Laboratory, and if the tent is fireproof; continuously for 24 hours, no separate preparation and cooking areas shall be and heating equipment is required if proper of nonabsorbent, easy to clean material. 5. Adequate fire extinguishers in good protective clothing and bedding are Wall surfaces next to cooking areas shall working condition and first aid kits made available; be of fire-resistant material. shall be provided in the mobile housing. 2. Any stoves or other sources of heat J. Garbage and Other Refuse Signed in Washington, DC, this 29th day of using combustible fuel shall be installed July 2011. and vented in such a manner as to 1. Durable, fly-tight, clean containers Jane Oates, shall be provided to each housing unit, prevent fire hazards and a dangerous Assistant Secretary for Employment and concentration of gases. Portable including tents, for storing garbage and Training Administration. electrical heaters may be used, and if other refuse; and 2. Provision shall be made for [FR Doc. 2011–19755 Filed 8–3–11; 8:45 am] approved by Underwriters’ Laboratory, collecting or burying refuse, which BILLING CODE 4510–FP–P kerosene heaters may be used according includes garbage, at least twice a week to manufacturer’s instructions. If a solid or more often if necessary. Refuse DEPARTMENT OF LABOR or liquid fuel stove is used in a room disposal shall conform to Federal, State, with wooden or other combustible or local law, whichever applies. flooring, there shall be a concrete slab, Mine Safety and Health Administration insulated metal sheet, or other fireproof K. Insect and Rodent Control Brookwood-Sago Mine Safety Grants material on the floor under each stove, Appropriate materials, including extending at least 18 inches beyond the sprays, must be provided to aid housing AGENCY: Mine Safety and Health perimeter of the base of the stove; occupants in combating insects, rodents Administration, Labor. 3. Any wall or ceiling within 18 and other vermin. ACTION: Solicitation for Grant Applications (SGA). inches of a solid or liquid fuel stove or L. Sleeping Facilities stove pipe shall be made of fireproof SUMMARY: material. A vented metal collar shall be A separate sleeping unit shall be The U.S. Department of installed around a stovepipe or vent provided for each person, except in a Labor, Mine Safety and Health passing through a wall, ceiling, floor or family arrangement. Such a unit shall Administration (MSHA), is making roof; and include a comfortable bed, cot, or bunk $1,000,000 available in grant funds for with a clean mattress. When filing an educational and training programs to 4. When a heating system has application for certification and only help identify, avoid, and prevent unsafe automatic controls, the controls shall be where it is demonstrated to the working conditions in and around of the type which cuts off the fuel Certifying Officer that it is impractical mines. The focus of these grants for the supply when the flame fails or is to set up a second sleeping unit, the Fiscal Year (FY) 2011 will be on training interrupted or whenever a employer may request a variance from and training materials for mine predetermined safe temperature or the separate sleeping unit requirement emergency preparedness and mine pressure is exceeded. to allow for a second worker to emergency prevention for all F. Lighting temporarily join the sheepherding/ underground mines. Applicants for the goatherding operation. The second grants may be States and nonprofit 1. In areas where it is not feasible to worker may be temporarily housed in (private or public) entities. MSHA could provide electrical service to mobile the same sleeping unit for no more than award as many as 20 separate grants. housing, including tents, lanterns shall three consecutive days and the The amount of each individual grant be provided (kerosene wick lights meet employer must supply a sleeping bag or will be at least $50,000.00. The the definition of lantern); and bed roll free of charge. maximum amount for a 12-month

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00123 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47263

period of performance is $250,000. Also, • Part VIII addresses Office of The awardees’ eligibility for the MSHA is announcing a new program Management and Budget information second-year of funding in FY 2012 is structure allowing applicants to apply collection requirements. contingent on certain conditions being for a renewal grant. This notice contains met. MSHA will award funding for the I. Funding Opportunity Description all of the information needed to apply second-year of performance based on for grant funding. A. Overview of the Brookwood-Sago the following requirements: DATES: The closing date for applications Mine Safety Grant Program 1. The grant topics are still a priority with MSHA for training under the will be August 31, 2011 (no later than Responding to several coal mine 11:59 p.m. EDST). MSHA will award Brookwood-Sago grants; disasters, Congress enacted the Mine 2. Funds are available for the grants on or before September 30, 2011. Improvement and New Emergency Brookwood-Sago grant program; and ADDRESSES: Applications for grants Response Act of 2006 (MINER Act). 3. The grantee has demonstrated submitted under this competition must When Congress passed the MINER Act, acceptable performance under the first be submitted electronically using the it expected that requirements for new year of the grant. Government-wide site at http:// and advanced technology, e.g., fire- If MSHA funds the second year of www.grants.gov. If applying online resistant lifelines and increased renewal grants, it will advise, in the FY poses a hardship to any applicant, the breathable air availability in escapeways 2012 Brookwood-Sago SGA, those MSHA Directorate of Educational Policy would increase safety in mines. The grantees eligible for renewal grants of and Development will provide MINER Act also required that every the paperwork necessary to obtain their assistance to help applicants submit underground coal mine would have second year of funding. If a renewal online. MSHA’s Web page at http:// persons trained in emergency response. grantee chooses not to pursue the www.msha.gov is a valuable source of Congress emphasized its commitment to second year of funding, the grantee may background for this initiative. training for mine emergencies when it still compete for a new Brookwood-Sago strengthened the requirements for the FOR FURTHER INFORMATION CONTACT: Any grant in FY 2012. MSHA would not questions regarding this solicitation for training of mine rescue teams. Recent penalize an eligible grantee for not grant applications (SGA 11–3BS) should events demonstrate that training is the applying for its second year of funding be directed to Robert Glatter at key for proper and safe emergency under the renewal grant and would [email protected] or at 202–693– response and that all miners employed permit the grantee to compete for 9570 (this is not a toll-free number) or underground should be trained in another Brookwood-Sago grant. the Grant Officer, Carl Campbell at emergency response. Under Section 14 of the MINER Act, C. Educational and Training Program [email protected] or at 202–693– Priorities 9839 (this is not a toll-free number). the Secretary of Labor (Secretary) is required to establish a competitive grant MSHA priorities for the FY 2011 SUPPLEMENTARY INFORMATION: program called the ‘‘Brookwood-Sago funding of the annual Brookwood-Sago Announcement Type: New. Mine Safety Grants’’ (Brookwood-Sago grants will focus on training or training Funding Opportunity Number: SGA grants). This program provides funding materials for mine emergency 11–3BS. of education and training programs to preparedness and mine emergency Catalog of Federal Domestic Assistance better identify, avoid, and prevent prevention for all underground mines. (CFDA) Number: 17.603. unsafe working conditions in and MSHA expects Brookwood-Sago around mines. This program will use grantees to develop training materials or This solicitation provides background grant funds to establish and implement to develop and provide mine safety information and the critical elements education and training programs or to training or educational programs, recruit required of projects funded under the create training materials and programs. mine operators and miners for the solicitation. It also describes the The MINER Act requires the Secretary training, and conduct and evaluate the application submission requirements, to give priority to mine safety training. the process that eligible applicants must demonstrations and pilot projects with For the renewal grants, MSHA’s use to apply for funds covered by this broad applicability. It also mandates priorities will focus on training for mine solicitation, and how grantees will be that the Secretary emphasize programs emergency preparedness and mine selected. Further information regarding and materials that target miners in emergency prevention for all submitting the grant application smaller mines, including training mine underground mines. Except for creating electronically is listed in Section IV.C., operators and miners on new MSHA very innovative educational material or Submission Date, Times, and Addresses. standards, high-risk activities, and other equipment, MSHA expects that renewal This solicitation consists of eight parts: • identified safety priorities. grants will focus primarily on training Part I provides background mine operators and miners. A renewal information on the Brookwood-Sago B. Grant Structures grant may include a request for creating grants. MSHA currently funds the • educational materials or equipment, but Part II describes the size and nature Brookwood-Sago grants annually for 12 the purpose of these grants is to provide of the anticipated awards. months of performance and requires an training for as many mine operators and • Part III describes the qualifications applicant to compete each year for the miners as possible. MSHA also expects of an eligible applicant. available funds. MSHA is identifying grantees with renewal grants to recruit • Part IV provides information on the these grants as ‘‘annual grants.’’ mine operators and miners for the application and submission process. MSHA is announcing the availability training, and conduct and evaluate the • Part V explains the review process of a renewal grant program structure. grant program on mine emergency and rating criteria that will be used to Under this new structure, MSHA will preparedness or mine emergency evaluate applications. award a grant eligible for two separate prevention. • Part VI provides award years of funding with two separate 12- For both programs, grantees are also administration information. month performance periods. MSHA is expected to conduct follow-up • Part VII contains MSHA contact identifying these grants as ‘‘renewal evaluations with the people who receive information. grants.’’ training in their programs. The

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00124 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47264 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

evaluation will focus on determining lobbying activities, is not eligible for a 4. Late Applications how effective their training was in grant award. See 2 U.S.C. 1611. Applications received after the either reducing hazards or improving B. Cost-Sharing or Matching deadline will not be reviewed unless it skills for the selected training topics or is determined to be in the best interest in improving the conditions in mines. Cost-sharing or matching of funds is of the Government. Grantees must also cooperate fully with not required for eligibility. The MSHA evaluators of their programs. leveraging of public or private resources IV. Application and Submission Information II. Award Information to achieve project sustainability, however, is highly encouraged and may A. Application Forms A. Award Amount for FY 2011 be awarded up to 10 application evaluation points. This announcement includes all MSHA is providing $1,000,000 total information and links needed to apply for both the FY 2011 annual and C. Other Eligibility Requirements for this funding opportunity. The full renewal Brookwood-Sago grants 1. Dun and Bradstreet Number (DUNS) application is available through the program and may award as many as 20 Grants.gov Web site http:// grants. The amount of each individual Under 2 CFR 25.200, every applicant www.grants.gov/ under ‘‘Apply for grant will be no less than $50,000.00 for for a Federal funding opportunity is Grants’’. The Catalog of Federal a 12-month performance period; and the required to include a DUNS number Domestic Assistance (CFDA) number maximum award for a 12-month with its application. The DUNS number needed to locate the appropriate performance period is $250,000. is a nine-digit identification number application for this opportunity is Applicants requesting less than $50,000 that uniquely identifies business 17.603. If an applicant has problems or more than $250,000 for a 12-month entities. An applicant’s DUNS number downloading the application package performance period will not be is to be entered into Block 8 of Standard from Grants.gov, contact Grants.gov considered for funding. Form (SF) 424. There is no charge for Contact Center at 1–800–518–4726 or by B. Period of Performance obtaining a DUNS number. To obtain a e-mail at [email protected]. DUNS number, call 1–866–705–5711 or B. Content and Form of the Application The period of performance will be 12 access the following Web site: http:// months from the date of execution of the fedgov.dnb.com/webform/ Each grant application must address grant documents awarding the funds. displayHomePage.do. mine emergency preparedness or mine This performance period must include After receiving a DUNS number, all emergency prevention for underground all necessary implementation and start- grant applicants must also register as a mines. The applicant must identify that up activities, as well as follow-up for vendor with the Central Contractor an application is for an annual or a performance. A timeline clearly Registration (CCR) through the Web site renewal grant. Applicants must submit detailing these required grant activities at http://www.ccr.gov or apply by phone a separate application for each topic and and their expected completion dates (1–888–227–2423). 2 CFR 25.200. Grant each type of grant. The application must must be included in the grant applicants must create a user account consist of three separate and distinct application. and then complete and submit the sections. The three required sections MSHA may approve a request for a online registration. Once you have are: • Section 1—Project Financial Plan one time no-cost extension to grantees completed the registration, it will take and Forms (No page limit). for an additional period of up to 12 three to five business days to process. • Section 2—Executive Summary months from the expiration date of the The applicant will receive an e-mail (Not to exceed two pages). annual award based on the success of notice that the registration is active. the project and other relevant factors. • Section 3—Technical Proposal (Not See 29 CFR 95.25 (e)(2). At the end of 2. Legal Rules Pertaining to Inherently to exceed 12 pages). Illustrative material the second year of funding for a renewal Religious Activities by Organizations can be submitted as an attachment. grant, MSHA may approve a request for That Receive Federal Financial The following are mandatory a no-cost extension for an additional Assistance requirements for each section. period of performance of up to 6 months The government generally is 1. Project Financial Plan and Forms based on the success of the project and prohibited from providing direct other relevant factors. This section contains the forms and Federal financial assistance for budget section of the application. The III. Eligibility Information inherently religious activities. See 29 Project Financial Plan will not count CFR Part 2, Subpart D. Grants under this A. Eligible Applicants against the application page limits. A solicitation may not be used for person with authority to bind the Applicants for the grants may be religious instruction, worship, prayer, applicant must sign the application and States and nonprofit (private or public) proselytizing, or other inherently forms. Applications submitted entities. Eligible entities may apply for religious activities. Neutral, non- electronically through Grants.gov do not funding independently or in partnership religious criteria that neither favor nor need to be signed manually; electronic with other eligible organizations. For disfavor religion will be employed in signatures will be accepted. partnerships, a lead organization must the selection of grant recipients and (a) Completed SF–424, ‘‘Application be identified. must be employed by grantees in the for Federal Assistance.’’ This form is Applicants other than States and selection of contractors and part of the application package on State-supported or local government- subcontractors. Grants.gov and is also available at supported institutions of higher 3. Non-Compliant Applications http://www.msha.gov. The SF–424 must education will be required to submit identify the applicant clearly and be evidence of nonprofit status, preferably Applications that are lacking any of signed by an individual with authority from the Internal Revenue Service. A the required elements or do not follow to enter into a grant agreement. Upon nonprofit entity as described in 26 the format prescribed in IV.B will not be confirmation of an award, the U.S.C. 501(c)(4), which engages in reviewed. individual signing the SF–424 on behalf

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00125 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47265

of the applicant shall be considered the Any leveraged resources should not (3) Effective control over and representative of the applicant. be listed on the SF–424 or SF–424A accountability for all funds, property, (b) Completed SF–424A, ‘‘Budget Budget Information Form, but must be and other assets. Information for Non Construction described in the budget narrative and in (4) Comparison of outlays with budget Programs.’’ This form is part of the the technical proposal of the application amounts. application package on Grants.gov and (as described in Part IV.B.3(d) of this (5) Written procedures to minimize is also available at http:// SGA). The amount of Federal funding the time elapsing between transfers of www.msha.gov. The project budget requested for the entire period of funds. should demonstrate clearly that the total performance must be shown on the SF– (6) Written procedures for amount and distribution of funds is 424 and SF–424A forms. Note: Grantees determining the reasonableness, sufficient to cover the cost of all major will be responsible for obtaining any allocability, and allowability of cost. project activities identified by the leveraged resources proposed in their (7) Accounting records, including cost applicant in its proposal, and must applications. Failure to do so may result accounting records that are supported comply with the Federal cost principles in the disallowance and required return by source documentation. and the administrative requirements set of funds in the amount of the proposed (h) Attachments. The application may forth in this SGA. (Copies of all leveraged resources. include attachments such as resumes of regulations that are referenced in this (d) Completed SF–424B, ‘‘Assurances key personnel or position descriptions, SGA are available online at http:// for Non-Construction Programs.’’ Each exhibits, information on prior www.msha.gov. Select ‘‘Education & applicant for these grants must certify government grants, and signed letters of Training,’’ click on ‘‘Courses,’’ then compliance with a list of assurances. commitment to the project. select ‘‘Brookwood-Sago Mine Safety This form is part of the application 2. Executive Summary Grants.’’) package on http://www.Grants.gov and The executive summary is a short For renewal grant applications, also is available at http:// one-to-two page abstract that succinctly applicants must include all the renewal www.msha.gov. summarizes the proposed project and grants information on the SF–424 forms. (e) Supplemental Certification provides information about the For example, if the applicant is applying Regarding Lobbying Activities Form. If applicant organization. (MSHA will for a renewal grant, the total amount of any funds have been paid or will be publish, as submitted, all grantees’ the grant might be $100,000, and each paid to any person for influencing or executive summaries on its Web site.) year’s funding could be $50,000. When attempting to influence an officer or The executive summary must include filling out the SF–424 Application for employee of any agency, a member of the following information: Congress, an officer or employee of Federal Assistance form, the proposed (a) Applicant. Provide the Congress, or an employee of a member project start date in Item No. 17 for organization’s full legal name and of Congress in connection with the renewal grants is 9/30/2011, and the address. end date is 9/29/2013. The estimated making of a grant or cooperative (b) Funding requested. List how much funding in Item No. 18 would be agreement, the applicant shall complete Federal funding is being requested. If $100,000. On the SF–424A Budget and submit SF–LLL, ‘‘Disclosure Form requesting a renewal grant, include the Information for Non-Construction to Report Lobbying,’’ in accordance with total for the two years of funding and Programs, the applicant would provide its instructions. This form is part of the list each year’s requested funding levels. a total of $50,000 for the first-year application package on http:// If the organization is contributing non- funding and $50,000 for the second-year www.Grants.gov and is also available at Federal resources, also list the amount funding. http://www.msha.gov. Select of non-Federal resources and the source (c) Budget Narrative. The applicant ‘‘Education & Training,’’ click on of the funds. must provide a concise narrative ‘‘Courses,’’ then select ‘‘Brookwood- (c) Grant Topic. List the grant topic explaining the request for funds. The Sago Mine Safety Grants.’’ and the location and number of mine budget narrative should separately (f) Non-profit status. Applicants must operators and miners that the attribute the Federal funds and provide evidence of non-profit status, organization has selected to train or leveraged resources to each of the preferably from the Internal Revenue describe the training materials or activities specified in the technical Service (IRS), if applicable. (This equipment to be created with these proposal and it should discuss precisely requirement does not apply to State and funds. how any administrative costs support local government-supported institutions (d) Program Structure. Identify the the project goals. Indirect cost charges, of higher education.) type of grant: an annual or a renewal which are considered administrative (g) Accounting System Certification. grant. costs, must be supported with a copy of An organization that receives less than (e) Summary of the Proposed Project. an approved Indirect Cost Rate $1 million annually in Federal grants Write a brief program summary of the Agreement. Indirect Costs are those must attach a certification stating that proposed project. This summary must costs that are not readily identifiable the organization (directly or through a identify the key points of the proposal, with a particular cost objective but designated qualified entity) has a including an introduction describing the nevertheless are necessary to the general functioning accounting system that project activities and the expected operation of an organization, e.g., meets the criteria below. The results. If requesting a renewal grant, personnel working in accounting. certification should attest that the also provide a summary of the key Administrative costs may not exceed organization’s accounting system points of the second-year’s activities 15% of the total grant budget. provides for the following: and expected outcomes. If applicable, the applicant must (1) Accurate, current and complete provide a statement about its program disclosure of the financial results of 3. Technical Proposal income. Program income is gross each Federally sponsored project. The technical proposal must income earned by the grantee directly (2) Records that identify adequately demonstrate the applicant’s capabilities generated by a supported activity, or the source and application of funds for to plan and implement a project or earned as a result of the award. Federally sponsored activities. create educational materials or

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00126 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47266 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

equipment to meet the objectives of this prevention for underground mines. and their relationship with the Agency’s solicitation. MSHA’s focus for these MSHA has two program goals, described program goals and performance grants is on training mine operators and below, that will be considered measures for the Brookwood-Sago miners and developing training indicators of the success of the program grants. materials for mine emergency as a whole. The following table explains preparedness and mine emergency the types of data grantees must provide

Data grantee provides each 12-month MSHA’s program goals MSHA’s performance measures performance period

1. Agency creates more effective training and Increase the number of trainers trained ...... Number of training events during the period. improves safety. Increase the number of mine operators and Number of trainers trained. miners trained. Provide quality training with clearly stated Number of mine operators and miners trained goals and objectives for improving safety. during the current reporting period. Number of course days of training provided to industry during the current reporting period. Pre-test and post-test results of trainees. Course evaluations of trainer and training ma- terials. A description of the extent to which others will replicate (i.e., adopt or adapt) or institu- tionalize and continue the training or edu- cational programs after grant funding ends. 2. Agency creates training materials and im- Increase number of quality educational mate- Pre-test and post-test results of the training proves safety. rials developed. materials. Provide quality training materials with clearly Evaluation of training materials to include the stated goals and objectives for improving target audience, statement of goals and ob- safety. jectives, learning level, instructions for using, additional material requirements, secondary purposes, adult learning prin- ciples and usability in the mine training en- vironment. Develop training materials that are reproduc- A description of the extent to which others will ible. replicate (i.e., adopt or adapt) the funded training materials.

The technical proposal narrative is Federal funds they receive for similar applicant will recruit mine operators not to exceed 12 single-sided, double- activities. and/or miners for the training. (Note: spaced pages, using 12-point font, and (2) Quality of the Project Design. Any commercially developed training must contain the following sections: MSHA requires that each applicant materials the applicant proposes to use Program Design, Overall Qualifications include a 12-month workplan that in its training must undergo an MSHA of the Applicant, Output and correlates with the grant project period review before being used.) Evaluation, and Leveraging of Funds. that will begin September 30, 2011, and (iii) Quarterly Projections. For Any pages over the 12-page limit will end September 29, 2012. Renewal grant training and other quantifiable not be reviewed. Major sections and applicants must also include a second activities, estimate the quantities sub-sections of the proposal should be 12-month workplan covering the period involved. For example, estimate how divided and clearly identified. MSHA from September 30, 2012, and ending many classes will be conducted and will review and rate the technical September 29, 2013. An outline of how many mine operators and miners proposal in accordance with the specific items required in the workplan will be trained each quarter of the grant selection criteria specified in Part V. follows. (grant quarters match calendar quarters, i.e., January to March, April to June) and (a) Program Design (i) Plan Overview. Describe the plan for grant activities and the anticipated also provide the training number totals (1) Statement of Problem/Need for results. The overall plan will describe for the full year. Quarterly projections Funds. Applicants must identify a clear such things as the development of are used to measure the actual and specific need for proposed training materials, the training content, performance against the plan. activities. They must identify whether recruiting of trainees, where or how Applicants planning to conduct a train- they are providing a training program or training will take place, and the the-trainer program should estimate the creating training materials or both. They anticipated benefits to mine operators number of individuals to be trained also must identify whether their and miners receiving the training. during the grant period by those who application is for an annual or a renewal (ii) Activities. Break the overall plan received the train-the-trainer training. Brookwood-Sago grant. Applicants also down into activities or tasks. For each These second tier training numbers must identify the number of individuals activity, explain what will be done, who should be included only if the that will benefit from their training and will do it, when it will be done, and the organization is planning to follow up education program; this should include anticipated results of the activity. For with the trainers to obtain this data identifying the type of underground training, discuss the subjects to be during the grant period. mines, the geographic locations, and the taught, the length of the training (iv) Materials. Describe each number of mine operators and miners. sessions, and training locations educational material, including any Applicants must also identify other (classroom/worksites). Describe how the piece of equipment (e.g., mine

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00127 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47267

simulator) to be produced under the experience relevant to the opportunity contributions obtained from sources grant. Provide a timetable for offered in the application. Such other than the Federal government developing and producing the material. experience could include staff members’ devoted to advancing the strategies The timetable must include provisions experience with other organizations. described in the applicant’s proposal. for an MSHA review of draft and (3) Program Experience. Describe the Applicants must include a description camera-ready products or evaluation of organization’s experience conducting of any non-Federal contribution or equipment. MSHA must review and the proposed mine training program or commitments, including the source of approve training materials or equipment other relevant experience. Include funds and the estimated amount. for technical accuracy and suitability of program specifics such as program title, content before use in the grant program. numbers trained, and duration of C. Submission Date, Times, and Whether or not an applicant’s project is training. If creating training materials, Addresses to develop training materials only, the include the title of other materials The closing date for receipt of applicant should provide an overall developed. Nonprofit organizations, applications under this announcement plan that includes time for MSHA to including community-based and faith- is August 31, 2011 (no later than 11:59 review any materials produced. based organizations that do not have p.m. EDST). Grant applications must be prior experience in mine safety may submitted electronically through the (b) Overall Qualifications of the partner with an established mine safety Grants.gov Web site. The Grants.gov site Applicant organization to acquire safety expertise. provides all the information about (1) Applicant Background. Describe (4) Staff Experience. Describe the submitting an application electronically the applicant, including its mission, and qualifications of the professional staff through the site as well as the hours of a description of its membership, if any. you will assign to the program. Attach operation. Interested parties can locate Provide an organizational chart (the resumes of staff already employed the downloadable application package chart may be included as a separate (resumes will not count towards the by the CFDA number 17.603. page which will not count toward the page limit). If some positions are vacant, Applications received by Grants.gov page limit). Identify the following: include position descriptions and are electronically date and time (i) Project Director. The project minimum hiring qualifications instead stamped. An application must be fully director is the person who will be of resumes. Staff should have, at a uploaded and submitted (and must be responsible for the day-to-day operation minimum, mine safety experience, date and time stamped by the and administration of the program. training experience, or experience Grants.gov system) before the Provide the name, title, street address working with the mining community. application deadline date. Once an and mailing address (if it is different (c) Outputs and Evaluations. There interested party has submitted an from the organization’s street address), are two types of evaluations that must application, Grants.gov will notify the telephone and fax numbers, and e-mail be conducted. First, describe the interested party with an automatic address of the project director. methods, approaches, or plans to notification of receipt that contains a (ii) Certifying Representative. The evaluate the training sessions and/or Grants.gov tracking number. MSHA certifying representative is the official in training materials to meet the data then will retrieve the application from the organization who is authorized to requirements listed in the table above. Grants.gov and send a second enter into grant agreements. Provide the Second, describe plans to assess the notification to the interested party by name, title, street address and mailing long-term effectiveness of the training e-mail. address (if it is different from the materials and/or training conducted. organization’s street address), telephone The type of training given will D. Intergovernmental Review and fax numbers, and e-mail address of determine whether the evaluation The Brookwood-Sago grants are not the certifying representative. should include a process-related subject to Executive Order 12372, (2) Administrative and Program outcome or an impact-related outcome ‘‘Intergovernmental Review of Federal Capability. Briefly describe the or both. This will involve following up Programs.’’ MSHA, however, reminds organization’s functions and activities, with an evaluation, or on-site review, if applicants that if they are not operating i.e., the applicant’s management and feasible, of miners trained to find out MSHA-approved State training grants, internal controls. Relate this description what changes were made to abate they should contact the State grantees of functions to the organizational chart. hazards and improve workplace and coordinate any training or If the applicant has received within the conditions, or to incorporate the educational program in order not to last five years any other government training in the workplace, or both. duplicate any training or educational (Federal, State or local) grant funding, For training materials, include an program offered. Information about each the application must have, as an evaluation from individuals on the state grant and the entity operating the attachment (which will not count clarity of the presentation, organization, state grant is provided online at: towards the page limit), information and the information provided on the http://www.msha.gov/TRAINING/ regarding these previous grants. This subject matter and whether they would STATES/STATES.asp. information must include each continue to use the training materials. organization for which the work was Include timetables for follow-up and for E. Funding Restrictions done and the dollar value of each grant. submitting a summary of the assessment MSHA will determine whether costs If the applicant does not have previous results to MSHA. are allowable under the applicable grant experience, it may partner with an For renewal grants, applicants must Federal cost principles and other organization that has grant experience to describe how the program will address conditions contained in the grant award. manage the grant. If the organization the feedback from its or MSHA’s uses this approach, the management evaluations to improve its training 1. Allowable Costs organization must be identified and its program, materials (including Grant funds may be spent on grant program experience discussed. equipment), or both during the second conducting training, conducting Lack of past experience with Federal year. outreach and recruiting activities to grants is not a determining factor, but an (d) Leveraging of Funds. Leveraged increase the number of mine operators applicant should show a successful resources are cash or in-kind and miners participating in the program,

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00128 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47268 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

developing educational materials, and The proposed training and education 2. Budget—20 Points Total on necessary expenses to support these program or training materials must (a) The budget presentation is clear activities. Allowable costs are address either mine emergency and detailed. (15 points) determined by the applicable Federal preparedness or mine emergency • The budgeted costs are reasonable. cost principles identified in Part VI.B. prevention. • No more than 15% of the total (b) Quality of the Project Design. (25 Program income earned during the budget is for administrative costs. points) award period shall be retained by the • The budget complies with Federal (1) The proposal to train mine recipient, added to funds committed to cost principles (which can be found in operators and/or miners clearly the award, and used for the purposes the applicable Office of Management estimates the number to be trained and and under the conditions applicable to and Budget (OMB) Circulars and with clearly identifies the types of mine the use of the grant funds. MSHA budget requirements contained operators and miners to be trained. 2. Unallowable Costs (2) If the proposal contains a train-the- in the grant application instructions). (b) The application demonstrates that Grant funds may not be used for the trainer program, the following the applicant has strong financial following activities under this grant information must be provided: management and internal control program: • What ongoing support the grantee systems. (5 points) (a) Any activity inconsistent with the will provide to new trainers; goals and objectives of this SGA; • The number of individuals to be 3. Overall Qualifications of the (b) Training on topics that are not trained as trainers; Applicant—25 Points Total • The estimated number of courses to targeted under this SGA; (a) The applicant has administered, or (c) Duplicating training or services be conducted by the new trainers; • The estimated number of students will work with an organization that has offered by MSHA or any MSHA State administered, a number of different grant under section 503 of the Federal to be trained by these new trainers and a description of how the grantee will Federal or State grants in the past five Mine Safety and Health Act of 1977; years. The applicant may demonstrate (d) Purchasing any equipment unless obtain data from the new trainers documenting their classes and student this experience by having project staff pre-approved and in writing by the that has experience administering MSHA grant officer; numbers if conducted during the grant period. Federal and/or State grants in the past (e) Administrative costs that exceed five years. (6 points) 15% of the total grant budget; and (3) The work plan activities and training are described. (b) The applicant applying for the (f) Any pre-award costs. • grant demonstrates experience with Unallowable costs also include any The planned activities and training are tailored to the needs and levels of mine safety teaching or providing mine cost determined by MSHA as not safety educational programs. Applicants allowed according to the applicable cost the mine operators and miners to be trained. Any special constituency to be that do not have prior experience in principles or other conditions in the providing mine safety training to mine grant. served through the grant program is described, e.g., smaller mines, limited operators or miners may partner with an V. Application Review Information English proficiency miners etc. established mine safety organization to acquire mine safety expertise. (13 A. Evaluation Criteria Organizations proposing to develop materials in languages other than points) MSHA will screen all applications to English also will be required to provide • Project staff has experience in mine determine whether all required proposal an English version of the materials. safety, the specific topic chosen, or in elements are present and clearly • If the proposal includes developing training mine operators and miners. identifiable. Those that do not comply training materials, the work plan must • Project staff has experience in with mandatory requirements will not include time during development for recruiting, training, and working with be evaluated. The technical panels will MSHA to review the educational the population the organization review grant applications against the materials for technical accuracy and proposes to serve. criteria listed below on the basis of 100 suitability of content. If commercially • Applicant has experience in maximum points for one-year grants and developed training products will be designing and developing mine safety 20 maximum points for the renewal used for a training program, applicants training materials for a mining program. portion of the grant applications. Up to should also plan for MSHA to review • Applicant has experience in 10 additional points may be given for the materials before using the products managing educational programs. leveraging non-Federal resources. in their grant programs. (c) Applicant demonstrates internal MSHA will evaluate the applications • The utility of the educational control and management oversight of for annual grants and the annual portion materials is described. the project. (6 points) of the two-year applications using the • The outreach or process to find 4. Outputs and Evaluations—15 Points first five categories below. From this mine operators, miners or trainees to Total group, MSHA will select applicants to receive the training is described. receive one-year funding. From these (c) Replication. The extent to which a The proposal should include selectees, MSHA will review those that project is expected to be replicated and provisions for evaluating the applied for option year (renewable) the potential for the project to serve a organization’s progress in grants against the criteria listed in variety of mine operators, miners or accomplishing the grant work activities category 6 on the basis of 20 maximum mine sites. (4 points) and accomplishments, evaluating points. Please note that MSHA may offer (d) Innovativeness. The originality training sessions, and evaluating the an annual grant to applicants that may and uniqueness of the approach used. (3 program’s effectiveness and impact to not be selected for renewable grants. points) determine if the safety training and (e) MSHA’s Performance Goals. The services provided resulted in workplace 1. Program Design—40 Points Total extent the proposed project will change and improved workplace (a) Statement of Problem/Need for contribute to MSHA’s performance conditions. The proposal should Funds. (3 points) goals. (5 points) include a plan to follow up with

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00129 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47269

trainees to determine the impact the VI. Award Administration Information specifically approved, MSHA’s acceptance of a proposal or MSHA’s program has had in abating hazards and A. Award Process reducing miner injuries and illnesses. award of Federal funds to sponsor any Organizations selected as potential program does not constitute a waiver of 5. Leveraged Resources—10 Points Total grant recipients will be notified by a any grant requirement or procedure. For representative of the Deputy Assistant example, if an application identifies a MSHA will award up to 10 additional Secretary, usually the Grant Officer or rating points to applications that specific sub-contractor to provide his staff. An applicant whose proposal certain services, the MSHA award does include non-Federal resources that is not selected will be notified in expand the size and scope of project- not provide a basis to sole-source the writing. The fact that an organization procurement (to avoid competition). related activities. To be eligible for the has been selected as a potential grant additional points, the applicant must recipient does not necessarily constitute C. Special Program Requirements list the resources, the nature of approval of the grant application as 1. MSHA Review of Educational programmatic activities anticipated and submitted (revisions may be required). Materials any partnerships, linkages, or Before the actual grant award, MSHA coordination of activities, cooperative may enter into negotiations with the MSHA will review all grantee- funding, etc., including the monetary potential grant recipient concerning produced educational and training value of such contributions. such matters as program components materials for technical accuracy and (including the type of grant), staffing suitability of content during 6. Renewal Grants: Second-Year and funding levels, and administrative development and before final Request—20 Points Total systems. If the negotiations do not result publication. MSHA also will review training curricula and purchased A renewal proposal must include a in an acceptable submittal, the Deputy training materials for technical accuracy description of the project design and Assistant Secretary reserves the right to and suitability of content before the budget for the second-year funding. The terminate the negotiations and decline materials are used. Grantees developing applicant must also describe how it will to fund the proposal. training materials must follow all obtain input and feedback from first- B. Administrative and National Policy copyright laws and provide written year training recipients and how it will Requirements certification that their materials are free improve its program based on its or All grantees will be subject to from copyright infringements. MSHA evaluations. applicable Federal laws and regulations When grantees produce training B. Review and Selection Process (including provisions of appropriations materials, they must provide copies of law) and applicable OMB Circulars. The completed materials to MSHA before A technical panel will rate each grants awarded under this competitive the end of the grant period. Completed complete application against the criteria grant program will be subject to the materials should be submitted to MSHA described in this SGA. One or more following administrative standards and in hard copy and in digital format (CD– applicants may be selected as grantees provisions, if applicable: ROM/DVD) for publication on the on the basis of the initial application • 29 CFR part 2, subpart D, Equal MSHA Web site. Two copies of the submission or a minimally acceptable Treatment for Religious Organizations. materials must be provided to MSHA. • number of points may be established. 29 CFR parts 31, 32, 35 and 36, Acceptable formats for training MSHA may request final revisions to the Nondiscrimination. • materials include Microsoft XP Word, applications, and then evaluate the 29 CFR part 93, Restrictions on PDF, PowerPoint, and any other format Lobbying. revised applications. MSHA may • agreed upon by MSHA. consider any information that comes to 29 CFR part 94, Drug-free 2. License its attention in evaluating the Workplace. • 29 CFR part 95, Uniform Grant applications. As listed in 29 CFR 95.36, the Requirements for Nonprofit The panel recommendations are Department of Labor reserves a royalty- Organizations. free, nonexclusive, and irrevocable right advisory in nature. The Deputy • 29 CFR parts 96 and 99, Audits. Assistant Secretary of Labor for Mine • 29 CFR part 97, Uniform Grant to reproduce, publish, or otherwise use for Federal purposes any work produced Safety and Health (Deputy Assistant Requirements for States. under a grant, and to authorize others to Secretary of Policy) will make a final • 29 CFR part 98, Debarment and do so. Grantees must agree to provide selection determination based on what Suspension. the Department of Labor a paid-up, is most advantageous to the government, • 2 CFR part 25, Universal Identifier nonexclusive, and irrevocable license to considering factors such as panel and Central Contractor Registration. • reproduce, publish, or otherwise use for findings, geographic presence of the 2 CFR part 170, Reporting Federal purposes all products applicants or the areas to be served, Subawards. • developed, or for which ownership was Agency priorities, and the best value to 2 CFR part 175, Award Term for purchased, under an award. Such the government, cost and other factors. Trafficking in Persons. • 2 CFR part 220, Cost Principles for products include, but are not limited to, The Deputy Assistant Secretary’s Educational Institutions. curricula, training models, technical determination for award under this SGA • 2 CFR part 225, Cost Principles for assistance products, and any related is final. State and Local Governments. materials. Such uses include, but are not • C. Anticipated Announcement and 2 CFR part 230, Cost Principles for limited to, the right to modify and Award Dates Other Nonprofit Organizations. distribute such products worldwide by • Federal Acquisition Regulation any means, electronic, or otherwise. Announcement of these awards is (FAR) Subpart 31.2, Cost Principles for expected to occur by September 17, Commercial Organizations. (Codified at 3. Acknowledgement on Printed 2011. The grant agreement will be 48 CFR Subpart 31.2.) Materials signed no later than September 30, Administrative costs for these grants All approved grant-funded materials 2011. may not exceed 15%. Unless developed by a grantee shall contain the

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00130 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47270 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

following disclaimer: ‘‘This material should include the current grant that is linked or linkable to an was produced under grant number progress against the overall grant goals. individual, such as medical, XXXXX from the Mine Safety and Between reporting dates, the grantee educational, financial, and employment Health Administration, U.S. Department shall immediately inform MSHA of information.1 of Labor. It does not necessarily reflect significant developments or problems Executive Summaries will be the views or policies of the U.S. affecting the organization’s ability to published in the form originally Department of Labor, nor does mention accomplish the work. submitted, without any redactions. of trade names, commercial products, or (c) Final Reports. At the end of each However, in order to ensure that organizations imply endorsement by the 12-month performance period, each confidential information is properly U.S. Government.’’ grantee must provide a final financial protected from disclosure when DOL When issuing statements, press report, a summary of its technical posts the winning Technical Proposals, releases, request for proposals, bid project reports, and an evaluation applicants whose technical proposals solicitations, and other documents report. In addition to these will be posted will be asked to submit describing projects or programs funded requirements, in its second-year final a second redacted version of their in whole or in part with Federal money, report, renewal grantees must provide Technical Proposal, with proprietary, all grantees receiving Federal funds the total outputs for the two years, a list confidential commercial/business, and must clearly state: of best practices used, and any changes personally identifiable information (a) The percentage of the total costs of made as a result of evaluation feedback. redacted. All non-public information the program or project that will be H. Freedom of Information about the applicant’s staff should be financed with Federal money; removed as well. Any information submitted in The Department will contact the (b) The dollar amount of Federal response to this SGA will be subject to applicants whose technical proposals financial assistance for the project or the provisions of the Freedom of will be published by letter or e-mail, program; and Information Act, as appropriate. and provide further directions about (c) The percentage and dollar amount I. Transparency in the Grant Process how and when to submit the redacted of the total costs of the project or version of the Technical Proposal. program that will be financed by non- DOL is committed to conducting a Submission of a redacted version of the governmental sources. transparent grant award process and Technical Proposal will constitute 4. Use of U.S. Department of Labor publicizing information about the permission by the applicant for DOL to (USDOL) and MSHA Logos program’s performance. Posting grant post that redacted version. If an applications on public Web sites is a applicant fails to provide a redacted MSHA may allow the USDOL or the means of promoting and sharing version of the Technical Proposal, DOL MSHA logo to be applied to the grant- innovative ideas. For this grant will publish the original Technical funded material including posters, competition, we will publish the Proposal in full, after redacting videos, pamphlets, research documents, Executive Summary as required by this personally identifiable information. national survey results, impact solicitation for all applications on the (Note that the original, unredacted evaluations, best practice reports, and Department’s Web site or similar version of the Technical Proposal will other publications. Before the DOL or location. Additionally, we will publish remain part of the complete application MSHA logos are used on grant-funded a version of the Technical Proposal package, including an applicant’s materials, the grantees must consult required by this solicitation, for all proprietary and confidential with MSHA. In no event shall the those applications that are awarded information and any personally USDOL or the MSHA logo be placed on grants, on the Department’s Web site or identifiable information.) any item until MSHA has given the a similar location. No other parts of or Applicants are encouraged to grantee written permission to use either attachments to the application will be maximize the grant application logo on the item. published. The Technical Proposals and information that will be publicly 5. Reporting Executive Summaries will not be disclosed, and to exercise restraint and published until after the grants are redact only information that truly is Grantees are required by awarded. In addition, information about proprietary, confidential commercial/ Departmental regulations to submit grant progress and results may also be business information, or capable of financial and project reports, as made publicly available. identifying a person. The redaction of described below, each calendar quarter. DOL recognizes that grant entire pages or sections of the Technical All reports are due no later than 30 days applications sometimes contain Proposal is not appropriate, and will not after the end of the calendar quarter and information that an applicant may be allowed, unless the entire portion shall be submitted to MSHA. Grantees consider proprietary or business merits such protection. Should a also are required to submit final reports confidential information, or may dispute arise about whether redactions 90 days after the end of the grant period. contain personally identifiable are appropriate, DOL will follow the (a) Financial Reports. The grantee information. Information is considered procedures outlined in the Department’s shall submit financial reports on a proprietary or confidential commercial/ Freedom of Information Act (FOIA) quarterly basis. business information when it is not regulations (29 CFR part 70). (b) Technical Project Reports. After usually disclosed outside your If DOL receives a FOIA request for signing the agreement, the grantee shall organization and when its disclosure is your application, the procedures in submit technical project reports to likely to cause substantial competitive DOL’s FOIA regulations for responding MSHA at the end of each calendar harm. Personally identifiable to requests for commercial/business quarter. Technical project reports information is information that can be information submitted to the provide both quantitative and used to distinguish or trace an qualitative information and a narrative individual‘s identity, such as name, 1 Memorandums 07–16 and 06–19. GAO Report assessment of performance for the social security number, date and place 08–536, Privacy: Alternatives Exist for Enhancing Protection of Personally Identifiable Information, preceding three-month period. See 29 of birth, mother‘s maiden name, or May 2008, http://www.gao.gov/new.items/ CFR 95.51 and 29 CFR 97.40. This biometric records, or other information d08536.pdf.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00131 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47271

government will be followed, as well as of this grant. Unless otherwise I. Foundations of Scientific Integrity In all FOIA exemptions and procedures. 29 specifically noted in this Government CFR 70.26. Consequently, it is possible announcement, information submitted NSF works to maintain a culture of that application of FOIA rules may in the respondent’s application is not scientific integrity. Although NSF does result in release of information in considered to be confidential. not employ government scientists to response to a FOIA request that an Authority: 30 U.S.C. 965. conduct intramural research on behalf applicant redacted in its ‘‘redacted of the federal government, we do fund copy.’’ Dated: July 29, 2011. Patricia W. Silvey, basic science and engineering research and education through awards to VII. Agency Contacts Deputy Assistant Secretary for Operations, Any questions regarding this Mine Safety and Health. colleges and universities through the country. Consequently, we strongly solicitation for grant applications (SGA [FR Doc. 2011–19710 Filed 8–1–11; 11:15 am] believe that research results should be 11–3BS) should be directed to Robert BILLING CODE 4510–43–P Glatter at [email protected] or at objective and not influenced by a 202–693–9570 (this is not a toll-free potential awardee’s financial interests or number) or the Grant Officer, Carl affiliations. We are one of only two Campbell at [email protected] or at NATIONAL SCIENCE FOUNDATION agencies within the Federal Government 202–693–9839 (this is not a toll-free that has an investigator conflict-of- number). MSHA’s Web page at http:// Implementation of Scientific Integrity interest policy that requires our grantee www.msha.gov is a valuable source of Principles: Draft Plan for Public institutions to (1) Collect financial background for this initiative. Comment disclosure reports from investigators; (2) review financial disclosure reports; and VIII. Office of Management and Budget AGENCY: National Science Foundation. (3) manage, reduce, or eliminate any Information Collection Requirements ACTION: National Science Foundation conflicts of interest prior to the This SGA requests information from (NSF) Implementation of Scientific expenditure of any award funds. applicants. This collection of Integrity Principles: Draft Plan for In addition to ensuring research information is approved under OMB Public Comment. results are not influenced by conflicts of Control No. 1225–0086 (expires interest, NSF has a thorough and November 30, 2012). SUMMARY: On March 9, 2009, President rigorous conflict of interest merit review In accordance with the Paperwork Obama issued a Memorandum for the process. And we expect the scientists Reduction Act of 1995, no persons are Heads of Executive Departments and and engineers at NSF who conduct our required to respond to a collection of Agencies on Scientific Integrity. Shortly merit review process and make funding information unless such collection thereafter the Office of Science and decisions to adhere to the highest displays a valid OMB control number. Technology Policy (OSTP) led an standards of ethical conduct. This Public reporting burden for the grant interagency task group to develop an includes civil service employees and application is estimated to average 20 implementation strategy, and NSF was contractors; visiting scientists, hours per response, for reviewing represented on the task group. On engineers, and educators; and those instructions, searching existing data December 17, 2010, the OSTP Director working at NSF under the sources, gathering and maintaining the issued a Memorandum with Intergovernmental Personnel Act. data needed, and completing and implementation guidance (for copies of NSF’s internal procedures (http:// reviewing the collection of information. both memoranda, see: http:// www.nsf.gov/publications/pub_summ. Each recipient who receives a grant www.whitehouse.gov/administration/ jsp?ods_key=manual15) summarize the award notice will be required to submit eop/ostp/library/scientificintegrity). various government conflicts rules that nine progress reports to MSHA. MSHA NSF is fully committed to its efforts guide NSF staff. estimates that each report will take to ensure that our processes will NSF staff who report information on approximately five hours to prepare. advance the goals articulated in the potential violations of rules and Send comments regarding the burden Memoranda. This report summarizes regulations are protected from estimated or any other aspect of this NSF practices both current and planned retaliation; NSF participates in the collection of information, including to maintain and enhance scientific Office of Special Counsel’s (OSC) suggestions for reducing this burden, to integrity across our S&E community. 2302(c) Certification Program which the OMB Desk Officer for MSHA, Office The report is organized according to the allows federal agencies to meet the of Management and Budget Room major headings and topics of the statutory obligation to inform their 10235, Washington DC 20503 and December 2010 OSTP Memorandum. workforces about the rights and MSHA, electronically to Robert Glatter remedies available to them under the at [email protected] or the Grant DATES: Comments on the report are Whistleblower Protection Act (WPA) Officer, Carl Campbell at welcome before September 6, 2011. and related civil service laws. (See: [email protected] or by mail to Comments will be useful in shaping the http://www.nsf.gov/od/odi/nofear/ agency’s implementation. Please send Robert Glatter, Room 2102, 1100 Wilson _ notice.jsp and http://www.osc.gov/ Boulevard, Arlington, Virginia 22209. comments to siip [email protected]. outreachAgenciesCertified.htm.) This information is being collected for All comments received before the close Similarly, NSF awardees, whether the purpose of awarding a grant. The of the comment period will be available current or prospective, also are expected information collected through this for public inspection, including any to adhere to high standards of ethical ‘‘Solicitation for Grant Applications’’ personally identifiable or confidential conduct. All allegations of research will be used by the Department of Labor business information that is included. misconduct are promptly reported to the to ensure that grants are awarded to the Because they will be made public, Office of the Inspector General (OIG). applicant best suited to perform the comments should not include any (See: http://www.nsf.gov/oig/ functions of the grant. Submission of sensitive information. misconscieng.jsp; 45 CFR part 689 this information is required in order for FOR FURTHER INFORMATION CONTACT: http://law.justia.com/us/cfr/title45/ the applicant to be considered for award [email protected]. 45cfr689_main_02.html).

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00132 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47272 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

NSF awardees are also subject to the coordinate media and public relations • Review drafts of press releases responsible conduct of research activities. A principal goal of public written by staff from the public affairs requirement of the America COMPETES affairs is to help NSF most efficiently office both for their format and non- Act of 2007 (Pub. L. 110–69). In achieve its agency mission through scientific content, as well as for the accordance with Section 7009, NSF policy making based on sound and accuracy of scientific information being requires awardees to provide objective science. communicated; and appropriate training and oversight in the • Work with the public affairs office responsible and ethical conduct of Media Policy: Rights to review presentations or news research to undergraduates, graduate NSF-funded scientists and staff have conferences for their format and content students, and postdoctoral researchers the fundamental right to express their to assure the accuracy of scientific who will be supported by NSF to personal views, provided they specify information being communicated. conduct research. (For more information that they are not speaking on behalf of, NSF’s public affairs officers should: on NSF’s implementation of Section or as a representative of, the agency but • Respond to all initial media 7009, please see http:// rather in their private capacity. So long inquiries as soon as possible, but edocket.access.gpo.gov/2009/E9– as this disclaimer is made, the employee seeking to respond within 30 minutes 19930.htm.) is permitted to mention his or her whenever possible; Facilitating the free flow of scientific institutional affiliation and position if • Do all they can to help reporters get and technological information and this has helped inform his or her views the appropriate information needed for maintaining open communication are on the matter. an article; critical to NSF. The Foundation Employees have the right to review, • Know the reporter’s deadline to participates in the Administration’s approve, and comment publicly on the ensure timely response; Open Government Initiative (http:// final version of any proposed • Provide contact information where www.nsf.gov/open). Through this publication that significantly relies on they will be available, even after hours, initiative, NSF publishes high-value their research, identifies them as an on weekends, and on holidays; datasets such as information on author or contributor, or purports to • Draft press releases and/or other Freedom of Information Act requests, represent their scientific opinion. multimedia products whenever Graduate Research Fellowship Award warranted; recipients, abstracts of all funded NSF Media Policy: Responsibilities • Ensure a timely turnaround on awards, and NSF funding rates. Another NSF’s public affairs office is press releases (within one week or less); way that NSF facilitates the free flow of responsible for: • Develop (or coordinate the information is through Research.gov • promoting media attention on development of) talking points in (http://www.research.gov), a portal that important scientific and institutional collaboration with the relevant experts provides information on research developments; for the release of scientific papers and spending and results. Research.gov • coordinating and facilitating contact other agency products; and publishes summaries of results between journalists and the requested • Assure agency compliance with the supported by NSF. For awards made agency staff; No Fear Act (a federal law that holds effective January 2010, the Foundation • providing both reporters and agencies accountable for violations of requires investigators to submit a brief scientists with timely, accurate, and employee protection laws) by informing summary, prepared specifically for the professional media assistance; and employees of their rights under federal public, on the nature and outcomes of • providing draft press releases or anti-discrimination and whistleblower their NSF-funded award (See Award & other public statements to agency protection laws. Administration Guide, Chapter II: http:// scientists whose work is included, to Media Policy: Media Coverage www.nsf.gov/pubs/policydocs/ assure the accuracy of scientific pappguide/nsf11001/aag_2.jsp.) information being communicated. In the spirit of openness, media NSF employees are responsible for representatives should be granted free II. Public Communications working with the agency’s public affairs access to open meetings of NSF advisory The Office of Legislative and Public staff to make significant research committees, open sessions of the Affairs (OLPA) is the authorized news developments accessible and National Science Board meetings, and media liaison for NSF. Within OLPA, comprehensible to the public. other meetings open to the public and the Public Affairs staff works to promote NSF employees are responsible for the convened by NSF, as well as permission science, engineering and education accuracy and integrity of their to reasonably use tape recorders, research coverage in mainstream and communications and should not cameras, and electronic equipment for targeted media, facilitating the timely represent the agency on issues of broadcast purposes in these public release of accurate information. The politics or policy without prior approval meetings. overriding goal is openness and from the public affairs office. The public affairs officer coordinating accessibility. In this section, NSF a meeting may be present, or consulted, Media Policy: Media and Public proposes a revised media policy as to undertake all responsibilities of a Interactions follows: news media nature, including but not To help NSF public affairs best fulfill restricted to necessary physical Media Policy: Purpose its responsibilities, agency employees arrangements. This document establishes NSF’s should: It shall be the responsibility of the media policy governing media • Keep the public affairs office public affairs office to cooperate fully communications including advisories, informed of any media interest or with and accede to all reasonable press releases, statements, interviews, potential for interest in their work; requests from news media news conferences, and other related • Notify the public affairs office of representatives. In instances where media contacts. Federal public affairs impending media contacts and provide conflicts or misunderstandings may offices have been established to the public affairs office with a recap of arise from the expressed views, wishes, facilitate the active dissemination of the non-confidential aspects of the or demands on the part of news media agency research results and to media conversation afterward; representatives, such matters should be

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00133 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47273

referred at once to the head of NSF’s affairs office works with university and We encourage you to make use of Office of Legislative and Public Affairs institution public information offices to resources available on our Web site. for resolution. generate and distribute content. Images and video in our press releases The head of NSF’s Office of and Discovery feature stories are Types of Dissemination Legislative and Public Affairs shall generally available for your use. Credit exercise full authority and assume NSF disseminates information information and any restrictions on use responsibility for all decisions involving through a wide range of methods, using will be listed with the image or video. the news media and related activity. more than one medium for the same Our Multimedia Gallery at http:// information. In light of the Paperwork www.nsf.gov/news/mmg/ offers images, Media Policy: Scope Reduction Act of 1995, NSF strides to videos and audio files, and is searchable Below are examples of the types of publish most of its print products in by topic. Remember to check for credit information that NSF considers within electronic, rather than paper, format. information and any restrictions on use. and outside the scope of the policy • Print: Including limited quantities Our National Center for Science and guidelines. Neither of these lists should of NSF’s Strategic Plan, Science & Engineering Statistics (NCSES) site at be considered comprehensive. Engineering Indicators, National http://www.nsf.gov/statistics/ provides Science Board special reports, etc.; useful statistics about the science and A. Covered Information • Electronic: Such as NSF Web sites, engineering enterprise, and links to the • NSF-funded science, engineering Listservs, e-mail, social media sites such biennial Science and Engineering and education research papers, books, as Facebook, Twitter, YouTube and Indicators, published by the National journal articles, reports, and similar FlickR; Science Board. materials, unless they have disclaimers • Audiovisual: Audio or video III. Use of Federal Advisory to distinguish the research from NSF programs, media webcasts, slideshows, Committees (FAC) views and positions; powerpoint presentations by the agency • NSF-generated reports, brochures, Director and Deputy Director; and NSF’s scientific advisory committees documents, newsletters, and • Oral: Formal speeches, oral provide advice and recommendations to audiovisual products; presentations, lectures, and interviews NSF concerning support for science • Oral information, including for publication or broadcast. research and education. This may speeches, interviews, expert opinions include advice on program Media Policy: Guidelines for the Media only if representing NSF’s views, management, overall program balance, official positions, or policies; and NSF’s public affairs office has and other aspects of program • Science & Engineering Indicators established these guidelines. They are performance; on the impact of NSF reports of a statistical nature, which available online at http://nsf.gov/news/ research support and NSF-wide policies includes statistical analyses, trend data, policies_for_media.jsp. on the scientific community; and on etc., aggregated by the National Science When seeking information about NSF, potential science and research thrusts, Board and NSF’s National Centers for or interviews with NSF leadership or long-range plans and partnership Science & Engineering Statistics. staff, we ask that media contact Public opportunities. Affairs for assistance. Our Public Affairs Currently NSF invites suggestions for B. Information Not Covered media team members, their contact FAC membership on the NSF Web page • Documents or multimedia materials information and the ‘‘beats’’ they cover (http://www.nsf.gov/about/ not authored by NSF and not are listed at http://www.nsf.gov/news/ performance/dir_advisory.jsp). NSF representing official views, including olpastaff.jsp. plans to revise the text on this page for research supported by NSF funding; When you interview a member of NSF consistency with the OSTP • Opinions where the presentation leadership or staff, a member of the Memorandum. In addition, NSF plans to makes it clear that what is being offered media team may sit in/listen in on the issue a Federal Register notice at least is personal opinion rather than fact or interview. Our goal is to support the once a year to alert a wider audience to NSF’s views; interviewee and to assist you with any the NSF Advisory Committees. Since • Information dissemination limited follow-up information needed. vacancies come up on an ad hoc basis, to government employees or agency If you contact us during normal this Federal Register notice would contractors or grantees; business hours (East Coast time), you cover NSF’s scientific Advisory • Information intended solely for can expect a return call or message as Committees and refer persons interested intra- or inter-agency use or sharing of soon as possible, within 30 minutes of in serving as members or recommending government information, such as budget your call or message, or at the most, the members to the point of contact for the discussions, National Science Board and same day. We will do all we can to specific Committee. NSF deliberations, and other respond to your query by your deadline. NSF provides biographical information that serves to assess the We will always provide you with information for some but not all FAC success in achieving the agency’s accurate information and will work to members. NSF will ensure that the objectives, programs, training materials, put you directly in contact with the best practice is consistent across the agency. manuals, etc.; and expert to respond to your questions. Be Selection of FAC members is at the • Information intended to be limited aware that there are circumstances discretion of the Assistant Director/ to public filings, subpoenas, or where the information we can provide Office Head or some combination of adjudicative processes. is limited. These include details about these senior management officials. The possible or ongoing investigative work, NSF leadership plans to devote an Media Policy: Types of Information pre-decisional budget data, and NSF annual senior management session to Disseminated by NSF to the Public personnel records. discuss expectations and best practices Annually, NSF produces hundreds of When we provide editorial content to for FAC member selection. various types of outreach and media, as with our partnerships with The NSF Designated Agency Ethics communication materials and provides LiveScience.com and U.S. News and Official will provide copies of all thousands of pages of Web content for World Report, the content is clearly Conflict of Interest waivers granted to access by the public. NSF’s public labeled as such. FAC members to the respective

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00134 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47274 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Designated Federal Official to be posted provides a procedural schedule. date for any responsive pleading by the on the appropriate FAC Web site. Publication of this document will allow Postal Service to this notice is August NSF will use the following disclaimer the Postal Service, petitioners, and 10, 2011. on all FAC reports, recommendations, others to take appropriate action. Availability; Web site posting. The and products, unless there is prior DATES: Administrative record due (from Commission has posted the appeal and agreement to do otherwise: Postal Service): August 10, 2011; supporting material on its Web site at http://www.prc.gov. Additional filings The function of Federal advisory deadline for notices to intervene: August committees is advisory only. Any opinions, 23, 2011. See the Procedural Schedule in this case and participants’ findings, conclusions, or recommendations in the SUPPLEMENTARY INFORMATION submissions also will be posted on the expressed in this material are those of the section for other dates of interest. Commission’s Web site, if provided in Advisory Committee, and do not necessarily ADDRESSES: Submit comments electronic format or amenable to reflect the views of the National Science electronically by accessing the ‘‘Filing conversion, and not subject to a valid Foundation. Online’’ link in the banner at the top of protective order. Information on how to IV. Professional Development of the Commission’s Web site (http:// use the Commission’s Web site is Government Scientists and Engineers www.prc.gov) or by directly accessing available online or by contacting the the Commission’s Filing Online system Commission’s webmaster via telephone NSF has a strong commitment to at https://www.prc.gov/prc-pages/filing- at 202–789–6873 or via electronic mail ensuring that its staff remains at the online/login.aspx. Commenters who at [email protected]. cutting edge of the nation’s workforce cannot submit their views electronically The appeal and all related documents by fostering a culture of continuous are also available for public inspection should contact the person identified in learning. To that end, NSF permits staff in the Commission’s docket section. the FOR FURTHER INFORMATION CONTACT (including scientists and engineers) to Docket section hours are 8 a.m. to 4:30 section as the source for case-related pursue research and developmental p.m., Monday through Friday, except on information for advice on alternatives to activities related to NSF’s mission and Federal government holidays. Docket electronic filing. goals such as attending or giving section personnel may be contacted via presentations at conferences or FOR FURTHER INFORMATION CONTACT: electronic mail at [email protected] involvement in committees on Stephen L. Sharfman, General Counsel, or via telephone at 202–789–6846. Government time. at 202–789–6820 (case-related Filing of documents. All filings of NSF also allows its staff to participate information) or [email protected] documents in this case shall be made in any research or educational (electronic filing assistance). using the Internet (Filing Online) institution, scientific society, SUPPLEMENTARY INFORMATION: Notice is pursuant to Commission rules 9(a) and professional association or editorial hereby given that, pursuant to 39 U.S.C. 10(a) at the Commission’s Web site, board, provided written permission is 404(d), on July 26, 2011, the http://www.prc.gov, unless a waiver is obtained from the scientist’s or Commission received a petition for obtained. See 39 CFR 3001.9(a) and engineer’s supervisor or ethics review of the Postal Service’s 3001.10(a). Instructions for obtaining an counselor. determination to close the post office in account to file documents online may be Innis, Louisiana. The petition was filed found on the Commission’s Web site or V. Implementation by Larry Rebalais (Petitioner) and is by contacting the Commission’s docket NSF plans to develop a single, easily postmarked July 19, 2011. The section at [email protected] or via accessible Web site for Scientific Commission hereby institutes a telephone at 202–789–6846. Integrity with appropriate links and proceeding under 39 U.S.C. 404(d)(5) The Commission reserves the right to points of contact. NSF plans to follow and establishes Docket No. A2011–34 to redact personal information which may the OSTP guidelines for Federal consider Petitioner’s appeal. If infringe on an individual’s privacy Advisory Committees as outlined in Petitioner would like to further explain rights from documents filed in this Section II above and will offer his position with supplemental proceeding. appropriate training to staff on information or facts, Petitioner may Intervention. Persons, other than the implementation. These steps will be either file a Participant Statement on Petitioner and respondent, wishing to be taken by December 31, 2011. PRC Form 61 or file a brief with the heard in this matter are directed to file Commission no later than August 30, a notice of intervention. See 39 CFR Dated: July 29, 2011. 2011. 3001.111(b). Notices of intervention in Suzanne H. Plimpton, Categories of issues apparently raised. this case are to be filed on or before Reports Clearance Officer, National Science Petitioner contends that: (1) The Postal August 23, 2011. A notice of Foundation. Service failed to consider the effect of intervention shall be filed using the [FR Doc. 2011–19701 Filed 8–3–11; 8:45 am] the closing on the community (see 39 Internet (Filing Online) at the BILLING CODE 7555–01–P U.S.C. 404(d)(2)(A)(i); and (2) the Postal Commission’s Web site unless a waiver Service failed to adequately consider the is obtained for hardcopy filing. See 39 economic savings resulting from the CFR 3001.9(a) and 3001.10(a). POSTAL REGULATORY COMMISSION closure (see 39 U.S.C. 404(d)(2)(A)(iv)). Further procedures. By statute, the After the Postal Service files the Commission is required to issue its [Docket No. A2011–34; Order No. 782] administrative record and the decision within 120 days from the date Post Office Closing Commission reviews it, the Commission it receives the appeal. See 39 U.S.C. may find that there are more legal issues 404(d)(5). A procedural schedule has AGENCY: Postal Regulatory Commission. than those set forth above, or that the been developed to accommodate this ACTION: Notice. Postal Service’s determination disposes statutory deadline. In the interest of of one or more of those issues. The expedition, in light of the 120-day SUMMARY: This document informs the deadline for the Postal Service to file the decision schedule, the Commission may public that an appeal of the closing of applicable administrative record with request the Postal Service or other the Innis, Louisiana post office has been the Commission is August 10, 2011. See participants to submit information or filed. It identifies preliminary steps and 39 CFR 3001.113. In addition, the due memoranda of law on any appropriate

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00135 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47275

issue. As required by the Commission 2. Any responsive pleading by the represent the interests of the general rules, if any motions are filed, responses Postal Service to this notice is due no public. are due 7 days after any such motion is later than August 10, 2011. 5. The Secretary shall arrange for filed. See 39 CFR 3001.21. 3. The procedural schedule listed publication of this notice and order in It is ordered: the Federal Register. 1. The Postal Service shall file the below is hereby adopted. applicable administrative record 4. Pursuant to 39 U.S.C. 505, Emmett By the Commission. regarding this appeal no later than Rand Costich is designated officer of the Shoshana M. Grove, August 10, 2011. Commission (Public Representative) to Secretary.

PROCEDURAL SCHEDULE

July 26, 2011 ...... Filing of Appeal. August 10, 2011 ...... Deadline for the Postal Service to file the applicable administrative record in this appeal. August 10, 2011 ...... Deadline for the Postal Service to file any responsive pleading. August 23, 2011 ...... Deadline for notices to intervene (see 39 CFR 3001.111(b)). August 30, 2011 ...... Deadline for Petitioners’ Form 61 or initial brief in support of petition (see 39 CFR 3001.115(a) and (b)). September 19, 2011 ...... Deadline for answering brief in support of the Postal Service (see 39 CFR 3001.115(c)). October 4, 2011 ...... Deadline for reply briefs in response to answering briefs (see 39 CFR 3001.115(d)). October 11, 2011 ...... Deadline for motions by any party requesting oral argument; the Commission will schedule oral argument only when it is a necessary addition to the written filings (see 39 CFR 3001.116). November 16, 2011 ...... Expiration of the Commission’s 120-day decisional schedule (see 39 U.S.C. 404(d)(5)).

[FR Doc. 2011–19770 Filed 8–3–11; 8:45 am] SUPPLEMENTARY INFORMATION: On July references (two of which are non- 2 BILLING CODE 7710–FW–P 27, 2011, the United States Postal public). Service (Postal Service) filed a request Witness Boldt is identified asthe with the Postal Regulatory Commission National Manager, Customer Service POSTAL REGULATORY COMMISSION (Commission) for an advisory opinion Operations, in the Office of Delivery and [Docket No. N2011–1; Order No. 778] under 39 U.S.C. 3661 regarding use of Post Office Operations at Postal Service a centrally directed Retail Access Headquarters. USPS–T–1 at i. Witness Postal Service Initiative on Retail Optimization (RAO) initiative for Boldt’s office is described as having Postal Locations examining the continuation of service at primary responsibility for developing approximately 3,650 postal retail policies and procedures relating to the AGENCY: Postal Regulatory Commission. locations.1 day-to-day operations of post offices, ACTION: Notice. Jurisdiction. The Postal Service opening or closing of those facilities, contends that in its present form, the and improving customer experience. Id. SUMMARY: The Commission is noticing a RAO initiative ‘‘could be at least recently-filed Postal Service request for Witness Boldt’s testimony describes ‘substantially nationwide,’ within the the current state of the Postal Service’s an advisory opinion on an initiative meaning of 39 U.S.C. 3661(b).’’ Id. at 2. involving examination of the retail network, including alternative The Postal Service states that if it access channels and underlying trends. continuation of service at postal retail determines any facilities should be locations. This document invites public Id. at 2–10. The testimony also describes closed, postal patrons would have to the RAO initiative as a systemwide comments on the request and addresses obtain services at a different postal several related procedural steps. approach to the decline in demand for facility or alternate access channel. Id. retail services and the widespread DATES: Notices of intervention are due: The Postal Service asks the Commission availability of alternative access August 19, 2011. See the Procedural to consider whether it has jurisdiction channels. Id. at 13–14. The testimony SUPPLEMENTARY Schedule in the to offer an advisory opinion on the RAO indicates that the Postal Service will INFORMATION section for other dates of initiative, and if so, to render it. Id. evaluate postal offices with low interest. The RAO initiative applies to postal workload, stations and branches with ADDRESSES: Submit comments retail facilities across the country, insufficient demand and available electronically by accessing the ‘‘Filing without limit to geography or alternate access, and retail annexes with Online’’ link in the banner at the top of population, and is driven by insufficient demand and available the Commission’s Web site (http:// Headquarters. The Commission finds alternate access. Id. at 14–16. that because the Postal Service’s RAO www.prc.gov) or by directly accessing The Postal Service intends to make initiative appears to encompass a the Commission’s Filing Online system use of the new ‘‘USPS Handbook PO– Headquarters’ mandated, systemwide at http://www.prc.gov/prc-pages/filing- 101’’ that reflects recent rules review of postal retail facilities, similar online/login.aspx. Commenters who promulgated by the Postal Service to the review of station and branch cannot submit their views electronically concerning the methods to close or discontinuation in Docket No. N2009–1, should contact the person identified in consolidate postal retail facilities.3 Id. at a Commission advisory opinion the FOR FURTHER INFORMATION CONTACT 17–18. Finally, the testimony explains pursuant to 39 U.S.C. 3661 is section as the source for case-related how the Postal Service’s new rules work information for advice on alternatives to appropriate. Request. The Request is accompanied electronic filing. 2 by testimony from one witness, James J. See Notice of United States Postal Service of FOR FURTHER INFORMATION CONTACT: Filing of Initial Labrary References and Application Boldt (USPS–T–1), and five library Stephen L. Sharfman, General Counsel, for Non-Public Treatment of Materials, July 27, 2011, identifying and describing the library at 202–789–6820 (case-related 1 Request of the United Postal Service for an references filed in support of the Postal Service’s information) or [email protected] Advisory Opinion on Changes in the Nature of direct case. (electronic filing assistance). Postal Services, July 27, 2011 at 1 (Notice). 3 See 39 CFR Part 241.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00136 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47276 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

and how they will be applied in the issues. Given the Postal Service’s and reply briefs shall be due November RAO initiative. Id. at 19–23. financial position, the Commission 2, 2011. The Request and all supporting public finds it appropriate to expedite the Public Representative. Section 3661(c) materials are on file in the proceeding. To facilitate expeditious of title 39 requires the participation of Commission’s docket room for review of the matter, the Commission an ‘‘officer of the Commission who shall inspection during regular business expects parties to make judicious use of be required to represent the interests of hours, and are available on the discovery, discovery objections, and the general public.’’ Tracy Ferguson is Commission’s Web site at http:// motions’ practice. Every effort should be designated to serve as the Public www.prc.gov. made to confer to resolve disputes Representative to represent the interests Timing. The Postal Service believes informally. of the general public in this proceeding, that its filing satisfies the 39 CFR All interested persons are hereby assisted by John P. Klingenberg. Neither 3001.72 requirement that a request for notified that notices of intervention in the Public Representative nor any an advisory opinion must be filed at this proceeding shall be due on or additional persons assigned to assist her least 90 days in advance of the effective before August 19, 2011. See 39 CFR date of the proposed changes. The shall participate in or advise as to any 3001.20 and 3001.20a. Discovery may be Commission decision in this Postal Service indicates that it started propounded upon filing a notice of discontinuance actions consistent with proceeding, other than in their intervention. Responses to discovery designated capacity. the RAO initiative beginning July 26, shall be due within 7 days. 2011. Notice at 9. The Postal Service The full procedural schedule shown It is ordered: contends that these actions are not below the signature of this Order will be 1. The Commission establishes Docket ‘‘implementation’’ of a service change followed in this proceeding: No. N2011–1 to consider the Postal because the initial action of public • The hearing to receive the Postal Service Request referred to in the body notice of discontinuance is only an Service’s direct case shall begin of this Order. ‘‘information-gathering process.’’ Id. September 8, 2011. 2. The Commission will sit en banc in The Postal Service states further that if • Intervenor evidence must be this proceeding. discontinuation is announced, the submitted by September 16, 2011. facility must remain open for a further • The hearing to receive intervenor 3. The complete procedural schedule 60 days. Id. at 10. The Postal Service evidence shall begin October 3, 2011. for this proceeding is set forth below the states that it expects notices announcing • Unless the Postal Service elects to signature of this order. discontinuances of particular facilities submit surrebuttal evidence, briefs shall 4. Pursuant to 39 U.S.C. 505 and to be issued starting in late October be due October 14, 2011, and reply 3661(c), the Commission appoints Tracy through late December of 2011. Id. briefs shall be due October 21, 2011. Ferguson to represent the interests of Further procedures. 39 U.S.C. 3661(c) • If the Postal Service elects to submit the general public in this proceeding. requires that the Commission afford an surrebuttal evidence, that evidence is 5. The Secretary shall arrange for opportunity for a formal, on-the-record due by October 11, 2011. • publication of this notice and order in hearing of the Postal Service’s Request The hearing to receive the the Federal Register. under the terms specified in sections surrebuttal evidence shall be October 556 and 557 of title 5 of the U. S. Code 17, 2011. By the Commission. before issuing its advisory opinion. The • If surrebuttal evidence is submitted, Shoshana M. Grove, Postal Service’s request raises important briefs shall be due October 26, 2011, Secretary.

PROCEDURAL SCHEDULE

August 19, 2011 ...... Notices of intervention due. August 20, 2011 ...... Close of discovery on Postal Service direct case. September 2, 2011 ...... Notice of intent to conduct oral cross-examination. September 8, 2011 ...... Hearing on the Postal service’s direct case (9:30 AM in the ommission’s hearing room). September 9, 2011 ...... Close of discovery for developing intervenors’ direct case. September 16, 2011 ...... Filing of rebuttal testimony. September 23, 2011 ...... Conclusion of discovery directed towards rebuttal testimony. September 30, 2011 ...... Notice of intent to conduct oral cross-examination (rebuttal). October 3, 2011 ...... Hearing to enter rebuttal testimony into the record (9:30 AM in the commission’s hearing room). October 5, 2011 ...... Notice of intent to file surrebuttal testimony. October 11, 2011 ...... Filing of surrebuttal testimony (if requested). October 14, 2011 ...... Filing of briefs if no surebuttal testimony filed. October 17, 2011 ...... Hearing to enter surrebuttal testimony into the record (9:30 AM in the commis- sion’s hearing room, if necessary). October 21, 2011 ...... Filing of reply briefs if no surrebutal testimony is filed. October 26, 2011 ...... Filing of briefs if surrebuttal testimony filed. November 2, 2011 ...... Filing of reply briefs if surrebuttal testimony filed.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00137 Fmt 4703 Sfmt 9990 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47277

[FR Doc. 2011–19725 Filed 8–3–11; 8:45 am] undertaken in support of its mission to civil or criminal law or regulation BILLING CODE 7710–FW–P coordinate and conduct oversight of within the jurisdiction of the receiving Recovery Act funds to prevent fraud, entity. waste, and abuse. These individuals D. To disclose information to a RECOVERY ACCOUNTABILITY AND include but are not limited to those that Federal, state, local, or tribal or other TRANSPARENCY BOARD have applied for, sought or received public authority of the fact that this Federal funds, including but not limited system of records contains information [Doc. No. 11–004] to Recovery Act funds. relevant to the retention of an employee or retention of a security clearance. That Privacy Act of 1974; System of CATEGORIES OF RECORDS IN THE SYSTEM: Records entity, authority, or licensing Every possible type of information organization may then make a request AGENCY: Recovery Accountability and that contributes to effective oversight of supported by the written consent of the Transparency Board. fraud, waste, and abuse of Recovery Act individual for the entire record if it so funds may be maintained in this system ACTION: Notice of new Privacy Act chooses. of records, including but not limited to system of records. E. To disclose information to a records on Recovery Act recipients and congressional office from the record of SUMMARY: The Recovery Accountability subrecipients (including vendors) and an individual in response to an inquiry and Transparency Board (Board) records on other individuals, from the congressional office made at proposes a new system of records corporations, sole proprietors, and other the request of the individual. subject to the Privacy Act of 1974 (5 legal entities that have applied for, F. To disclose information to the U.S.C. 552a), as amended (Privacy Act sought, or received Federal funds, Department of Justice (DOJ), or in a or the Act), entitled ‘‘Fast Alert including but not limited to Recovery proceeding before a court, adjudicative System.’’ Under the American Recovery Act funds. body, or other administrative body and Reinvestment Act of 2009, Public AUTHORITY FOR MAINTENANCE OF SYSTEM: before which the Board is authorized to Law 111–5 (Recovery Act), the Recovery The Recovery Act established the appear, when: Accountability and Transparency Board Board to coordinate and conduct 1. The Board, or any component (Board) is responsible for coordinating oversight of Recovery Act funds to thereof; or and conducting oversight of covered prevent fraud, waste, and abuse. Public 2. Any employee of the Board in his funds to prevent fraud, waste, and Law 111–5, 1521, 1523(a)(1). or her official capacity; or abuse. The Board has determined that, 3. Any employee of the Board in his to further its mission of fraud and waste PURPOSE(S): or her individual capacity where the prevention, recipients of Recovery Act The purpose of collecting this DOJ or the Board has agreed to represent funds and those seeking Recovery Act information is to assist with the Board’s the employee; or funds should be reviewed against efforts to prevent fraud, waste, and 4. The United States, if the Board existing public, private, and abuse of Recovery Act funds. By determines that litigation is likely to commercially available information, collecting data that is relevant to affect the Board or any of its including but not limited to information determinations of recipient and components, is a party to litigation or regarding past recipients of or those that potential recipient responsibility and has an interest in such litigation, and have sought Federal funds. The Board risk, the Board can create an oversight the use of such records by the DOJ or has further determined that direct tool to be utilized by the Board and by the Board is deemed by the Board to be participation in such reviews by agency those agencies responsible for relevant and necessary to the litigation, procurement and grant personnel, as distributing and/or overseeing Recovery provided, however, that in each case it well as by Offices of Inspector General Act funds. has been determined that the disclosure and other law enforcement authorities, ROUTINE USES OF RECORDS MAINTAINED IN THE is compatible with the purpose for will improve the efficiency and which the records were collected. economy of achieving the Board’s SYSTEM, INCLUDING CATEGORIES OF USERS AND THE PURPOSES OF SUCH USES: G. To disclose information to the mission of preventing and detecting Records in the Fast Alert System may National Archives and Records fraud, waste, and abuse of Recovery Act Administration in records management funds. be used: A. For auditing or other internal inspections. RATB—13 purpose of the Board, including but not H. To disclose information to limited to: review, analysis, and contractors, grantees, consultants, or SYSTEM NAME: investigation of possible fraud, waste, volunteers performing or working on a Fast Alert System. abuse, and mismanagement of Recovery contract, service, grant, cooperative agreement, job, or other activity for the SECURITY CLASSIFICATION: Act funds. B. To provide responses to queries Board and who have a need to have Controlled Unclassified Information. from Federal agencies, including but not access to the information in the SYSTEM LOCATION: limited to regulatory and law performance of their duties or activities The principal location for the system enforcement agencies, regarding for the Board. Recovery Act fund recipients, is the Recovery Accountability and POLICIES AND PRACTICES FOR STORING, subrecipients, or vendors, or those Transparency Board, located at 1717 RETRIEVING, ACCESSING, RETAINING, AND Pennsylvania Avenue, NW., Suite 700, seeking Recovery Act funds. DISPOSING OF RECORDS IN THE SYSTEM: Washington, DC 20006. C. To furnish information to the appropriate Federal, state, local, or STORAGE: CATEGORIES OF INDIVIDUALS COVERED BY THE tribal agency responsible for The Fast Alert System records will be SYSTEM: investigating, prosecuting, enforcing, or stored in digital format on a digital This system contains records on implementing a statute, rule, regulation, storage device. All record storage individuals acting in a personal capacity or order, if the information is relevant procedures are in accordance with who relate to official Board efforts to a violation or potential violation of current applicable regulations.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00138 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47278 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

RETRIEVABILITY: RECORD ACCESS PROCEDURES: FOR FURTHER INFORMATION CONTACT: Records are retrievable by database A request for record access shall Jennifer Dure, General Counsel, management systems software designed follow the directions described under Recovery Accountability and to retrieve data elements based upon Notification Procedure and will be Transparency Board, 1717 Pennsylvania role-based (e.g., law enforcement or addressed to the system manager at the Avenue, NW., Suite 700, Washington, non-law enforcement) user access address listed above. To the extent a DC 20006, (202) 254–7900. privileges. portion of this system contains law Ivan J. Flores, enforcement records, such records are Paralegal Specialist, Recovery Accountability SAFEGUARDS: exempt from this requirement pursuant and Transparency Board. to 5 U.S.C. 552a(j)(2) and (k)(2). To the The Board has minimized the risk of [FR Doc. 2011–19714 Filed 8–3–11; 8:45 am] extent that such law enforcement unauthorized access to the system by BILLING CODE 6821–15–P establishing a secure environment for records are not subject to exemption, exchanging electronic information. they are subject to access. A determination as to exemption shall be Physical access uses a defense in-depth SECURITIES AND EXCHANGE made at the time a request for access is approach restricting access at each layer COMMISSION closest to where the actual system received. Access requests shall be [Release No. IC–29739] resides. The entire complex is patrolled directed to the System Manager listed above. by security during non-business hours. Notice of Applications for Physical access to the data system CONTESTING RECORDS PROCEDURES: Deregistration Under Section 8(f) of the housed within the facility is controlled If you wish to contest a record in the Investment Company Act of 1940 by a computerized badge-reading system of records, contact the system July 29, 2011. system. Multiple levels of security are manager and identify the record to be The following is a notice of maintained via dual factor changed, identify the corrective action applications for deregistration under authentication for access using sought, and provide a written section 8(f) of the Investment Company biometrics. The computer system offers justification. a high degree of resistance to tampering Act of 1940 for the month of July 2011. and circumvention. This system limits RECORD SOURCE CATEGORIES: A copy of each application may be data access to Board and contract staff Information may be obtained from obtained via the Commission’s Web site on a need-to-know basis, and controls recipients and subrecipients (including by searching for the file number, or an individuals’ ability to access and alter vendors) of Recovery Act funds or other applicant using the Company name box, records within the system. All users of Federal funds for which the Board has at http://www.sec.gov/search/ the system of records are given a unique been assigned oversight responsibilities; search.htm or by calling (202) 551– user identification (ID) with personal Federal, state, and local agencies; 8090. An order granting each identifiers, and those user IDs are public-source and/or commercially application will be issued unless the consistent with the above referenced available materials. SEC orders a hearing. Interested persons role-based access privileges to maintain may request a hearing on any DATES: Comments on this proposed new proper security of law enforcement and application by writing to the SEC’s system of records must be received by Secretary at the address below and any other sensitive information. All the Board on or before September 13, interactions between the system and the serving the relevant applicant with a 2011. The Privacy Act, at 5 U.S.C. copy of the request, personally or by authorized individual users are 552a(e)(11), requires that the public be recorded. mail. Hearing requests should be provided a 30-day period in which to received by the SEC by 5:30 p.m. on RETENTION AND DISPOSAL: comment on an agency’s intended use of August 23, 2011, and should be information in a system of records. accompanied by proof of service on the Board personnel will review records Appendix I to Office of Management applicant, in the form of an affidavit or, on a periodic basis to determine and Budget Circular A–130 requires an for lawyers, a certificate of service. whether they should be retained or additional 10-day period, for a total of Hearing requests should state the nature modified. Further, the Board will retain 40 days, in which to make such of the writer’s interest, the reason for the and dispose of these records in comments. The system of records will request, and the issues contested. accordance with Board Records Control be effective, as proposed, at the end of Persons who wish to be notified of a Schedules approved by the National the comment period unless the Board hearing may request notification by Archives and Records Administration. determines, upon review of the writing to the Secretary, U.S. Securities comments received, that changes should SYSTEM MANAGER AND ADDRESS: and Exchange Commission, 100 F be made. In that event, the Board will Street, NE., Washington, DC 20549– Michael Wood, Recovery publish a revised notice in the Federal 1090. Accountability and Transparency Board, Register. For Further Information Contact: 1717 Pennsylvania Avenue, NW., Suite ADDRESSES: Comments on the proposed Diane L. Titus at (202) 551–6810, SEC, 700, Washington, DC 20006. new system of records should be clearly Division of Investment Management, identified as such and may be Office of Investment Company NOTIFICATION PROCEDURE: submitted: Regulation, 100 F Street, NE., Any individual who wants to know By Mail or Hand Delivery: Jennifer Washington, DC 20549–8010. whether this system of records contains Dure, General Counsel, Recovery Arrow Funds Trust a record about him or her acting in a Accountability and Transparency Board, personal capacity, who wants access to 1717 Pennsylvania Avenue, NW., Suite [File No. 811–22325] such records, or who wants to contest 700, Washington, DC 20006; Summary: Applicant seeks an order the contents of such records should By Fax: (202) 254–7970; or declaring that it has ceased to be an make a written request to the system By E-mail to the Board: investment company. Applicant has manager. [email protected]. never made a public offering of its

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00139 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47279

securities and does not propose to make investment company. On January 25, Filing Dates: The application was a public offering or engage in business 2011, applicant transferred the assets of filed on September 17, 2009, and of any kind. its two remaining series, Embarcadero amended on December 11, 2009, and Filing Date: The application was filed Absolute Return Fund and Embarcadero July 6, 2011. on July 20, 2011. Market Neutral Fund, to Tanaka Growth Applicant’s Address: 527 Madison Applicant’s Address: 2943 Olney- Fund, a series of Tanaka Funds, Inc., Ave., Suite 2600, New York, NY 10022. Sandy Spring Rd., Suite A, Olney, MD based on net asset value. Expenses of For the Commission, by the Division of 20832. $133,600 incurred in connection with Investment Management, pursuant to Highland Pharmaceutical Royalty Fund the reorganization were paid by delegated authority. applicant and Tanaka Capital Elizabeth M. Murphy, [File No. 811–22266] Management, Inc., investment adviser to Secretary. Summary: Applicant, a closed-end the acquiring fund. [FR Doc. 2011–19810 Filed 8–3–11; 8:45 am] investment company, seeks an order Filing Date: The application was filed BILLING CODE 8011–01–P declaring that it has ceased to be an on July 8, 2011. investment company. Applicant has Applicant’s Address: 3 Embarcadero never made a public offering of its Center, Suite 1120, San Francisco, CA SECURITIES AND EXCHANGE securities and does not propose to make 94111. COMMISSION a public offering or engage in business of any kind. BlackRock Global Financial Services [Release No. 34–64992; File No. SR–ISE– Filing Dates: The application was Fund, Inc.; Global Financial Services 2011–43] Master LLC filed on May 17, 2011, and amended on Self-Regulatory Organizations; July 21, 2011. [File No. 811–9375]; [File No. 811–9633] International Securities Exchange, Applicant’s Address: NexBank Tower, Summary: Each applicant seeks an LLC; Notice of Filing and Immediate 13455 Noel Rd., Suite 800, Dallas, TX order declaring that it has ceased to be Effectiveness of Proposed Rule 75240. an investment company. On or about Change Relating to Fees and Rebates Wells Fargo Family Office Fund I, LLC; April 27, 2011, each applicant made a for Adding and Removing Liquidity Wells Fargo Family Office Master Fund, final liquidating distribution to its LLC; Wells Fargo Family Office Fund shareholders, based on net asset value. July 29, 2011. FW, LLC Expenses of approximately $8,606 Pursuant to Section 19(b)(1) of the incurred in connection with the Securities Exchange Act of 1934 [File No. 811–22513]; [File No. 811–22514]; (‘‘Act’’) 1 and Rule 19b-4 thereunder,2 [File No. 811–22515] liquidation of BlackRock Global Financial Services Fund, Inc. were paid notice is hereby given that, on July 19, Summary: Each applicant, a closed- by BlackRock Advisors, LLC, or its 2011, the International Securities end investment company, seeks an affiliates. Exchange, LLC (the ‘‘Exchange’’ or order declaring that it has ceased to be Filing Date: The applications were ‘‘ISE’’) filed with the Securities and an investment company. Applicants filed on July 6, 2011. Exchange Commission (the have never made a public offering of Applicants’ Address: 100 Bellevue ‘‘Commission’’) the proposed rule their securities and do not propose to Parkway, Wilmington, DE 19809. change as described in Items I and II make a public offering or engage in below, which Items have been prepared business of any kind. Pioneer Protected Principal Trust by the Exchange. The Commission is Filing Dates: The applications were [File No. 811–21163] publishing this notice to solicit filed on May 23, 2011, and amended on Summary: Applicant seeks an order comments on the proposed rule change July 15, 2011. from interested persons. Applicants’ Address: 333 Market St., declaring that it has ceased to be an 29th floor, MAC A0119–291, San investment company. On December 21, I. Self-Regulatory Organization’s Francisco, CA 94105. 2009, applicant made a liquidating Statement of the Terms of Substance of distribution to its shareholders, based the Proposed Rule Change Prudential Investment Portfolios 11 on net asset value. Expenses of The ISE is proposing to amend its [File No. 811–3264] approximately $25,878 incurred in transaction fees and rebates for adding Summary: Applicant seeks an order connection with the liquidation were and removing liquidity. The text of the declaring that it has ceased to be an paid by applicant and Pioneer proposed rule change is available on the investment company. On May 3, 2011, Investment Management, Inc., Exchange’s Web site (http:// applicant made a final liquidating applicant’s investment adviser. www.ise.com), at the principal office of distribution to its shareholders, based Filing Date: The application was filed the Exchange, and at the Commission’s on net asset value. Expenses of $14,000 on June 24, 2011. Public Reference Room. incurred in connection with the Applicant’s Address: 60 State St., liquidation were borne by Prudential Boston, MA 02109. II. Self-Regulatory Organization’s Statement of the Purpose of, and Investments LLC, applicant’s Special Situations Fund III, L.P. investment adviser. Statutory Basis for, the Proposed Rule Filing Date: The application was filed [File No. 811–8110] Change on July 5, 2011. Summary: Applicant, a closed-end In its filing with the Commission, the Applicant’s Address: Gateway Center investment company, seeks an order self-regulatory organization included Three, 100 Mulberry St., Newark, NJ declaring that it has ceased to be an statements concerning the purpose of, 07102–4077. investment company. On June 27, 2011, and basis for, the proposed rule change applicant made a final liquidating Embarcadero Funds, Inc. and discussed any comments it received distribution to its shareholders, based on the proposed rule change. The text [File No. 811–9116] on net asset value. Expenses of $82,500 Summary: Applicant seeks an order incurred in connection with the 1 15 U.S.C. 78s(b)(1). declaring that it has ceased to be an liquidation were paid by applicant. 2 17 CFR 240.19b–4.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00140 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47280 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

of these statements may be examined at B. Self-Regulatory Organization’s comments more efficiently, please use the places specified in Item IV below. Statement on Burden on Competition only one method. The Commission will The self-regulatory organization has The proposed rule change does not post all comments on the Commission’s prepared summaries, set forth in impose any burden on competition that Internet Web site (http://www.sec.gov/ sections A, B and C below, of the most is not necessary or appropriate in rules/sro.shtml). Copies of the significant aspects of such statements. furtherance of the purposes of the Act. submission, all subsequent amendments, all written statements A. Self-Regulatory Organization’s C. Self-Regulatory Organization’s with respect to the proposed rule Statement of the Purpose of, and Statement on Comments on the change that are filed with the Statutory Basis for, the Proposed Rule Proposed Rule Change Received From Commission, and all written Change Members, Participants, or Others communications relating to the 1. Purpose The Exchange has not solicited, and proposed rule change between the does not intend to solicit, comments on Commission and any person, other than The Exchange currently assesses a per this proposed rule change. The those that may be withheld from the contract transaction charge to market Exchange has not received any public in accordance with the participants that add or remove unsolicited written comments from provisions of 5 U.S.C. 552, will be liquidity from the Exchange (‘‘maker/ members or other interested parties. available for Web site viewing and printing in the Commission’s Public taker fees’’) in 99 options classes (the III. Date of Effectiveness of the ‘‘Select Symbols’’).3 The purpose of this Reference Room, 100 F Street, NE., Proposed Rule Change and Timing for Washington, DC 20549, on official proposed rule change is to amend the Commission Action list of Select Symbols on the Exchange’s business days between the hours of 10 Schedule of Fees, titled ‘‘Rebates and The foregoing rule change has become a.m. and 3 p.m. Copies of the filing also Fees for Adding and Removing effective pursuant to Section will be available for inspection and 6 Liquidity in Select Symbols.’’ 19(b)(3)(A)(ii) of the Act. At any time copying at the principal office of the Specifically, the Exchange proposes to within 60 days of the filing of such Exchange. All comments received will add Motorola Solutions, Inc. (‘‘MSI’’) to proposed rule change, the Commission be posted without change; the the list of Select Symbols. summarily may temporarily suspend Commission does not edit personal such rule change if it appears to the identifying information from While changes to the Fee Schedule Commission that such action is submissions. You should submit only pursuant to this proposal are effective necessary or appropriate in the public information that you wish to make upon filing, the Exchange has interest, for the protection of investors, available publicly. All submissions designated these changes to be operative or otherwise in furtherance of the should refer to File Number SR–ISE– on August 1, 2011. purposes of the Act. If the Commission 2011–43 and should be submitted on or 2. Statutory Basis takes such action, the Commission shall before August 25, 2011. institute proceedings to determine For the Commission, by the Division of The Exchange believes that its whether the proposed rule should be Trading and Markets, pursuant to delegated proposal to amend its Fee Schedule is approved or disapproved. authority.7 consistent with Section 6(b) of the Act 4 Elizabeth M. Murphy, IV. Solicitation of Comments in general, and furthers the objectives of Secretary. Section 6(b)(4) of the Act 5 in particular, Interested persons are invited to [FR Doc. 2011–19727 Filed 8–3–11; 8:45 am] submit written data, views, and in that it is an equitable allocation of BILLING CODE 8011–01–P reasonable fees and other charges among arguments concerning the foregoing, Exchange members and other persons including whether the proposed rule using its facilities. change is consistent with the Act. SECURITIES AND EXCHANGE Comments may be submitted by any of COMMISSION The Exchange believes that it is the following methods: reasonable to add MSI to its list of [Release No. 34–64991; File No. SR–CBOE– Select Symbols to attract additional Electronic Comments 2011–039] order flow to the Exchange. The • Use the Commission’s Internet Self-Regulatory Organizations; Exchange anticipates that the addition comment form (http://www.sec.gov/ Chicago Board Options Exchange, of MSI to the list of Select Symbols will rules/sro.shtml); or attract market participants to transact • Send an e-mail to rule- Incorporated; Order Granting Approval equity options at the Exchange because [email protected]. Please include File of Proposed Rule Change To List and Trade Single Stock Dividend Options of the available rebates. Number SR–ISE–2011–43 on the subject The Exchange believes that it is line. July 29, 2011. equitable to amend the list of Select Paper Comments On May 31, 2011, the Chicago Board Symbols by adding MSI because the list Options Exchange, Incorporated • Send paper comments in triplicate of Select Symbols would apply (‘‘Exchange’’ or ‘‘CBOE’’) filed with the to Elizabeth M. Murphy, Secretary, uniformly to all categories of Securities and Exchange Commission Securities and Exchange Commission, participants in the same manner. All (the ‘‘Commission’’), pursuant to 100 F Street, NE., Washington, DC Section 19(b)(1) of the Securities market participants who trade the Select 20549–1090. Symbols would be subject to the Exchange Act of 1934 (the ‘‘Act’’),1 and All submissions should refer to File 2 applicable maker/taker fees and rebates. Rule 19b-4 thereunder, a proposed rule Number SR–ISE–2011–43. This file change to list and trade cash-settled number should be included on the 3 Options classes subject to maker/taker fees are options that overlie the ordinary cash identified by their ticker symbol on the Exchange’s subject line if e-mail is used. To help the Schedule of Fees. Commission process and review your 7 17 CFR 200.30–3(a)(12). 4 15 U.S.C. 78f(b). 1 15 U.S.C. 78s(b)(1). 5 15 U.S.C. 78f(b)(4). 6 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b-4.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00141 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47281

dividends paid by an issuer over an is equal to or less than $200 and 2.5 trading disruption or other unusual annual, semi-annual, or quarterly points ($2.50) or greater strike price circumstance, the settlement value will ‘‘accrual period.’’ The proposed rule intervals if the strike price exceeds be determined in accordance with the change was published for comment in $200. Initially, the Exchange will list rules and bylaws of the OCC. 3 the Federal Register on June 17, 2011. in-, at- and out-of-the-money strike Surveillance The Commission received no comments prices and may open for trading up to on the proposal. This order approves the five annual contract months expiring in CBOE has represented that it will use proposed rule change. December in different years for any the same surveillance procedures single stock underlying an SSDO and up currently utilized for each of the I. Description of Proposal to ten contract months for accrual Exchange’s other single stock options to CBOE proposes to list and trade cash- periods of less than a year.6 The monitor trading in SSDOs. Such settled, P.M.-settled, European-style Exchange is proposing to use the procedures include, for example, exercise options that overlie the expected dividend (i.e., the aggregate monitoring dividend announcements. ordinary cash dividends paid by an value of dividends that are expected to The Exchange represents that these issuer (‘‘SSDO’’) over an annual accrual be paid by the issuer over a given surveillance procedures shall be period. CBOE also may list series of accrual period) amount for setting the adequate to monitor trading in these SSDOs with an accrual period of less initial strikes. Near-term SSDOs will option products. For surveillance than a year, but in no event less than reflect dividends accumulating in the purposes, the CBOE has represented one quarter of a year. then-current accrual period. All other that it will have complete access to information regarding trading activity in Product Design SSDO options (i.e., contracts listed for trading that are not in the then-current the pertinent securities whose dividend Each SSDO represents the accrual period) will reflect dividends payment is the basis for particular accumulated ordinary dividend expected in comparable accrual periods SSDOs. amounts paid by a specific issuer over beyond the current accrual period. The 4 Position Limits a specified accrual period. Each annual Exchange may open for trading CBOE proposes that position and accrual period will run from the additional series, either in response to exercise limits for SSDOs will be the business day after the third Friday of customer demand or as the price of the same as those for standard options December through the third Friday of expected dividends for an issuer overlying the same security. While the following December. For an SSDO changes. with an accrual period of less than a positions in SSDOs will be aggregated year, the accrual period runs from the Exercise and Settlement with longer-dated positions in SSDOs business day after the third Friday of the The proposed options will expire on with the same underlying stock for month beginning the accrual period the Saturday following the third Friday position and exercise limits purposes, through the third Friday of the month of the expiring month. Trading in the they will not be aggregated with ending the accrual period.5 expiring contract month will normally positions in the ordinary options The underlying value for SSDOs will cease at 3 p.m. Chicago time on the last overlying the stock of the issuer paying be equal to ten (10) times the ex- day of trading (ordinarily the Friday the dividends underlying the SSDO. dividend amounts of an issuer before expiration Saturday, unless there CBOE represents that the reason for not accumulated over the specified accrual is an intervening holiday). When the aggregating positions with ordinary period. Each day, CBOE will calculate last trading day is moved because of an options is that SSDOs are based solely the aggregate daily dividend totals for Exchange holiday (such as when CBOE on expected dividends for an issuer and the specific issuer, which are summed is closed on the Friday before will reflect the forward value of that up over any accrual period. During each expiration), the last trading day for expectation. CBOE states that because business day, CBOE will disseminate expiring options will be Thursday. the pricing of ordinary options versus the underlying SSDO value, multiplied Exercise will result in delivery of cash SSDOs will differ dramatically, the by ten (10), through the Options Price on the business day following Exchange believes there is no need to Reporting Authority (‘‘OPRA’’), the expiration. SSDOs will be P.M.-settled. aggregate positions to prevent Consolidated Tape Association (‘‘CTA’’) The Exchange is proposing P.M.- manipulative practices involving the tape and/or the Market Data Index settlement for SSDOs because options underlying options. (‘‘MDI’’) feed. trading on individual stocks are P.M. Exchange Rules Applicable settled. As a result, the Exchange is Options Trading New Rule 5.9 is proposed to govern proposing to match the expiration style the listing and trading of SSDOs. In Each SSDO will be quoted in for SSDOs to individual stock option addition, SSDOs will be margined in the decimals and one point will be equal to exercise. The exercise-settlement same manner as single stock options $100. The Exchange proposes that the amount will be equal to ten times the under Exchange Rule 12.3. Purchasers minimum price variation for quotes ordinary cash dividends paid by the of puts or calls, however, must be paid shall be established on a class-by-class issuer over the accrual period. The in full, even if there remains longer than basis by the Exchange and shall not be exercise settlement amount is equal to nine months until expiration for the less than $0.01. CBOE also proposes to the difference between the exercise- position. For SSDOs, the aggregate list series at 1 point ($1.00) or greater settlement value and the exercise price contract value on which the margin strike price intervals if the strike price of the option, multiplied by the contract amount will be calculated will be the multiplier ($100). 3 See Securities Exchange Act Release No. 64654 If the exercise settlement value is not product of the forward expected (June 13, 2011), 76 FR 35503 (‘‘Notice’’). available or the normal settlement dividend amount for the accrual period 4 For purposes of SSDOs, dividends are deemed procedure cannot be utilized due to a (as adjusted for any contract scaling to be ‘‘paid’’ on the ex-dividend date. factor) and the applicable multiplier 5 The Exchange will assign separate trading symbols to SSDOs overlying the accumulated ex- 6 See Notice, supra note 3, for an example of ($100). dividends of the same issuer that have different listing five annual contract months expiring in CBOE proposes to designate SSDO accrual periods. December in different years. options as eligible for trading as Flexible

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00142 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47282 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Exchange Options (‘‘FLEX options’’) as therefore, the implementation of $1.00 and the applicable modifier. The provided for in Chapters XXIVA strike price intervals is designed to Commission believes that CBOE’s (Flexible Exchange Options) and XXIVB provide investors with flexibility. proposed rules relating to margin (FLEX Hybrid Trading System). Because of this characteristic the requirements are appropriate. Commission believes that the Capacity The Commission also believes that implementation of $1 strike price CBOE’s proposal to allow SSDOs to be CBOE represents that it has analyzed intervals for SSDOs, within the eligible for trading as FLEX options is its capacity and believes that the parameters of the rule, is appropriate. consistent with the Act. The Exchange and OPRA have the necessary The Commission believes that CBOE’s Commission previously approved rules systems capacity to handle the proposal to allow the minimum price relating to the listing and trading of additional traffic associated with the variation to be no less than $0.01, as FLEX options on CBOE, which give listing of new series that will result from established on a class-by-class basis, is investors and other market participants the introduction of SSDOs. consistent with the Act, given the expected low underlying dividend the ability to individually tailor, within II. Discussion and Commission specified limits, certain terms of those values for SSDOs. CBOE has 11 Findings represented that it expects that the options. The Commission finds that the underlying dividend values for SSDOs The Commission notes that CBOE proposed rule change is consistent with will be relatively low, and that granular represented that it has an adequate the requirements of the Act and the pricing will provide for more pricing surveillance program to monitor trading rules and regulations thereunder points. Further, CBOE has represented of SSDOs and intends to apply its applicable to a national securities that it has analyzed its capacity and existing surveillance program for single exchange.7 Specifically, the believes that it and OPRA have the stock options to support the trading of Commission finds that the proposal is necessary systems capacity to handle these options. As with other securities, consistent with Section 6(b)(5) of the the additional traffic associated with the there is a potential risk that a corporate Act,8 which requires, among other listing of new series that will result from insider may exploit his or her advance things, that the rules of a national the introduction of SSDOs. In particular, knowledge of changes to an issuer’s securities exchange be designed to the Exchange noted that expected dividend policy through the purchase or promote just and equitable principles of dividend payments, on which the value sale of an SSDO. The Commission has trade, to remove impediments to and of SSDOs are predicated, are generally taken a number of enforcement actions perfect the mechanism of a free and much less volatile than share prices, in cases where insiders executed open market and a national market and thus there is less need to list securities transactions to exploit their system, and, in general, to protect numerous strike prices for each knowledge of changes in issuers’ investors and the public interest. expiration date of an SSDO or to add dividend policies.12 Accordingly, The Commission believes that CBOE’s many new strikes over the life of an adequate surveillance is an important proposal gives options investors the SSDO. responsibility of the CBOE. In addition, ability to make an additional investment The Commission notes that, on a daily CBOE has represented that it is choice in a manner consistent with the basis, CBOE will calculate the aggregate confident that it has adequate tools in requirements of Section 6(b)(5) of the daily dividend totals for the specific place to surveil for market Act.9 The Commission notes that SSDOs issuer, and will disseminate the manipulation. Further, CBOE is a will allow market participants to hedge underlying SSDO value, multiplied by member of the ISG and can obtain their exposure to changes in the ten (10), through OPRA, the CTA and/ trading activity in information in the dividend payment policies of the or the MDI feed. underlying securities whose dividend underlying securities. Further, the The Exchange has proposed to apply payment is the basis for particular Commission believes that the listing the same position and exercise limits as SSDOs from the exchanges that list the rules proposed by CBOE for SSDOs are those for standard options overlying the securities. The Commission believes reasonable and consistent with the Act, same security. However, the Exchange that CBOE should have the ability and as discussed below. notes that positions in SSDOs will not resources to adequately surveil for The Commission believes that be aggregated with positions in the manipulation in SSDOs. ordinary positions overlying the stock of permitting $1.00 strike price intervals if In approving the proposed rule the issuer paying the dividends the strike price is equal to or less than change, the Commission has also relied underlying the SSDO, because the $200 will provide investors with added upon CBOE’s representation that it has pricing of ordinary options and SSDOs flexibility in the trading of these options the necessary systems capacity to vary greatly and thus it is unnecessary and will further the public interest by support the new options series that will to aggregate the positions to prevent allowing investors to establish positions result from this proposal. that are better tailored to meet their manipulative practices involving the underlying. The Commission believes investment objectives. As explained by 11 See Securities Exchange Act Release No. 31910 CBOE, the underlying value of an SSDO that CBOE’s proposed rules relating to (February 23, 1993), 58 FR 12056 (March 2, 1993). is expected to fluctuate around a limited position and exercise limits are 12 See, e.g., SEC v. David L. Johnson, Civil Action expected dividend value range,10 and appropriate and consistent with the Act. No. 05–CV–4789 (USDC E.D. Pa.) (Sept. 7, 2005) The Exchange also proposes to margin (consent to permanent injunction, disgorgement and civil penalty for a person who allegedly sold 7 SSDOs in the same manner as single In approving this proposed rule change, the shares of an issuer based on inside information of Commission has considered the proposed rule’s stock options; however, the aggregate a dividend cut, and tipped his son to do likewise); impact on efficiency, competition, and capital contract value on which the margin SEC v. Barry Hertz, Civil Action No. 05–2848 formation. See 15 U.S.C. 78c(f). amount will be calculated will be the (USDC E.D.N.Y.) (Mar. 16, 2007) (consent to final 8 15 U.S.C. 78f(b)(5). product of the forward expected judgment, including an injunction and two-year bar 9 15 U.S.C. 78f(b)(5). from serving as an officer or director of a public 10 The Commission notes that, in the Notice the dividend amount for the accrual period corporation, for a person alleged to have traded on Exchange provided a number of examples of values inside information, including purchasing shares of underlying SSDOs using past ordinary dividend values ranged from 1 to 22.70. See Notice, supra an issuer while in possession of positive news of payouts over varying accrual periods, and these note 3. a first time dividend issuance).

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00143 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47283

III. Conclusion II. Self-Regulatory Organization’s instead offer a rebate of $0.0005 per Statement of the Purpose of, and share; (g) discontinue the $0.00025 per It is therefore ordered, pursuant to Statutory Basis for, the Proposed Rule share charge for adding liquidity in the Section 19(b)(2) of the Act,13 that the Change pre- and post-market trading sessions in proposed rule change (SR–CBOE–2011– In its filing with the Commission, the Tape B securities (Flag 4) and instead 039) is hereby approved. self-regulatory organization included offer a rebate of $0.0005 per share; and For the Commission, by the Division of statements concerning the purpose of, (h) discontinue the rebate of $0.00015 Trading and Markets, pursuant to delegated and basis for, the proposed rule change per share for removing liquidity in the authority.14 and discussed any comments it received pre- and post-market trading sessions in Elizabeth M. Murphy, on the proposed rule change. The text securities on all Tapes (Flag 6) and instead assess a $0.0006 per share Secretary. of these statements may be examined at the places specified in Item IV below. charge. [FR Doc. 2011–19748 Filed 8–3–11; 8:45 am] The self-regulatory organization has The Exchange also proposes to delete, BILLING CODE 8011–01–P prepared summaries, set forth in in its entirety, footnote 12, which sections A, B and C below, of the most describes a tiered rate ($0.00005 per significant aspects of such statements. share) if Members, measured monthly, SECURITIES AND EXCHANGE post 0.9% of the Total Consolidated COMMISSION A. Self-Regulatory Organization’s Volume (‘‘TCV’’) in average daily Statement of the Purpose of, and volume to EDGA. As a result of the [Release No. 34–64989; File No. SR–EDGA– Statutory Basis for, the Proposed Rule deletion of footnote 12, current 2011–23] Change footnotes 13–14 have been re-numbered 1. Purpose as footnotes 12–13. Self-Regulatory Organizations; EDGA Currently, the BY flag is yielded when Exchange, Inc.; Notice of Filing and With respect to the category of securities priced at or above $1.00, an order is routed to BATS BYX Immediate Effectiveness of Proposed when Members add liquidity, they are Exchange and removes liquidity using Rule Change Relating to Amendments currently assessed a charge of $0.00025 order types ROUC, ROBY, ROBB, or to the EDGA Exchange, Inc. Fee per share. Alternatively, when Members ROCO, as defined in Exchange Rules Schedule remove liquidity, they are currently 11.9(b)(3)(a), (c), and (g). The Exchange proposes to decrease the rebate from July 29, 2011. rebated in the amount of $0.00015 per share. The Exchange proposes to amend $0.0004 to $0.0002 when an order is Pursuant to Section 19(b)(1) of the the fee structure (and related Flags) set routed to BATS BYX Exchange and Securities Exchange Act of 1934 (the forth in the fee schedule to instead removes liquidity. ‘‘Act’’),1 and Rule 19b–4 thereunder,2 provide a rebate for Members in the The Exchange also proposes to notice is hereby given that on July 27, amount of $0.0005 per share when eliminate the text in footnote 7, which 2011, the EDGA Exchange, Inc. (the adding liquidity and assess a $0.0006 describes the INET tier, and replace it ‘‘Exchange’’ or the ‘‘EDGA’’) filed with per share charge when removing with the words ‘‘intentionally omitted.’’ the Securities and Exchange liquidity. This tier provides that ‘‘Members Commission (‘‘Commission’’) the The Exchange proposes to make routing an average daily volume proposed rule change as described in conforming changes to the relevant (‘‘ADV’’): (i) Less than 5,000,000 shares Items I, II, and III below, which items flags, as described below, for adding and will be charged $0.0030 per share, as described in the schedule; (ii) equal to have been prepared by the self- removing liquidity from the EDGA book. or greater than 5,000,000 shares but less regulatory organization. The Specifically, the Exchange proposes to: (a) Discontinue the $0.00025 per share than 20,000,000 shares will be charged Commission is publishing this notice to charge for adding liquidity to EDGA Nasdaq’s best removal tier rate per solicit comments on the proposed rule book in Tape B securities (Flag B) and share; (iii) equal to or greater than change from interested persons. instead offer a rebate of $0.0005 per 20,000,000 shares but less than I. Self-Regulatory Organization’s share; (b) discontinue the rebate of 30,000,001 shares will be charged Statement of the Terms of Substance of $0.00015 per share for removing Nasdaq’s best removal tier rate—$0.0001 the Proposed Rule Change liquidity from the EDGA book in Tapes per share; and (iv) equal to or greater B and C securities (Flag N) and instead than 30,000,001 shares will be charged The Exchange proposes to amend its assess a $0.0006 per share charge; (c) Nasdaq’s best removal tier rate—$0.0002 fees and rebates applicable to Members 3 discontinue the $0.00025 per share per share. The rates, in all cases, are of the Exchange pursuant to EDGA Rule charge for adding liquidity to the EDGA calculated for shares removed from 15.1(a) and (c). All of the changes book in Tape A securities (Flag V) and Nasdaq.’’ Conforming changes have described herein are applicable to EDGA instead offer a rebate of $0.0005 per been made to eliminate the references to Members. The text of the proposed rule share; (d) discontinue the rebate of footnotes 7 and a on Flags 2 and L, as change is available on the Exchange’s $0.00015 per share for removing they are no longer applicable. Internet Web site at http:// liquidity from the EDGA book in Tape The Exchange proposes to implement www.directedge.com. A securities (Flag W) and instead assess these amendments to its fee schedule on a $0.0006 per share charge; (e) August 1, 2011. discontinue the $0.00025 per share 13 15 U.S.C. 78s(b)(2). 2. Statutory Basis 14 charge for adding liquidity to the EDGA 17 CFR 200.30–3(a)(12). The Exchange believes that the 1 15 U.S.C. 78s(b)(1). book in Tape C securities (Flag Y) and proposed rule change is consistent with 2 17 CFR 240.19b–4. instead offer a rebate of $0.0005 per 3 share; (f) discontinue the $0.00025 per the objectives of Section 6 of the A Member is any registered broker or dealer, or 4 any person associated with a registered broker or share charge for adding liquidity in the Exchange Act, in general, and furthers dealer, that has been admitted to membership in the pre- and post-market trading sessions in Exchange. Tapes A and C securities (Flag 3) and 4 15 U.S.C. 78f.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00144 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47284 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

the objectives of Section 6(b)(4),5 in removing liquidity. EDGA believes that public interest, for the protection of particular, as it is designed to provide it is reasonable and equitable to pass on investors, or otherwise in furtherance of for the equitable allocation of reasonable these fees to its members. The Exchange the purposes of the Act. dues, fees and other charges among its believes that the proposed decrease in IV. Solicitation of Comments members and other persons using its rebate is non-discriminatory in that it facilities. applies uniformly to all Members. Interested persons are invited to The Exchange’s proposal to provide a The Exchange believes that the submit written data, views, and rebate of $0.0005 per share for adding proposed elimination of the INET tier in arguments concerning the foregoing, liquidity and assess a charge of $0.0006 footnote 7 represents an equitable including whether the proposed rule per share for removing liquidity is allocation of reasonable dues, fees, and change is consistent with the Act. designed to allow the Exchange to other charges as the INET tier is not Comments may be submitted by any of compete with other market centers, and used by any Members and therefore, its the following methods: at the same time preserve its current elimination will not impact any spread of $0.0001 per share. Because the Members. The proposed elimination of Electronic Comments Exchange’s spread remains at $0.0001 the tier also provides more simplicity to • Use the Commission’s Internet per share under the proposed rate, the the fee schedule. comment form (http://www.sec.gov/ Exchange believes the proposed maker/ The Exchange also notes that it rules/sro.shtml); or taker fee spread to be reasonable. The operates in a highly competitive market • proposed maker/taker spread is in which market participants can Send an e-mail to rule- competitive with other market centers readily direct order flow to competing [email protected]. Please include File maker/taker spreads (BATS BZX venues if they deem fee levels at a Number SR–EDGA–2011–23 on the Exchange, $0.0001 per share), Nasdaq particular venue to be excessive. The subject line. ($.001—($.00045) per share), and NYSE proposed rule change reflects a Paper Comments Arca ($0.0009—($0.0002) per share). competitive pricing structure designed • The Exchange believes that the to incent market participants to direct Send paper comments in triplicate proposed rate is non-discriminatory in their order flow to the Exchange. The to Elizabeth M. Murphy, Secretary, that it applies uniformly to all Members. Exchange believes that the proposed Securities and Exchange Commission, Currently, the Exchange has a taker/ rates are equitable and non- 100 F Street, NE., Washington, DC maker fee structure whereby the discriminatory in that they apply 20549–1090. Exchange assesses a fee of $0.00025 per uniformly to all Members. The All submissions should refer to File share to add liquidity and provides a Exchange believes the fees and credits Number SR–EDGA–2011–23. This file rebate of $0.00015 per share to remove remain competitive with those charged number should be included on the liquidity. By changing its fee structure by other venues and therefore continue subject line if e-mail is used. To help the to the proposed maker/taker model, the to be reasonable and equitably allocated Commission process and review your Exchange will make it less expensive for to Members. comments more efficiently, please use Members to post liquidity to EDGA. As only one method. The Commission will a result, EDGA expects to gain market B. Self-Regulatory Organization’s post all comments on the Commission’s share and see its order volume increase. Statement on Burden on Competition Internet Web site (http://www.sec.gov/ Such increased volume increases The proposed rule change does not rules/sro.shtml). Copies of the potential revenue to the Exchange, and impose any burden on competition that submission, all subsequent would allow the Exchange to spread its is not necessary or appropriate in amendments, all written statements administrative and infrastructure costs furtherance of the purposes of the Act. over a greater number of shares, leading with respect to the proposed rule to lower per share costs. These lower C. Self-Regulatory Organization’s change that are filed with the per share costs would allow the Statement on Comments on the Commission, and all written Exchange to pass on the savings to Proposed Rule Change Received From communications relating to the Members in the form a rebate. The Members, Participants or Others proposed rule change between the Commission and any person, other than increased liquidity also benefits all The Exchange has not solicited, and those that may be withheld from the investors by deepening EDGA’s does not intend to solicit, comments on public in accordance with the liquidity pool, supporting the quality of this proposed rule change. The provisions of 5 U.S.C. 552, will be price discovery, promoting market Exchange has not received any available for Web site viewing and transparency and improving investor unsolicited written comments from printing in the Commission’s Public protection. members or other interested parties. The elimination of the tier described Reference Room, 100 F Street, NE., in footnote 12 (posting 0.9% of the TCV III. Date of Effectiveness of the Washington, DC 20549, on official in average daily volume to EDGA) Proposed Rule Change and Timing for business days between the hours of 10 results from discussions with the Commission Action a.m. and 3 p.m. Copies of the filing also Exchange’s customers whereby the The foregoing rule change has become will be available for inspection and Exchange has concluded that the tier is effective pursuant to Section 19(b)(3) of copying at the principal office of the not effective at incenting liquidity. the Act 6 and Rule 19b–4(f)(2) 7 Exchange. All comments received will The Exchange believes that the thereunder. At any time within 60 days be posted without change; the proposed decrease in rebate associated of the filing of such proposed rule Commission does not edit personal with the BY flag (from $0.0004 per share change, the Commission summarily may identifying information from to $0.0002 per share) represents an temporarily suspend such rule change if submissions. You should submit only equitable allocation of reasonable dues, it appears to the Commission that such information that you wish to make fees, and other charges since it reflects action is necessary or appropriate in the available publicly. All submissions a pass through of the BATS fee for should refer to File Number SR–EDGA– 6 15 U.S.C. 78s(b)(3)(A). 2011–23 and should be submitted on or 5 15 U.S.C. 78f(b)(4). 7 17 CFR 19b–4(f)(2). before August 25, 2011.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00145 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47285

For the Commission, by the Division of the places specified in Item IV below. fees, and other charges since it reflects Trading and Markets, pursuant to delegated The self-regulatory organization has a pass through of the BATS fee for 8 authority. prepared summaries, set forth in removing liquidity. EDGA believes that Elizabeth M. Murphy, sections A, B and C below, of the most it is reasonable and equitable to pass on Secretary. significant aspects of such statements. these fees to its members. The Exchange [FR Doc. 2011–19740 Filed 8–3–11; 8:45 am] A. Self-Regulatory Organization’s believes that the proposed decrease in BILLING CODE 8011–01–P Statement of the Purpose of, and rebate is non-discriminatory in that it Statutory Basis for, the Proposed Rule applies uniformly to all Members. The Exchange believes that the Change SECURITIES AND EXCHANGE proposed elimination of the INET tier in COMMISSION 1. Purpose footnote 7 represents an equitable [Release No. 34–64990; File No. SR–EDGX– Currently, the BY flag is yielded when allocation of reasonable dues, fees, and 2011–22] an order is routed to BATS BYX other charges as the INET tier is not Exchange and removes liquidity using used by any Members and therefore, its Self-Regulatory Organizations; EDGX order types ROUC and ROBY, as elimination will not impact any Exchange, Inc.; Notice of Filing and defined in Exchange Rules 11.9(b)(3)(a) Members. The proposed elimination of Immediate Effectiveness of Proposed and (g). The Exchange proposes to the tier also provides more simplicity to Rule Change Relating to Amendments decrease the rebate from $0.0004 to the fee schedule. to the EDGX Exchange, Inc. Fee $0.0002 when an order is routed to The Exchange notes that it operates in Schedule BATS BYX Exchange and removes a highly competitive market in which market participants can readily direct July 29, 2011. liquidity. The Exchange also proposes to order flow to competing venues if they Pursuant to Section 19(b)(1) of the eliminate the text in footnote 7, which deem fee levels at a particular venue to Securities Exchange Act of 1934 (the describes the INET tier, and replace it be excessive. The proposed rule changes ‘‘Act’’),1 and Rule 19b–4 thereunder,2 with the words ‘‘intentionally omitted.’’ reflect a competitive pricing structure notice is hereby given that on July 27, This tier provides that ‘‘Members designed to incent market participants 2011, the EDGX Exchange, Inc. (the routing an average daily volume to direct their order flow to the ‘‘Exchange’’ or the ‘‘EDGX’’) filed with (‘‘ADV’’): (i) Less than 5,000,000 shares Exchange. The Exchange believes that the Securities and Exchange will be charged $0.0030 per share, as the proposed rates are non- Commission (‘‘Commission’’) the described in the schedule; (ii) equal to discriminatory in that they apply proposed rule change as described in or greater than 5,000,000 shares but less uniformly to all Members. The Items I, II, and III below, which items than 20,000,000 shares will be charged Exchange believes the fees and credits have been prepared by the self- Nasdaq’s best removal tier rate per remain competitive with those charged regulatory organization. The share; (iii) equal to or greater than by other venues and therefore continue Commission is publishing this notice to 20,000,000 shares but less than to be reasonable and equitably allocated solicit comments on the proposed rule 30,000,001 shares will be charged to Members. change from interested persons. Nasdaq’s best removal tier rate—$0.0001 B. Self-Regulatory Organization’s per share; and (iv) equal to or greater I. Self-Regulatory Organization’s Statement on Burden on Competition Statement of the Terms of Substance of than 30,000,001 shares will be charged the Proposed Rule Change Nasdaq’s best removal tier rate—$0.0002 The proposed rule change does not per share. The rates, in all cases, are impose any burden on competition that The Exchange proposes to amend its calculated for shares removed from is not necessary or appropriate in fees and rebates applicable to Members 3 Nasdaq.’’ Conforming changes have furtherance of the purposes of the Act. of the Exchange pursuant to EDGX Rule been made to eliminate the references to 15.1(a) and (c). All of the changes C. Self-Regulatory Organization’s footnotes 7 and a on Flags 2 and L, as described herein are applicable to EDGX Statement on Comments on the they are no longer applicable. Proposed Rule Change Received From Members. The text of the proposed rule The Exchange proposes to implement Members, Participants or Others change is available on the Exchange’s these amendments to its fee schedule on Internet Web site at http:// August 1, 2011. The Exchange has not solicited, and www.directedge.com. does not intend to solicit, comments on 2. Statutory Basis II. Self-Regulatory Organization’s this proposed rule change. The Statement of the Purpose of, and The Exchange believes that the Exchange has not received any Statutory Basis for, the Proposed Rule proposed rule changes are consistent unsolicited written comments from Change with the objectives of Section 6 of the members or other interested parties. Exchange Act,4 in general, and furthers In its filing with the Commission, the the objectives of Section 6(b)(4),5 in III. Date of Effectiveness of the self-regulatory organization included particular, as it is designed to provide Proposed Rule Change and Timing for statements concerning the purpose of, for the equitable allocation of reasonable Commission Action and basis for, the proposed rule change dues, fees and other charges among its The foregoing rule change has become and discussed any comments it received members and other persons using its effective pursuant to Section 19(b)(3) of on the proposed rule change. The text facilities. the Act 6 and Rule 19b–4(f)(2) 7 of these statements may be examined at The Exchange believes that the thereunder. At any time within 60 days proposed decrease in rebate associated of the filing of such proposed rule 8 17 CFR 200.30–3(a)(12). with the BY flag (from $0.0004 per share change, the Commission summarily may 1 15 U.S.C. 78s(b)(1). to $0.0002 per share) represents an temporarily suspend such rule change if 2 17 CFR 240.19b–4. equitable allocation of reasonable dues, it appears to the Commission that such 3 A Member is any registered broker or dealer, or any person associated with a registered broker or dealer, that has been admitted to membership in the 4 15 U.S.C. 78f. 6 15 U.S.C. 78s(b)(3)(A). Exchange. 5 15 U.S.C. 78f(b)(4). 7 17 CFR 19b–4(f)(2).

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00146 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47286 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

action is necessary or appropriate in the For the Commission, by the Division of Percent public interest, for the protection of Trading and Markets, pursuant to delegated 8 investors, or otherwise in furtherance of authority. Non-Profit Organizations With- the purposes of the Act. Elizabeth M. Murphy, out Credit Available Else- Secretary. where: ...... 3.000 IV. Solicitation of Comments [FR Doc. 2011–19747 Filed 8–3–11; 8:45 am] For Economic Injury: Non-Profit Organizations With- Interested persons are invited to BILLING CODE 8011–01–P out Credit Available Else- submit written data, views, and where: ...... 3.000 arguments concerning the foregoing, including whether the proposed rule SMALL BUSINESS ADMINISTRATION The number assigned to this disaster change is consistent with the Act. [Disaster Declaration #12718 and #12719] for physical damage is 12718B and for Comments may be submitted by any of economic injury is 12719B. the following methods: Minnesota Disaster #MN–00033 (Catalog of Federal Domestic Assistance Electronic Comments AGENCY: U.S. Small Business Numbers 59002 and 59008) • Use the Commission’s Internet Administration. James E. Rivera, comment form (http://www.sec.gov/ ACTION: Notice. Associate Administrator for Disaster rules/sro.shtml); or Assistance. • Send an e-mail to rule- SUMMARY: This is a Notice of the Presidential declaration of a major [FR Doc. 2011–19788 Filed 8–3–11; 8:45 am] [email protected]. Please include File BILLING CODE 8025–01–P Number SR–EDGX–2011–22 on the disaster for Public Assistance Only for subject line. the State of Minnesota (FEMA–4009– DR), dated 07/28/2011. SMALL BUSINESS ADMINISTRATION Paper Comments Incident: Severe Storms, Flooding, • Send paper comments in triplicate and Tornadoes. Disaster Declaration #12699 and #12700 to Elizabeth M. Murphy, Secretary, Incident Period: 07/01/2011 through Securities and Exchange Commission, 07/11/2011. Effective Date: 07/28/2011. Puerto Rico Disaster Number PR– 100 F Street, NE., Washington, DC Physical Loan Application Deadline 00013 20549–1090. Date: 09/26/2011. AGENCY: All submissions should refer to File Economic Injury (EIDL) Loan U.S. Small Business Number SR–EDGX–2011–22. This file Application Deadline Date: 04/28/2012. Administration. number should be included on the ADDRESSES: Submit completed loan ACTION: Amendment 1. subject line if e-mail is used. To help the applications to: U.S. Small Business SUMMARY: This is an amendment of the Commission process and review your Administration, Processing and Presidential declaration of a major comments more efficiently, please use Disbursement Center, 14925 Kingsport disaster for Public Assistance Only for only one method. The Commission will Road, Fort Worth, TX 76155. the State of Puerto Rico (FEMA–4004– post all comments on the Commission’s FOR FURTHER INFORMATION CONTACT: A. Internet Web site (http://www.sec.gov/ DR), dated 07/14/2011. Escobar, Office of Disaster Assistance, Incident: Severe Storms, Flooding, rules/sro.shtml). Copies of the U.S. Small Business Administration, submission, all subsequent Mudslides, and Landslides. 409 3rd Street, SW., Suite 6050, Incident Period: 05/20/2011 through amendments, all written statements Washington, DC 20416. with respect to the proposed rule 06/08/2011. SUPPLEMENTARY INFORMATION: Notice is change that are filed with the DATES: Effective Date: 07/28/2011. hereby given that as a result of the Commission, and all written Physical Loan Application Deadline President’s major disaster declaration on communications relating to the Date: 09/12/2011. 07/28/2011, Private Non-Profit proposed rule change between the organizations that provide essential Economic Injury (EIDL) Loan Commission and any person, other than services of governmental nature may file Application Deadline Date: 04/16/2012. those that may be withheld from the disaster loan applications at the address ADDRESSES: Submit completed loan public in accordance with the listed above or other locally announced applications to: U.S. Small Business provisions of 5 U.S.C. 552, will be locations. Administration, Processing and available for Web site viewing and The following areas have been Disbursement Center, 14925 Kingsport printing in the Commission’s Public determined to be adversely affected by Road, Fort Worth, TX 76155. Reference Room, 100 F Street, NE., the disaster: FOR FURTHER INFORMATION CONTACT: A. Washington, DC 20549, on official Primary Counties: Chisago, Isanti, Escobar, Office of Disaster Assistance, business days between the hours of 10 Kandiyohi, Lincoln, Lyon, Mcleod, U.S. Small Business Administration, a.m. and 3 p.m. Copies of the filing also Meeker, Mille Lacs, Pine, Pipestone, 409 3rd Street, SW., Suite 6050, will be available for inspection and Redwood, Renville, Stearns, Yellow Washington, DC 20416. copying at the principal office of the Medicine, The Mille Lacs Band of Exchange. All comments received will SUPPLEMENTARY INFORMATION: The notice Ojibwe. be posted without change; the of the President’s major disaster Commission does not edit personal The Interest Rates are: declaration for Private Non-Profit identifying information from organizations in the State of PUERTO submissions. You should submit only Percent RICO, dated 07/14/2011, is hereby information that you wish to make amended to include the following areas For Physical Damage: as adversely affected by the disaster. available publicly. All submissions Non-Profit Organizations With should refer to File Number SR–EDGX– Credit Available Elsewhere: .. 3.250 Primary Counties: Yabucoa. 2011–22 and should be submitted on or All other information in the original before August 25, 2011. 8 17 CFR 200.30–3(a)(12). declaration remains unchanged.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00147 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47287

(Catalog of Federal Domestic Assistance DEPARTMENT OF TRANSPORTATION Scott, Room 336, Federal Aviation Numbers 59002 and 59008) Administration, AES–300, 950 L’Enfant Federal Aviation Administration Plaza, SW., Washington, DC 20024. James E. Rivera, Public Comments Invited: You are Associate Administrator for Disaster Agency Information Collection asked to comment on any aspect of this Assistance. Activities: Requests for Comments; information collection, including (a) [FR Doc. 2011–19789 Filed 8–3–11; 8:45 am] Clearance of Reinstated Approval of Whether the proposed collection of BILLING CODE 8025–01–P Information Collection: Survey of information is necessary for FAA’s Airman Satisfaction With Aeromedical performance; (b) the accuracy of the Certification Services estimated burden; (c) ways for FAA to SMALL BUSINESS ADMINISTRATION AGENCY: Federal Aviation enhance the quality, utility and clarity Administration (FAA), DOT. of the information collection; and (d) [Disaster Declaration #12651 and #12652] ACTION: Notice and request for ways that the burden could be comments. minimized without reducing the quality Indiana Disaster Number IN–00037 of the collected information. The agency SUMMARY: In accordance with the will summarize and/or include your AGENCY: U.S. Small Business Paperwork Reduction Act of 1995, FAA comments in the request for OMB’s Administration. invites public comments about our clearance of this information collection. ACTION: Amendment 2. intention to request the Office of Issued in Washington, DC, on July 28, Management and Budget (OMB) 2011. approval to reinstate a previously SUMMARY: This is an amendment of the Carla Scott, discontinued information collection. Presidential declaration of a major FAA Information Collection Clearance The Survey of Airman Satisfaction with disaster for Public Assistance Only for Officer, IT Enterprises Business Services Aeromedical Certification Services Division, AES–200. the State of Indiana (FEMA–1997–DR), assesses airman opinion of key dated 06/23/2011. [FR Doc. 2011–19745 Filed 8–3–11; 8:45 am] dimensions of service quality. BILLING CODE 4910–13–P Incident: Severe Storms, Tornadoes, DATES: Written comments should be Straight-line Winds, and Flooding. submitted by October 3, 2011. Incident Period: 04/19/2011 through FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF TRANSPORTATION 06/06/2011. Carla Scott on (202) 385–4293, or by Federal Aviation Administration Effective Date: 07/28/2011. e-mail at: [email protected]. SUPPLEMENTARY INFORMATION: Agency Information Collection Physical Loan Application Deadline OMB Control Number: 2120–0707. Date: 08/22/2011. Activities: Requests for Comments; Title: Survey of Airman Satisfaction Clearance of a New Information Economic Injury (EIDL) Loan with Aeromedical Certification Services. Collection: Commercial Aviation Safety Form Numbers: There are no FAA Application Deadline Date: 03/23/2012. Team Safety Enhancements forms associated with this collection. ADDRESSES: Submit completed loan Type of Review: Reinstatement of an AGENCY: Federal Aviation applications to: U.S. Small Business information collection. Administration (FAA), DOT. Administration, Processing and Background: The FAA, through the ACTION: Notice and Request for Disbursement Center, 14925 Kingsport Office of Aerospace Medicine (OAM), is Comments. Road, Fort Worth, TX 76155. responsible for the medical certification FOR FURTHER INFORMATION CONTACT: A. of pilots and certain other personnel SUMMARY: In accordance with the Escobar, Office of Disaster Assistance, under 14 CFR 67 to ensure they are Paperwork Reduction Act of 1995, FAA U.S. Small Business Administration, medically qualified to operate aircraft invites public comments about our and perform their duties safely. In the 409 3rd Street, SW., Suite 6050, intention to request the Office of accomplishment of this responsibility, Washington, DC 20416. Management and Budget (OMB) OAM provides a number of services to approval for a new information SUPPLEMENTARY INFORMATION: The notice pilots, and has established goals for the collection. The FAA intends to collect of the President’s major disaster performance of those services. This safety-related data regarding the declaration for Private Non-Profit survey is designed to meet the voluntary implementation of organizations in the State of Indiana, requirement to survey stakeholder Commercial Aviation Safety Team dated 06/23/2011, is hereby amended to satisfaction under Executive Order No. (CAST) safety enhancements (SEs) from include the following areas as adversely 12862, ‘‘Setting Customer Service certificate holders conducting affected by the disaster. Standards,’’ and the Government operations under 14 CFR part 121 and Performance and Results Act of 1993 parts 121/135. Primary Counties: Vermillion, Wayne. (GPRA). DATES: Written comments should be Respondents: Approximately 2,333 All other information in the original submitted by October 3, 2011. declaration remains unchanged. pilots and certain other personnel who have applied for medical certification. FOR FURTHER INFORMATION CONTACT: (Catalog of Federal Domestic Assistance Frequency: Information is collected Carla Scott on (202) 385–4293, or by e- Numbers 59002 and 59008) biennially. mail at: [email protected]. Estimated Average Burden per SUPPLEMENTARY INFORMATION: James E. Rivera, Response: 15 minutes. OMB Control Number: 2120–XXXX. Associate Administrator for Disaster Estimated Total Annual Burden: Title: Commercial Aviation Safety Assistance. 583.25 hours. Team Safety Enhancements. [FR Doc. 2011–19790 Filed 8–3–11; 8:45 am] ADDRESSES: Send comments to the FAA Form Numbers: There are no FAA BILLING CODE 8025–01–P at the following address: Ms. Carla forms associated with this collection.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00148 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47288 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Type of Review: Clearance of a new ACTION: Notice of Limitation on Claims such actions were taken, including but information collection. for Judicial Review of Actions by the not limited to: Background: The FAA intends to California Department of Transportation 1. Council on Environmental Quality collect safety-related data regarding the (Caltrans), pursuant to 23 U.S.C. 327. regulations; voluntary implementation of 2. National Environmental Policy Act Commercial Aviation Safety Team SUMMARY: The FHWA, on behalf of (NEPA); safety enhancements from certificate Caltrans, is issuing this notice to 3. Safe, Accountable, Flexible, holders conducting operations under 14 announce actions taken by Caltrans, that Efficient Transportation Equity Act: A CFR part 121 and parts 121/135. The are final within the meaning of 23 Legacy for Users (SAFETEA–LU); FAA is seeking a generic information U.S.C. 139(l)(1). The actions relate to a 4. Department of Transportation Act collection request clearance because this proposed highway project along State of 1966; collection will be composed of a series Route 15, San Diego, CA, PM: R3.8–R6.0 5. Federal Aid Highway Act of 1970; of individual collections using similar in the County of San Diego, State of 6. Clean Air Act Amendments of methods. Certificate-holder California. Those actions grant licenses, 1990; participation in this data collection will permits, and approvals for the project. 7. Clean Water Act of 1977 and 1987; 8. Endangered Species Act of 1973; be voluntary and is not required by DATES: By this notice, the FHWA, on 9. Migratory Bird Treaty Act; regulation. As CAST SEs are finalized, behalf of Caltrans, is advising the public 10. Title VI of the Civil Rights Act of the FAA will determine the details of of final agency actions subject to 23 1964; individual information collections in U.S.C. 139(l)(1). A claim seeking 11. Uniform Relocation Assistance consultation with CAST and certificate judicial review of the Federal agency and Real Property Acquisition Act of holders. actions on the highway project will be 1970; Respondents: Approximately 100 barred unless the claim is filed on or 12. National Historic Preservation Act certificate holders. before January 31, 2012. If the Federal of 1966; Frequency: Information will be law that authorizes judicial review of a 13. Historic Sites Act of 1935; collected on occasion. claim provides a time period of less 14. Executive Order 11990, Protection Estimated Average Burden per than 180 days for filing such claim, then of Wetlands Response: 40 minutes. that shorter time period still applies. 15. Executive Order 13112, Invasive Estimated Total Annual Burden: FOR FURTHER INFORMATION CONTACT: Species; 1333.33 hours. Jamie Le Dent, Associate Environmental 16. Executive Order 11988, ADDRESSES: Send comments to the FAA Planner, Division of Environmental Floodplain Management; and, at the following address: Ms. Carla Analysis, Caltrans, District 11, 4050 17. Executive Order 12898, Scott, Room 336, Federal Aviation Taylor St., San Diego, CA, 91942, Office: Environmental Justice. Administration, AES–300, 950 L’Enfant (619) 688–0157, e-mail: (Catalog of Federal Domestic Assistance Plaza, SW., Washington, DC 20024. [email protected]. Program Number 20.205, Highway Planning Public Comments Invited: You are SUPPLEMENTARY INFORMATION: Effective and Construction. The regulations asked to comment on any aspect of this July 1, 2007, the FHWA assigned, and implementing Executive Order 12372 information collection, including (a) regarding intergovernmental consultation on Caltrans assumed environmental Federal programs and activities apply to this Whether the proposed collection of responsibilities for this project pursuant program.) information is necessary for FAA’s to 23 U.S.C. 327. Notice is hereby given performance; (b) the accuracy of the that Caltrans, has taken final agency Authority: 23 U.S.C. 139(l)(1). estimated burden; (c) ways for FAA to actions subject to 23 U.S.C. 139(l)(1) by Issued on: July 28, 2011. enhance the quality, utility and clarity issuing licenses, permits, and approvals Shawn E. Oliver, of the information collection; and (d) for the following highway project in the South Team Leader, Transportation Engineer, ways that the burden could be State of California: The addition of bus Federal Highway Administration, minimized without reducing the quality rapid transit stations and dedicated Sacramento, California. of the collected information. The agency lanes along State Route 12 between [FR Doc. 2011–19737 Filed 8–3–11; 8:45 am] will summarize and/or include your Interstate 805 and Interstate 8, in the BILLING CODE 4910–RY–P comments in the request for OMB’s City of San Diego. clearance of this information collection. The actions by the Federal agencies, Issued in Washington, DC, on July 28, and the laws under which such actions DEPARTMENT OF TRANSPORTATION 2011. were taken, are described in the Final Federal Motor Carrier Safety Carla Scott, Environmental Assessment (EA) for the Administration FAA Information Collection Clearance project, approved on June 28, 2011 in Officer, IT Enterprises Business Services the FHWA Finding of No Significant [FMCSA Docket No. FMCSA–2011–0125] Division, AES–200. Impacts (FONSI) issued on June 28, [FR Doc. 2011–19744 Filed 8–3–11; 8:45 am] 2011, and in other documents in the Qualification of Drivers; Exemption Applications; Diabetes Mellitus BILLING CODE 4910–13–P FHWA project records. The Initial Study & EA/FONSI, and other project records AGENCY: Federal Motor Carrier Safety are available by contacting Caltrans at Administration (FMCSA), DOT. DEPARTMENT OF TRANSPORTATION the addresses provided above. The ACTION: Notice of Final Disposition. Caltrans Final EA and FONSI can be Federal Highway Administration viewed and downloaded from the SUMMARY: FMCSA announces its Notice of Final Federal Agency Actions project Web site at http:// decision to exempt fifteen individuals on Proposed Highway in California www.dot.ca.gov/dist11/. from its rule prohibiting persons with This notice applies to all Federal insulin-treated diabetes mellitus (ITDM) AGENCY: Federal Highway agency decisions as of the issuance date from operating commercial motor Administration (FHWA), DOT. of this notice and all laws under which vehicles (CMVs) in interstate commerce.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00149 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47289

The exemptions will enable these several risk studies indicated that accomplished in a shorter time frame. individuals to operate CMVs in drivers with diabetes had a higher rate During this 180 day period, the Agency interstate commerce. of crash involvement than the general is legislatively required to publish all DATES: The exemptions are effective population. The diabetes rule provides medical exemption requests in the August 4, 2011. The exemptions expire that ‘‘A person is physically qualified to Federal Register for a 30 day public on August 5, 2013. drive a commercial motor vehicle if that comment period, evaluate and respond FOR FURTHER INFORMATION CONTACT: person has no established medical to all comments received, and publish a Elaine M. Papp, Chief, Medical history or clinical diagnosis of diabetes notice of final disposition to the public Programs, (202) 366–4001, mellitus currently requiring insulin for prior to mailing the exemption if [email protected], FMCSA, Room control’’ (49 CFR 391.41(b)(3)). granted. FMCSA established its diabetes W64–224, Department of Basis for Exemption Determination Transportation, 1200 New Jersey exemption program, based on the Avenue, SE., Washington, DC 20590– Agency’s July 2000 study entitled ‘‘A Under 49 U.S.C. 31136(e) and 31315, 0001. Office hours are from 8:30 a.m. to Report to Congress on the Feasibility of FMCSA may grant an exemption from 5 p.m., Monday through Friday, except a Program to Qualify Individuals with the diabetes standard in 49 CFR Federal holidays. Insulin-Treated Diabetes Mellitus to 391.41(b)(3) if the exemption is likely to Operate in Interstate Commerce as achieve an equivalent or greater level of SUPPLEMENTARY INFORMATION: Directed by the Transportation Act for safety than would be achieved without Electronic Access the 21st Century.’’ The report concluded the exemption. The exemption allows You may see all the comments online that a safe and practicable protocol to the applicants to operate CMVs in through the Federal Document allow some drivers with ITDM to interstate commerce. To evaluate the effect of these Management System (FDMS) at: http:// operate CMVs is feasible. exemptions on safety, FMCSA www.regulations.gov. The September 3, 2003 (68 FR 52441) Docket: For access to the docket to Federal Register notice in conjunction considered medical reports about the read background documents or with the November 8, 2005 (70 FR applicants’ ITDM and vision, and comments, go to http:// 67777) Federal Register notice provides reviewed the treating endocrinologists’ www.regulations.gov and/or Room the current protocol for allowing such medical opinion related to the ability of W12–140 on the ground level of the drivers to operate CMVs in interstate the driver to safely operate a CMV while West Building, 1200 New Jersey commerce. using insulin. Consequently, FMCSA finds that in Avenue, SE., Washington, DC, between These fifteen applicants have had each case exempting these applicants 9 a.m. and 5 p.m., Monday through ITDM over a range of 1 to 31 years. from the diabetes standard in 49 CFR Friday, except Federal holidays. These applicants report no severe Privacy Act: Anyone may search the hypoglycemic reactions resulting in loss 391.41(b)(3) is likely to achieve a level electronic form of all comments of consciousness or seizure, requiring of safety equal to that existing without received into any of DOT’s dockets by the assistance of another person, or the exemption. the name of the individual submitting resulting in impaired cognitive function Conditions and Requirements the comment (or of the person signing that occurred without warning The terms and conditions of the the comment, if submitted on behalf of symptoms, in the past 12 months and no exemption will be provided to the an association, business, labor union, or recurrent (2 or more) severe applicants in the exemption document other entity). You may review DOT’s hypoglycemic episodes in the past 5 and they include the following: (1) That Privacy Act Statement for the Federal years. In each case, an endocrinologist each individual submit a quarterly Docket Management System (FDMS) verified that the driver has monitoring checklist completed by the published in the Federal Register on demonstrated a willingness to properly treating endocrinologist as well as an January 17, 2008 (73 FR 3316), or you monitor and manage his/her diabetes annual checklist with a comprehensive may visit http://edocket.access.gpo.gov/ mellitus, received education related to medical evaluation; (2) that each 2008/pdf/E8-785.pdf. diabetes management, and is on a stable insulin regimen. These drivers report no individual reports within 2 business Background other disqualifying conditions, days of occurrence, all episodes of On June 10, 2011, FMCSA published including diabetes-related severe hypoglycemia, significant a notice of receipt of Federal diabetes complications. Each meets the vision complications, or inability to manage exemption applications from fifteen standard at 49 CFR 391.41(b)(10). diabetes; also, any involvement in an individuals and requested comments The qualifications and medical accident or any other adverse event in from the public (76 FR 34127). The condition of each applicant were stated a CMV or personal vehicle, whether or public comment period closed on July and discussed in detail in the June 10, not it is related to an episode of 11, 2011 and one comment was 2011, Federal Register notice and they hypoglycemia; (3) that each individual received. will not be repeated in this notice. provide a copy of the ophthalmologist’s FMCSA has evaluated the eligibility or optometrist’s report to the medical of the fifteen applicants and determined Discussion of Comment examiner at the time of the annual that granting the exemptions to these FMCSA received one comment in this medical examination; and (4) that each individuals would achieve a level of proceeding. The comment was individual provide a copy of the annual safety equivalent to, or greater than, the considered and discussed below. medical certification to the employer for level that would be achieved by An Anonymous individual wanted to retention in the driver’s qualification complying with the current regulation know why drivers who did not hold a file, or keep a copy in his/her driver’s 49 CFR 391.41(b)(3). CDL were not allowed to work for so qualification file if he/she is self- long. employed. The driver must also have a Diabetes Mellitus and Driving FMCSA is legislatively required to copy of the certification when driving, Experience of the Applicants make a final determination 180 days for presentation to a duly authorized The Agency established the current from the date a complete application Federal, State, or local enforcement standard for diabetes in 1970 because has been received and this is often official.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00150 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47290 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Conclusion Transportation, 1200 New Jersey FMCSA established its diabetes Based upon its evaluation of the Avenue, SE., Washington, DC 20590– exemption program, based on the fifteen exemption applications, FMCSA 0001. Office hours are from 8:30 a.m. to Agency’s July 2000 study entitled ‘‘A exempts, Richard A. Bosma, Ronnie E. 5 p.m., Monday through Friday, except Report to Congress on the Feasibility of Combs, Jr., Barbara A. Farrell, Tony D. Federal holidays. a Program to Qualify Individuals with Gayles, Dennis E. Hoffman, Joshua D. SUPPLEMENTARY INFORMATION: Insulin-Treated Diabetes Mellitus to Operate in Interstate Commerce as Kohl, Clayton K. Lichtenberger, Steven Electronic Access C. Mulder, Judah A. Nell, Ronald A. Directed by the Transportation Act for Sherwood, John A. Svedics, Vincent H. You may see all the comments online the 21st Century.’’ The report concluded Thomas, Jr., Douglas E. Walter, Peter J. through the Federal Document that a safe and practicable protocol to Wasko and Alfred S. Zaladana from the Management System (FDMS) at: http:// allow some drivers with ITDM to ITDM standard in 49 CFR 391.41(b)(3), www.regulations.gov. operate CMVs is feasible. The September 3, 2003 (68 FR 52441) subject to the conditions listed under Docket: For access to the docket to Federal Register notice in conjunction ‘‘Conditions and Requirements’’ above. read background documents or In accordance with 49 U.S.C. 31136(e) comments, go to http:// with the November 8, 2005 (70 FR and 31315 each exemption will be valid www.regulations.gov and/or Room 67777) Federal Register notice provides for two years unless revoked earlier by W12–140 on the ground level of the the current protocol for allowing such FMCSA. The exemption will be revoked West Building, 1200 New Jersey drivers to operate CMVs in interstate if: (1) The person fails to comply with Avenue, SE., Washington, DC, between commerce. These twenty-three applicants have the terms and conditions of the 9 a.m. and 5 p.m., Monday through had ITDM over a range of 1 to 33 years. exemption; (2) the exemption has Friday, except Federal holidays. These applicants report no severe resulted in a lower level of safety than Privacy Act: Anyone may search the hypoglycemic reactions resulting in loss was maintained before it was granted; or electronic form of all comments of consciousness or seizure, requiring (3) continuation of the exemption would received into any of DOT’s dockets by the assistance of another person, or not be consistent with the goals and the name of the individual submitting resulting in impaired cognitive function objectives of 49 U.S.C. 31136(e) and the comment (or of the person signing that occurred without warning 31315. If the exemption is still effective the comment, if submitted on behalf of symptoms, in the past 12 months and no at the end of the 2-year period, the an association, business, labor union, or recurrent (2 or more) severe person may apply to FMCSA for a other entity). You may review DOT’s hypoglycemic episodes in the past 5 renewal under procedures in effect at Privacy Act Statement for the Federal years. In each case, an endocrinologist that time. Docket Management System (FDMS) verified that the driver has published in the Federal Register on Issued on: July 28, 2011. demonstrated a willingness to properly January 17, 2008 (73 FR 3316), or you Larry W. Minor, monitor and manage his/her diabetes may visit http://edocket.access.gpo.gov/ Associate Administrator, Office of Policy. mellitus, received education related to 2008/pdf/E8–785.pdf. [FR Doc. 2011–19829 Filed 8–3–11; 8:45 am] diabetes management, and is on a stable BILLING CODE 4910–EX–P Background insulin regimen. These drivers report no other disqualifying conditions, On June 10, 2011, FMCSA published including diabetes-related a notice of receipt of Federal diabetes DEPARTMENT OF TRANSPORTATION complications. Each meets the vision exemption applications from twenty- standard at 49 CFR 391.41(b)(10). three individuals and requested Federal Motor Carrier Safety The qualifications and medical comments from the public (76 FR Administration condition of each applicant were stated 34130). The public comment period and discussed in detail in the June 10, [FMCSA Docket No. FMCSA–2011–0144] closed on July 11, 2011 and no 2011, Federal Register notice and they comments were received. Qualification of Drivers; Exemption will not be repeated in this notice. Applications; Diabetes Mellitus FMCSA has evaluated the eligibility of the twenty-three applicants and Discussion of Comment AGENCY: Federal Motor Carrier Safety determined that granting the FMCSA did not receive any Administration (FMCSA), DOT. exemptions to these individuals would comments in this proceeding. ACTION: Notice of Final Disposition. achieve a level of safety equivalent to or greater than the level that would be Basis for Exemption Determination SUMMARY: FMCSA announces its achieved by complying with the current Under 49 U.S.C. 31136(e) and 31315, decision to exempt twenty-three regulation 49 CFR 391.41(b)(3). FMCSA may grant an exemption from individuals from its rule prohibiting the diabetes standard in 49 CFR Diabetes Mellitus and Driving persons with insulin-treated diabetes 391.41(b)(3) if the exemption is likely to Experience of the Applicants mellitus (ITDM) from operating achieve an equivalent or greater level of commercial motor vehicles (CMVs) in The Agency established the current safety than would be achieved without interstate commerce. The exemptions standard for diabetes in 1970 because the exemption. The exemption allows will enable these individuals to operate several risk studies indicated that the applicants to operate CMVs in CMVs in interstate commerce. drivers with diabetes had a higher rate interstate commerce. DATES: The exemptions are effective of crash involvement than the general To evaluate the effect of these August 4, 2011. The exemptions expire population. The diabetes rule provides exemptions on safety, FMCSA on August 5, 2013. that ‘‘A person is physically qualified to considered medical reports about the FOR FURTHER INFORMATION CONTACT: drive a commercial motor vehicle if that applicants’ ITDM and vision, and Elaine M. Papp, Chief, Medical person has no established medical reviewed the treating endocrinologists’ Programs, (202) 366–4001, history or clinical diagnosis of diabetes medical opinion related to the ability of [email protected], FMCSA, Room mellitus currently requiring insulin for the driver to safely operate a CMV while W64–224, Department of control’’ (49 CFR 391.41(b)(3)). using insulin.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00151 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47291

Consequently, FMCSA finds that in not be consistent with the goals and personal information provided. Please each case exempting these applicants objectives of 49 U.S.C. 31136(e) and see the Privacy Act heading below for from the diabetes standard in 49 CFR 31315. If the exemption is still effective further information. 391.41(b)(3) is likely to achieve a level at the end of the 2-year period, the Docket: For access to the docket to of safety equal to that existing without person may apply to FMCSA for a read background documents or the exemption. renewal under procedures in effect at comments, go to http:// Conditions and Requirements that time. www.regulations.gov at any time or Issued on: July 28, 2011. Room W12–140 on the ground level of The terms and conditions of the the West Building, 1200 New Jersey exemption will be provided to the Larry W. Minor, Associate Administrator, Office of Policy. Avenue, SE., Washington, DC, between applicants in the exemption document 9 a.m. and 5 p.m., Monday through and they include the following: (1) That [FR Doc. 2011–19826 Filed 8–3–11; 8:45 am] Friday, except Federal holidays. The each individual submit a quarterly BILLING CODE 4910–EX–P Federal Docket Management System monitoring checklist completed by the (FDMS) is available 24 hours each day, treating endocrinologist as well as an 365 days each year. If you want annual checklist with a comprehensive DEPARTMENT OF TRANSPORTATION acknowledgment that we received your medical evaluation; (2) that each comments, please include a self- individual reports within 2 business Federal Motor Carrier Safety addressed, stamped envelope or days of occurrence, all episodes of Administration postcard or print the acknowledgement severe hypoglycemia, significant [Docket No. FMCSA–2011–0192] page that appears after submitting complications, or inability to manage diabetes; also, any involvement in an Qualification of Drivers; Exemption comments on-line. accident or any other adverse event in Applications; Diabetes Mellitus Privacy Act: Anyone may search the a CMV or personal vehicle, whether or electronic form of all comments AGENCY: Federal Motor Carrier Safety not it is related to an episode of received into any of our dockets by the Administration (FMCSA), DOT. hypoglycemia; (3) that each individual name of the individual submitting the provide a copy of the ophthalmologist’s ACTION: Notice of applications for comment (or of the person signing the or optometrist’s report to the medical exemption from the diabetes mellitus comment, if submitted on behalf of an examiner at the time of the annual standard; request for comments. association, business, labor union, etc.). medical examination; and (4) that each You may review DOT’s Privacy Act SUMMARY: FMCSA announces receipt of individual provide a copy of the annual Statement for the FDMS published in applications from 33 individuals for the Federal Register on January 17, medical certification to the employer for exemption from the prohibition against retention in the driver’s qualification 2008 (73 FR 3316), or you may visit persons with insulin-treated diabetes http://edocket.access.gpo.gov/2008/pdf/ file, or keep a copy in his/her driver’s mellitus (ITDM) operating commercial qualification file if he/she is self- E8-785.pdf. motor vehicles (CMVs) in interstate employed. The driver must also have a commerce. If granted, the exemptions FOR FURTHER INFORMATION CONTACT: copy of the certification when driving, would enable these individuals with Elaine M. Papp, Chief, Medical for presentation to a duly authorized ITDM to operate CMVs in interstate Programs, (202) 366–4001, Federal, State, or local enforcement commerce. [email protected], FMCSA, official. Department of Transportation, 1200 DATES: Comments must be received on Conclusion New Jersey Avenue, SE., Room W64– or before September 6, 2011. 224, Washington, DC 20590–0001. Based upon its evaluation of the ADDRESSES: You may submit comments Office hours are from 8:30 a.m. to 5 twenty-three exemption applications, bearing the Federal Docket Management p.m., Monday through Friday, except FMCSA exempts, Edwin K. Anderson, System (FDMS) Docket No. FMCSA– Federal holidays. Albert E. Bankier, Justin C. Brewer, Paul 2011–0192 using any of the following H. Burroughs, Roger W. Carr, Donald E. methods: SUPPLEMENTARY INFORMATION: Flicek, Ronald J. Gasper, David M. • Federal eRulemaking Portal: Go to Background Gastelum, Vernon A. Grimmett, Rodney http://www.regulations.gov. Follow the T. Harper, Stanley Ingram, Rondal W. on-line instructions for submitting Under 49 U.S.C. 31136(e) and 31315, Kennedy, Jerry W. Miller, Richard G. comments. FMCSA may grant an exemption from Pellegrino, Gregg O. Price, Gary D. • Mail: Docket Management Facility; the Federal Motor Carrier Safety Pugliese, Jeffrey A. Radel, Ray J. Stein, U.S. Department of Transportation, 1200 Regulations for a 2-year period if it finds Vladimir V. Tayts, Jady R. Tengs, Carl New Jersey Avenue, SE., West Building ‘‘such exemption would likely achieve a J. Thompson, Dennis M. Thorne and Ground Floor, Room W12–140, level of safety that is equivalent to or Hobert K. Tiller from the ITDM standard Washington, DC 20590–0001. greater than the level that would be in 49 CFR 391.41(b)(3), subject to the • Hand Delivery: West Building achieved absent such exemption.’’ The conditions listed under ‘‘Conditions and Ground Floor, Room W12–140, 1200 statute also allows the Agency to renew Requirements’’ above. New Jersey Avenue, SE., Washington, exemptions at the end of the 2-year In accordance with 49 U.S.C. 31136(e) DC, between 9 a.m. and 5 p.m., Monday period. The 33 individuals listed in this and 31315 each exemption will be valid through Friday, except Federal notice have recently requested such an for two years unless revoked earlier by Holidays. exemption from the diabetes prohibition FMCSA. The exemption will be revoked • Fax: 1–202–493–2251. in 49 CFR 391.41(b)(3), which applies to if: (1) The person fails to comply with Instructions: Each submission must drivers of CMVs in interstate commerce. the terms and conditions of the include the Agency name and the Accordingly, the Agency will evaluate exemption; (2) the exemption has docket numbers for this notice. Note the qualifications of each applicant to resulted in a lower level of safety than that all comments received will be determine whether granting the was maintained before it was granted; or posted without change to http:// exemption will achieve the required (3) continuation of the exemption would www.regulations.gov, including any level of safety mandated by the statutes.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00152 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47292 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Qualifications of Applicants has stable control of his diabetes using the last 5 years. His endocrinologist insulin, and is able to drive a CMV certifies that Mr. Conner understands Michael J. Alexander safely. Mr. Boots meets the requirements diabetes management and monitoring, Mr. Alexander, age 33, has had ITDM of the vision standard at 49 CFR has stable control of his diabetes using since 2011. His endocrinologist 391.41(b)(10). His optometrist examined insulin, and is able to drive a CMV examined him in 2011 and certified that him in 2011 and certified that he does safely. Mr. Conner meets the he has had no severe hypoglycemic not have diabetic retinopathy. He holds requirements of the vision standard at reactions resulting in loss of a Class A CDL from Pennsylvania. 49 CFR 391.41(b)(10). His optometrist consciousness, requiring the assistance examined him in 2011 and certified that Carl D. Braddock of another person, or resulting in he does not have diabetic retinopathy. impaired cognitive function that Mr. Braddock, 57, has had ITDM since He holds a Class A CDL from Illinois. occurred without warning in the past 12 2011. His endocrinologist examined him months and no recurrent (2 or more) in 2011 and certified that he has had no Edna R. Contreras severe hypoglycemic episodes in the severe hypoglycemic reactions resulting Ms. Contreras, 42, has had ITDM last 5 years. His endocrinologist certifies in loss of consciousness, requiring the since 2011. Her endocrinologist that Mr. Alexander understands assistance of another person, or examined her in 2011 and certified that diabetes management and monitoring, resulting in impaired cognitive function she has had no severe hypoglycemic has stable control of his diabetes using that occurred without warning in the reactions resulting in loss of insulin, and is able to drive a past 12 months and no recurrent (2 or consciousness, requiring the assistance Commercial Motor Vehicle (CMV) more) severe hypoglycemic episodes in of another person, or resulting in safely. Mr. Alexander meets the the last 5 years. His endocrinologist impaired cognitive function that requirements of the vision standard at certifies that Mr. Braddock understands occurred without warning in the past 12 49 CFR 391.41(b)(10). His optometrist diabetes management and monitoring, months and no recurrent (2 or more) examined him in 2011 and certified that has stable control of his diabetes using severe hypoglycemic episodes in the he does not have diabetic retinopathy. insulin, and is able to drive a CMV last 5 years. Her endocrinologist He holds a Class E operator’s license safely. Mr. Braddock meets the certifies that Ms. Contreras understands from Missouri. requirements of the vision standard at diabetes management and monitoring, 49 CFR 391.41(b)(10). His optometrist has stable control of her diabetes using Larry E. Baumgartner examined him in 2011 and certified that insulin, and is able to drive a CMV Mr. Baumgartner, 59, has had ITDM he does not have diabetic retinopathy. safely. Ms. Contreras meets the since 2004. His endocrinologist He holds a Class A CDL from Nebraska. requirements of the vision standard at examined him in 2011 and certified that 49 CFR 391.41(b)(10). Her optometrist he has had no severe hypoglycemic Dean A. Chamberlin examined her in 2011 and certified that reactions resulting in loss of Mr. Chamberlin, 37, has had ITDM she does not have diabetic retinopathy. consciousness, requiring the assistance since 1997. His endocrinologist She holds a Class B CDL from Indiana. of another person, or resulting in examined him in 2011 and certified that impaired cognitive function that he has had no severe hypoglycemic Craig E. Cusick occurred without warning in the past 12 reactions resulting in loss of Mr. Cusick, 34, has had ITDM since months and no recurrent (2 or more) consciousness, requiring the assistance 2008. His endocrinologist examined him severe hypoglycemic episodes in the of another person, or resulting in in 2011 and certified that he has had no last 5 years. His endocrinologist certifies impaired cognitive function that severe hypoglycemic reactions resulting that Mr. Baumgartner understands occurred without warning in the past 12 in loss of consciousness, requiring the diabetes management and monitoring, months and no recurrent (2 or more) assistance of another person, or has stable control of his diabetes using severe hypoglycemic episodes in the resulting in impaired cognitive function insulin, and is able to drive a CMV last 5 years. His endocrinologist certifies that occurred without warning in the safely. that Mr. Chamberlin understands past 12 months and no recurrent (2 or Mr. Baumgartner meets the diabetes management and monitoring, more) severe hypoglycemic episodes in requirements of the vision standard at has stable control of his diabetes using the last 5 years. His endocrinologist 49 CFR 391.41(b)(10). His insulin, and is able to drive a CMV certifies that Mr. Cusick understands ophthalmologist examined him in 2011 safely. diabetes management and monitoring, and certified that he has stable Mr. Chamberlin meets the has stable control of his diabetes using nonproliferative diabetic retinopathy. requirements of the vision standard at insulin, and is able to drive a CMV He holds a Class A Commercial Driver’s 49 CFR 391.41(b)(10). His optometrist safely. Mr. Cusick meets the License (CDL) from Colorado. examined him in 2011 and certified that requirements of the vision standard at he does not have diabetic retinopathy. 49 CFR 391.41(b)(10). His optometrist Stanley R. Boots He holds a Class O operator’s license examined him in 2011 and certified that Mr. Boots, 56, has had ITDM since from Nebraska. he does not have diabetic retinopathy. 2005. His endocrinologist examined him He holds a Class C operator’s license Michael W. Conner in 2011 and certified that he has had no from California. severe hypoglycemic reactions resulting Mr. Conner, 56, has had ITDM since in loss of consciousness, requiring the 2009. His endocrinologist examined him Ronald D. Fatka assistance of another person, or in 2011 and certified that he has had no Mr. Fatka, 56, has had ITDM since resulting in impaired cognitive function severe hypoglycemic reactions resulting approximately 10 years ago. His that occurred without warning in the in loss of consciousness, requiring the endocrinologist examined him in 2011 past 12 months and no recurrent (2 or assistance of another person, or and certified that he has had no severe more) severe hypoglycemic episodes in resulting in impaired cognitive function hypoglycemic reactions resulting in loss the last 5 years. His endocrinologist that occurred without warning in the of consciousness, requiring the certifies that Mr. Boots understands past 12 months and no recurrent (2 or assistance of another person, or diabetes management and monitoring, more) severe hypoglycemic episodes in resulting in impaired cognitive function

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00153 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47293

that occurred without warning in the reactions resulting in loss of John H. Krastel past 12 months and no recurrent (2 or consciousness, requiring the assistance Mr. Krastel, 66, has had ITDM since more) severe hypoglycemic episodes in of another person, or resulting in 2009. His endocrinologist examined him the last 5 years. His endocrinologist impaired cognitive function that in 2011 and certified that he has had no certifies that Mr. Fatka understands occurred without warning in the past 12 severe hypoglycemic reactions resulting diabetes management and monitoring, months and no recurrent (2 or more) in loss of consciousness, requiring the has stable control of his diabetes using severe hypoglycemic episodes in the assistance of another person, or insulin, and is able to drive a CMV last 5 years. His endocrinologist certifies resulting in impaired cognitive function safely. Mr. Fatka meets the requirements that Mr. Hernandez understands that occurred without warning in the of the vision standard at 49 CFR diabetes management and monitoring, past 12 months and no recurrent (2 or 391.41(b)(10). His ophthalmologist has stable control of his diabetes using more) severe hypoglycemic episodes in examined him in 2011 and certified that insulin, and is able to drive a CMV the last 5 years. His endocrinologist he does not have diabetic retinopathy. safely. Mr. Hernandez meets the certifies that Mr. Krastel understands He holds a Class A CDL from Iowa. requirements of the vision standard at diabetes management and monitoring, Robert M. Fleming 49 CFR 391.41(b)(10). His optometrist has stable control of his diabetes using examined him in 2011 and certified that Mr. Fleming, 57, has had ITDM since insulin, and is able to drive a CMV he does not have diabetic retinopathy. 1974. His endocrinologist examined him safely. Mr. Krastel meets the He holds a Class A CDL from in 2011 and certified that he has had no requirements of the vision standard at Minnesota. severe hypoglycemic reactions resulting 49 CFR 391.41(b)(10). His in loss of consciousness, requiring the Jeffrey D. Horsey ophthalmologist examined him in 2011 assistance of another person, or and certified that he has stable resulting in impaired cognitive function Mr. Horsey, 53, has had ITDM since nonproliferative diabetic retinopathy. that occurred without warning in the 2008. His endocrinologist examined him He holds a Class A CDL from Iowa. past 12 months and no recurrent (2 or in 2011 and certified that he has had no Joshua L. Kroetch more) severe hypoglycemic episodes in severe hypoglycemic reactions resulting the last 5 years. His endocrinologist in loss of consciousness, requiring the Mr. Kroetch, 30, has had ITDM since certifies that Mr. Fleming understands assistance of another person, or 1985. His endocrinologist examined him diabetes management and monitoring, resulting in impaired cognitive function in 2011 and certified that he has had no has stable control of his diabetes using that occurred without warning in the severe hypoglycemic reactions resulting insulin, and is able to drive a CMV past 12 months and no recurrent (2 or in loss of consciousness, requiring the safely. Mr. Fleming meets the more) severe hypoglycemic episodes in assistance of another person, or requirements of the vision standard at the last 5 years. His endocrinologist resulting in impaired cognitive function 49 CFR 391.41(b)(10). His certifies that Mr. Horsey understands that occurred without warning in the ophthalmologist examined him in 2011 diabetes management and monitoring, past 12 months and no recurrent (2 or and certified that he has stable has stable control of his diabetes using more) severe hypoglycemic episodes in nonproliferative diabetic retinopathy. insulin, and is able to drive a CMV the last 5 years. His endocrinologist He holds a Class A CDL from South safely. Mr. Horsey meets the certifies that Mr. Kroetch understands Dakota. requirements of the vision standard at diabetes management and monitoring, has stable control of his diabetes using David W. Hammons 49 CFR 391.41(b)(10). His ophthalmologist examined him in 2011 insulin, and is able to drive a CMV Mr. Hammons, 39, has had ITDM and certified that he has stable safely. Mr. Kroetch meets the since 2010. His endocrinologist nonproliferative diabetic retinopathy. requirements of the vision standard at examined him in 2010 and certified that He holds a Class A CDL from Delaware. 49 CFR 391.41(b)(10). His optometrist he has had no severe hypoglycemic examined him in 2010 and certified that reactions resulting in loss of Dale A. Iverson he does not have diabetic retinopathy. consciousness, requiring the assistance He holds a Class D operator’s license of another person, or resulting in Mr. Iverson, 55, has had ITDM since from Minnesota. 2009. His endocrinologist examined him impaired cognitive function that Larry D. Lilley occurred without warning in the past 12 in 2011 and certified that he has had no months and no recurrent (2 or more) severe hypoglycemic reactions resulting Mr. Lilley, 66, has had ITDM since severe hypoglycemic episodes in the in loss of consciousness, requiring the 2005. His endocrinologist examined him last 5 years. His endocrinologist certifies assistance of another person, or in 2011 and certified that he has had no that Mr. Hammons understands diabetes resulting in impaired cognitive function severe hypoglycemic reactions resulting management and monitoring, has stable that occurred without warning in the in loss of consciousness, requiring the control of his diabetes using insulin, past 12 months and no recurrent (2 or assistance of another person, or and is able to drive a CMV safely. Mr. more) severe hypoglycemic episodes in resulting in impaired cognitive function Hammons meets the requirements of the the last 5 years. His endocrinologist that occurred without warning in the vision standard at 49 CFR 391.41(b)(10). certifies that Mr. Iverson understands past 12 months and no recurrent (2 or His ophthalmologist examined him in diabetes management and monitoring, more) severe hypoglycemic episodes in 2011 and certified that he does not have has stable control of his diabetes using the last 5 years. His endocrinologist diabetic retinopathy. He holds a Class D insulin, and is able to drive a CMV certifies that Mr. Lilley understands Chauffer’s license from Louisiana. safely. Mr. Iverson meets the diabetes management and monitoring, requirements of the vision standard at has stable control of his diabetes using Frank B. Hernandez 49 CFR 391.41(b)(10). His optometrist insulin, and is able to drive a CMV Mr. Hernandez, 58, has had ITDM examined him in 2011 and certified that safely. Mr. Lilley meets the since 2010. His endocrinologist he does not have diabetic retinopathy. requirements of the vision standard at examined him in 2011 and certified that He holds a Class D operator’s license 49 CFR 391.41(b)(10). His he has had no severe hypoglycemic from Utah. ophthalmologist examined him in 2010

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00154 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47294 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

and certified that he does not have 49 CFR 391.41(b)(10). His optometrist control of his diabetes using insulin, diabetic retinopathy. He holds a Class B examined him in 2011 and certified that and is able to drive a CMV safely. Mr. CDL from Texas. he does not have diabetic retinopathy. Robertson meets the requirements of the He holds a Class A CDL from Maine. vision standard at 49 CFR 391.41(b)(10). Edward J. Linhart His ophthalmologist examined him in David W. Payne Mr. Linhart, 52, has had ITDM since 2011 and certified that he does not have 2008. His endocrinologist examined him Mr. Payne, 44, has had ITDM since diabetic retinopathy. He holds a Class D in 2011 and certified that he has had no 1973. His endocrinologist examined him operator’s license from Kentucky. severe hypoglycemic reactions resulting in 2011 and certified that he has had no in loss of consciousness, requiring the severe hypoglycemic reactions resulting Donald M. Rush, Jr. assistance of another person, or in loss of consciousness, requiring the Mr. Rush, 35, has had ITDM since resulting in impaired cognitive function assistance of another person, or 2010. His endocrinologist examined him that occurred without warning in the resulting in impaired cognitive function in 2011 and certified that he has had no past 12 months and no recurrent (2 or that occurred without warning in the severe hypoglycemic reactions resulting more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or in loss of consciousness, requiring the the last 5 years. His endocrinologist more) severe hypoglycemic episodes in assistance of another person, or certifies that Mr. Linhart understands the last 5 years. His endocrinologist resulting in impaired cognitive function diabetes management and monitoring, certifies that Mr. Payne understands that occurred without warning in the has stable control of his diabetes using diabetes management and monitoring, past 12 months and no recurrent (2 or insulin, and is able to drive a CMV has stable control of his diabetes using more) severe hypoglycemic episodes in safely. Mr. Linhart meets the insulin, and is able to drive a CMV the last 5 years. His endocrinologist requirements of the vision standard at safely. Mr. Payne meets the certifies that Mr. Rush understands 49 CFR 391.41(b)(10). His requirements of the vision standard at diabetes management and monitoring, ophthalmologist examined him in 2011 49 CFR 391.41(b)(10). His has stable control of his diabetes using and certified that he does not have ophthalmologist examined him in 2011 insulin, and is able to drive a CMV diabetic retinopathy. He holds a Class A and certified that he has stable safely. Mr. Rush meets the requirements CDL from Massachusetts. nonproliferative diabetic retinopathy. of the vision standard at 49 CFR He holds a Class A CDL from Kansas. 391.41(b)(10). His optometrist examined Larry D. Matson him in 2011 and certified that he does Matthew B. Rhodes Mr. Matson, 38, has had ITDM since not have diabetic retinopathy. He holds 2010. His endocrinologist examined him Mr. Rhodes, 23, has had ITDM since a Class A CDL from Georgia. in 2011 and certified that he has had no 2008. His endocrinologist examined him severe hypoglycemic reactions resulting in 2011 and certified that he has had no Barry A. Sircy in loss of consciousness, requiring the severe hypoglycemic reactions resulting Mr. Sircy, 52, has had ITDM since assistance of another person, or in loss of consciousness, requiring the 2010. His endocrinologist examined him resulting in impaired cognitive function assistance of another person, or in 2011 and certified that he has had no that occurred without warning in the resulting in impaired cognitive function severe hypoglycemic reactions resulting past 12 months and no recurrent (2 or that occurred without warning in the in loss of consciousness, requiring the more) severe hypoglycemic episodes in past 12 months and no recurrent (2 or assistance of another person, or the last 5 years. His endocrinologist more) severe hypoglycemic episodes in resulting in impaired cognitive function certifies that Mr. Matson understands the last 5 years. His endocrinologist that occurred without warning in the diabetes management and monitoring, certifies that Mr. Rhodes understands past 12 months and no recurrent (2 or has stable control of his diabetes using diabetes management and monitoring, more) severe hypoglycemic episodes in insulin, and is able to drive a CMV has stable control of his diabetes using the last 5 years. His endocrinologist safely. Mr. Matson meets the insulin, and is able to drive a CMV certifies that Mr. Sircy understands requirements of the vision standard at safely. Mr. Rhodes meets the diabetes management and monitoring, 49 CFR 391.41(b)(10). His optometrist requirements of the vision standard at has stable control of his diabetes using examined him in 2011 and certified that 49 CFR 391.41(b)(10). His insulin, and is able to drive a CMV he does not have diabetic retinopathy. ophthalmologist examined him in 2011 safely. Mr. Sircy meets the requirements He holds a Class A CDL from Montana. and certified that he has stable of the vision standard at 49 CFR nonproliferative diabetic retinopathy. 391.41(b)(10). His optometrist examined Michael L. O’Clair He holds a Class D operator’s license him in 2011 and certified that he does Mr. O’Clair, 52, has had ITDM since from Connecticut. not have diabetic retinopathy. He holds 2009. His endocrinologist examined him a Class A CDL from Kentucky. in 2010 and certified that he has had no Jim B. Robertson, II severe hypoglycemic reactions resulting Mr. Robertson, 59, has had ITDM Andre M. St. Pierre in loss of consciousness, requiring the since 1998. His endocrinologist Mr. St. Pierre, 28, has had ITDM since assistance of another person, or examined him in 2011 and certified that 2010. His endocrinologist examined him resulting in impaired cognitive function he has had no severe hypoglycemic in 2011 and certified that he has had no that occurred without warning in the reactions resulting in loss of severe hypoglycemic reactions resulting past 12 months and no recurrent (2 or consciousness, requiring the assistance in loss of consciousness, requiring the more) severe hypoglycemic episodes in of another person, or resulting in assistance of another person, or the last 5 years. His endocrinologist impaired cognitive function that resulting in impaired cognitive function certifies that Mr. O’Clair understands occurred without warning in the past 12 that occurred without warning in the diabetes management and monitoring, months and no recurrent (2 or more) past 12 months and no recurrent (2 or has stable control of his diabetes using severe hypoglycemic episodes in the more) severe hypoglycemic episodes in insulin, and is able to drive a CMV last 5 years. His endocrinologist certifies the last 5 years. His endocrinologist safely. Mr. O’Clair meets the that Mr. Robertson understands diabetes certifies that Mr. St. Pierre understands requirements of the vision standard at management and monitoring, has stable diabetes management and monitoring,

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00155 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47295

has stable control of his diabetes using hypoglycemic episodes in the last 5 resulting in impaired cognitive function insulin, and is able to drive a CMV years. His endocrinologist certifies that that occurred without warning in the safely. Mr. St. Pierre meets the Mr. Vigil understands diabetes past 12 months and no recurrent (2 or requirements of the vision standard at management and monitoring, has stable more) severe hypoglycemic episodes in 49 CFR 391.41(b)(10). His control of his diabetes using insulin, the last 5 years. His endocrinologist ophthalmologist examined him in 2011 and is able to drive a CMV safely. Mr. certifies that Mr. Wheeler understands and certified that he does not have Vigil meets the requirements of the diabetes management and monitoring, diabetic retinopathy. He holds a Class A vision standard at 49 CFR 391.41(b)(10). has stable control of his diabetes using CDL from Arizona. His ophthalmologist examined him in insulin, and is able to drive a CMV 2011 and certified that he has stable safely. Mr. Wheeler meets the John S. Starchevich nonproliferative diabetic retinopathy. requirements of the vision standard at Mr. Starchevich, 71, has had ITDM He holds a Class A CDL from New 49 CFR 391.41(b)(10). His since 2009. His endocrinologist Mexico. ophthalmologist examined him in 2011 examined him in 2011 and certified that and certified that he does not have Charlotte C. Watson he has had no severe hypoglycemic diabetic retinopathy. He holds a Class B reactions resulting in loss of Ms. Watson, 57, has had ITDM since CDL from Connecticut. consciousness, requiring the assistance 2007. Her endocrinologist examined her of another person, or resulting in in 2011 and certified that she has had James J. Wolf, Jr. impaired cognitive function that no severe hypoglycemic reactions Mr. Wolf, 56, has had ITDM since occurred without warning in the past 12 resulting in loss of consciousness, 2010. His endocrinologist examined him months and no recurrent (2 or more) requiring the assistance of another in 2011 and certified that he has had no severe hypoglycemic episodes in the person, or resulting in impaired severe hypoglycemic reactions resulting last 5 years. His endocrinologist certifies cognitive function that occurred without in loss of consciousness, requiring the that Mr. Starchevich understands warning in the past 12 months and no assistance of another person, or diabetes management and monitoring, recurrent (2 or more) severe resulting in impaired cognitive function has stable control of his diabetes using hypoglycemic episodes in the last 5 that occurred without warning in the insulin, and is able to drive a CMV years. Her endocrinologist certifies that past 12 months and no recurrent (2 or safely. Mr. Starchevich meets the Ms. Watson understands diabetes more) severe hypoglycemic episodes in requirements of the vision standard at management and monitoring, has stable the last 5 years. His endocrinologist 49 CFR 391.41(b)(10). His optometrist control of her diabetes using insulin, certifies that Mr. Wolf understands examined him in 2011 and certified that and is able to drive a CMV safely. Ms. diabetes management and monitoring, he does not have diabetic retinopathy. Watson meets the requirements of the has stable control of his diabetes using He holds a Class A CDL from Iowa. vision standard at 49 CFR 391.41(b)(10). insulin, and is able to drive a CMV Her optometrist examined her in 2011 safely. Mr. Wolf meets the requirements Michael B. Tortora and certified that she does not have of the vision standard at 49 CFR Mr. Tortora, 22, has had ITDM since diabetic retinopathy. She holds a Class 391.41(b)(10). His ophthalmologist 2006. His endocrinologist examined him C operator’s license from California. examined him in 2011 and certified that in 2011 and certified that he has had no he does not have diabetic retinopathy. severe hypoglycemic reactions resulting Wayne W. Wenzel He holds a Class A CDL from in loss of consciousness, requiring the Mr. Wenzel, 67, has had ITDM since Pennsylvania. assistance of another person, or 2010. His endocrinologist examined him Request for Comments resulting in impaired cognitive function in 2011 and certified that he has had no that occurred without warning in the severe hypoglycemic reactions resulting In accordance with 49 U.S.C. 31136(e) past 12 months and no recurrent (2 or in loss of consciousness, requiring the and 31315, FMCSA requests public more) severe hypoglycemic episodes in assistance of another person, or comment from all interested persons on the last 5 years. His endocrinologist resulting in impaired cognitive function the exemption petitions described in certifies that Mr. Tortora understands that occurred without warning in the this notice. We will consider all diabetes management and monitoring, past 12 months and no recurrent (2 or comments received before the close of has stable control of his diabetes using more) severe hypoglycemic episodes in business on the closing date indicated insulin, and is able to drive a CMV the last 5 years. His endocrinologist in the date section of the notice. safely. Mr. Tortora meets the certifies that Mr. Wenzel understands FMCSA notes that section 4129 of the requirements of the vision standard at diabetes management and monitoring, Safe, Accountable, Flexible and 49 CFR 391.41(b)(10). His has stable control of his diabetes using Efficient Transportation Equity Act: A ophthalmologist examined him in 2011 insulin, and is able to drive a CMV Legacy for Users requires the Secretary and certified that he does not have safely. Mr. Wenzel meets the to revise its diabetes exemption program diabetic retinopathy. He holds a Class A requirements of the vision standard at established on September 3, 2003 (68 FR CDL from Connecticut. 49 CFR 391.41(b)(10). His optometrist 52441).1 The revision must provide for examined him in 2011 and certified that individual assessment of drivers with Gregory J. Vigil he does not have diabetic retinopathy. diabetes mellitus, and be consistent Mr. Vigil, 52, has had ITDM over 10 He holds a Class A CDL from with the criteria described in section years. His endocrinologist examined Minnesota. 4018 of the Transportation Equity Act him in 2011 and certified that he has for the 21st Century (49 U.S.C. 31305). had no severe hypoglycemic reactions Shaun M. Wheeler Section 4129 requires: (1) Elimination resulting in loss of consciousness, Mr. Wheeler, 40, has had ITDM since of the requirement for 3 years of requiring the assistance of another 1999. His endocrinologist examined him person, or resulting in impaired in 2011 and certified that he has had no 1 Section 4129(a) refers to the 2003 notice as a ‘‘final rule.’’ However, the 2003 notice did not issue cognitive function that occurred without severe hypoglycemic reactions resulting a ‘‘final rule’’ but did establish the procedures and warning in the past 12 months and no in loss of consciousness, requiring the standards for issuing exemptions for drivers with recurrent (2 or more) severe assistance of another person, or ITDM.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00156 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47296 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

experience operating CMVs while being Issued on: July 28, 2011. in partnership—to demonstrate effective treated with insulin; and (2) Larry W. Minor, Transit Asset Management (TAM) establishment of a specified minimum Associate Administrator Office, of Policy. systems and ‘‘best practices’’ which can period of insulin use to demonstrate [FR Doc. 2011–19833 Filed 8–3–11; 8:45 am] be replicated to improve transportation stable control of diabetes before being BILLING CODE asset management at the nation’s rail allowed to operate a CMV. and bus public transportation agencies. In response to section 4129, FMCSA made immediate revisions to the DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: diabetes exemption program established Successful applicants should contact by the September 3, 2003 notice. Federal Transit Administration the appropriate FTA Regional Office FMCSA discontinued use of the 3-year (Appendix) for specific information driving experience and fulfilled the Transit Asset Management (TAM) Pilot regarding applying for the funds. For requirements of section 4129 while Program Funds general information on the TAM Pilot continuing to ensure that operation of Program, contact Doris Lyons Office of CMVs by drivers with ITDM will AGENCY: Federal Transit Administration (FTA), DOT. Program Management, at (202) 366– achieve the requisite level of safety 1656 or [email protected] e-mail, or ACTION: required of all exemptions granted Transit Asset Management Pilot Aaron C. James, Sr., Office of Program Program Announcement of Project under 49 U.S.C. 31136(e). Management, at (202) 493–0107, e-mail: Section 4129(d) also directed FMCSA Selections. [email protected] to ensure that drivers of CMVs with ITDM are not held to a higher standard SUMMARY: The U.S. Department of SUPPLEMENTARY INFORMATION: A total of than other drivers, with the exception of Transportation’s (DOT) Federal Transit $4 million was available for FTA’s SGR limited operating, monitoring and Administration (FTA) announces the Initiative. A total of 15 applicants medical requirements that are deemed selection of projects funded with requested approximately $13 million, medically necessary. Research funds and supplemented by indicating significant demand for funds. The FMCSA concluded that all of the Bus Discretionary funds in support of Project proposals were evaluated based the Transit Asset Management (TAM) operating, monitoring and medical on the criteria detailed in the November Pilot Program, which was announced in requirements set out in the September 3, 19, 2010, Notice of Funding 2003 notice, except as modified, were in the TAM Program Notice of Funding Availability. The transit asset compliance with section 4129(d). Availability on November 19, 2010. The Therefore, all of the requirements set TAM program makes funds available for management pilot projects which are out in the September 3, 2003 notice, public transportation providers, State listed below will help improve except as modified by the notice in the Departments of Transportation (DOT), transportation asset management at the Federal Register on November 8, 2005 and Metropolitan Planning rail and bus public transportation (70 FR 67777), remain in effect. Organizations (MPO)—individually or agencies.

TRANSIT ASSET MANAGEMENT SELECTIONS

State Recipient Allocation

CA ...... Peninsula Corridor Joint Powers Board (CALTRAIN) ...... $750,000 ID ...... Valley Regional Transit ...... 300,000 IL ...... Regional Transportation Authority (Chicago) ...... 800,000 MA ...... Massachusetts Bay Transportation Authority ...... 950,000 UT ...... Utah Transit Authority (UTA) ...... 500,000 VA ...... Virginia Department of Rail and Public Transportation ...... 700,000

4,000,000

Grantees selected for funding should projects have pre-award authority as of other Federal administrative work with their FTA Regional Office the date of this notice. Post-award requirements in carrying out the project (Appendix) to finalize the application in reporting requirements, include but are supported by the FTA grant FTA’s Transportation Electronic Award not limited to submission of the Federal Issued in Washington, DC, this 29th day of Management (TEAM) system, so that Financial Report (FFR) and Milestone July 2011. funds can be obligated expeditiously. Report in TEAM as appropriate (see Funds must be used for projects detailed FTA.C.5010.1D). Peter Rogoff, in the proposals received and for the The grantee must comply with all Administrator. purposes specified in the project applicable Federal statutes, regulations, Appendix descriptions in the table. Selected executive orders, FTA circulars, and

FTA REGIONAL AND METROPOLITAN OFFICES

Mary E. Mello, Regional Administrator, Region 1—Boston, Kendall Robert C. Patrick, Regional Administrator, Region 6—Ft. Worth, 819 Square, 55 Broadway, Suite 920, Cambridge, MA 02142–1093, Tel. Taylor Street, Room 8A36, Ft. Worth, TX 76102, Tel. 817–978–0550. 617–494–2055. States served: Connecticut, Maine, Massachusetts, New Hampshire, States served: Arkansas, Louisiana, Oklahoma, New Mexico and Rhode Island, and Vermont. Texas.

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00157 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47297

FTA REGIONAL AND METROPOLITAN OFFICES—Continued Brigid Hynes-Cherin, Regional Administrator, Region 2—New York, Mokhtee Ahmad, Regional Administrator, Region 7—Kansas City, MO, One Bowling Green, Room 429, New York, NY 10004–1415, Tel. 901 Locust Street, Room 404, Kansas City, MO 64106, Tel. 816– 212–668–2170. 329–3920. States served: New Jersey, New York. States served: Iowa, Kansas, Missouri, and Nebraska. New York Metropolitan Office, Region 2—New York, One Bowling Green, Room 428, New York, NY 10004–1415, Tel. 212–668–2202.

Letitia Thompson, Regional Administrator, Region 3—Philadelphia, Terry Rosapep, Regional Administrator, Region 8—Denver, 12300 1760 Market Street, Suite 500, Philadelphia, PA 19103–4124, Tel. West Dakota Ave., Suite 310, Lakewood, CO 80228–2583, Tel. 720– 215–656–7100. 963–3300. States served: Delaware, Maryland, Pennsylvania, Virginia, West Vir- States served: Colorado, Montana, North Dakota, South Dakota, Utah, ginia, and District of Columbia. and Wyoming. Brian Glenn, Washington, DC Metropolitan Office, 1990 K Street, NW., Room 510, Washington, DC 20006, Tel. 202–219–3562.

Yvette Taylor, Regional Administrator, Region 4—Atlanta, 230 Leslie T. Rogers, Regional Administrator, Region 9—San Francisco, Peachtreet Street, NW., Suite 800, Atlanta, GA 30303, Tel. 404– 201 Mission Street, Room 1650, San Francisco, CA 94105–1926, 865–5600. Tel. 415–744–3133. States served: Alabama, Florida, Georgia, Kentucky, Mississippi, North States served: American Samoa, Arizona, California, Guam, Hawaii, Carolina, Puerto Rico, South Carolina, Tennessee, and Virgin Is- Nevada, and the Northern Mariana Islands. lands. Los Angeles Metropolitan Office, Region 9—Los Angeles, 888 S. Figueroa Street, Suite 1850, Los Angeles, CA 90017–1850, Tel. 213–202–3952. Marisol Simon, Regional Administrator, Region 5—Chicago, 200 West Rick Krochalis, Regional Administrator, Region 10—Seattle, Jackson Adams Street, Suite 320, Chicago, IL 60606, Tel. 312–353–2789. Federal Building, 915 Second Avenue, Suite 3142, Seattle, WA 98174–1002, Tel. 206–220–7954.

States served: Illinois, Indiana, Michigan, Minnesota, Ohio, and Wis- States served: Alaska, Idaho, Oregon, and Washington. consin. Chicago Metropolitan Office, Region 5—Chicago, 200 West Adams Street, Suite 320, Chicago, IL 60606, Tel. 312–353–2789.

[FR Doc. 2011–19708 Filed 8–3–11; 8:45 am] • P.O. Box 14412, Washington, DC consolidating these two bond forms into BILLING CODE P 20044–4412; one single bond form, TTB F 5200.29, • 202–453–2686 (facsimile); or Tobacco Bond, and this consolidation • [email protected] (e-mail). should have been reflected in the June In your comment, please reference the 9, 2011, notice. DEPARTMENT OF THE TREASURY information collection’s title, form, and Therefore, the Department of the OMB number. If you submit your Treasury and TTB, as part of their Alcohol and Tobacco Tax and Trade comment via facsimile, please send no continuing effort to reduce paperwork Bureau more than five 8.5 x 11 inch pages in and respondent burden, invite the Proposed Information Collections; order to ensure electronic access to our general public and other Federal Comment Request equipment. agencies to comment on the corrected FOR FURTHER INFORMATION CONTACT: To information collection listed below in AGENCY: Alcohol and Tobacco Tax and obtain additional information, copies of this notice, as required by the Trade Bureau; Treasury. the information collection and its Paperwork Reduction Act of 1995 (44 ACTION: Correction to Notice and request instructions, or copies of any comments U.S.C. 3501 et seq.). for comments. received, contact Mary A. Wood, Comments submitted in response to Alcohol and Tobacco Tax and Trade this notice will be included or SUMMARY: The Alcohol and Tobacco Tax Bureau, P.O. Box 14412, Washington, summarized in our request for Office of and Trade Bureau is correcting the DC 20044–4412; or telephone 202–453– Management and Budget (OMB) proposed information collection notice 1039, ext. 165. approval of the relevant information it published in the Federal Register on SUPPLEMENTARY INFORMATION: collection. All comments are part of the June 9, 2011 at 76 FR 33811. The Alcohol and Tobacco Tax and public record and subject to disclosure. Specifically, we are correcting the Trade Bureau (TTB) is correcting the Please not do include any confidential information in that notice regarding proposed information collection notice or inappropriate material in your OMB No. 1513–0103. Presently, the it published in the Federal Register on comments. information collection approved under June 9, 2011 at 76 FR 33811. We invite comments on: (a) Whether OMB No. 1513–0103 covers two tobacco Specifically, we are correcting the this information collection is necessary bond forms, which we are consolidating information in that notice regarding for the proper performance of the into a single form. OMB No. 1513–0103, which appeared at agency’s functions, including whether DATES: We must receive your written 76 FR 33813 in the third column. the information has practical utility; (b) comments on or before October 3, 2011. Presently, the information collection the accuracy of the agency’s estimate of ADDRESSES: You may send comments to approved under OMB No. 1513–0103 the information collection’s burden; (c) Mary A. Wood, Alcohol and Tobacco covers two bond forms, TTB F 5200.25, ways to enhance the quality, utility, and Tax and Trade Bureau, at any of these Tobacco Bond—Collateral, and TTB F clarity of the information collected; (d) addresses: 5200.26, Tobacco Bond—Surety. TTB is ways to minimize the information

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00158 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES 47298 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

collection’s burden on respondents, DEPARTMENT OF THE TREASURY income people and communities lacking including through the use of automated adequate access to affordable financial collection techniques or other forms of Community Development Financial products and services. Through the information technology; and (e) Institutions Fund CDFI Program, the CDFI Fund provides: estimates of capital or start-up costs and (1) Financial Assistance (FA) awards to Proposed Collection; Comment costs of operation, maintenance, and CDFIs that have Comprehensive Request purchase of services to provide the Business Plans for creating demonstrable community development requested information. ACTION: Notice and request for impact through the deployment of Corrected Information Collection comments. credit, capital, and financial services SUMMARY: The U.S. Department of the within their respective Target Markets The text regarding the information or the expansion into new Investment collection approved under OMB No. Treasury, as part of its continuing effort to reduce paperwork and respondent Areas, Low-Income Targeted 1513–0103, which appeared in the burden, invites the general public and Populations, or Other Targeted Federal Register on June 9, 2011, at 76 other Federal agencies to take this Populations, and (ii) Technical FR 33813, in the third column, opportunity to comment on proposed Assistance (TA) grants to CDFIs and beginning with the third paragraph, is and/or continuing information entities proposing to become CDFIs in corrected to read as follows: collections, as required by the order to build their capacity to better Title: Tobacco Bond. Paperwork Reduction Act of 1995, address the community development and capital access needs of their OMB Number: 1513–0103. Public Law No. 104–13 (44 U.S.C. 3506(c)(2)(A)). Currently, the existing or proposed Target Markets TTB Form Number: 5200.29. Community Development Financial and/or to become certified CDFIs. Abstract: TTB requires a corporate Institutions Fund (the ‘‘CDFI Fund’’), an In FY 2011, the CDFI Fund surety bond or a collateral bond to office within the Department of the distributed a HFFI–FA Supplemental ensure payment of the Federal excise Treasury, is soliciting comments Questionnaire to FA applicants that met tax on tobacco products and cigarette concerning the CDFI Program Healthy a minimum FA scoring threshold. The papers and tubes removed from the Food Financing Initiative—Financial HFFI–FA Program is one component of the Federal government’s Healthy Food factory or warehouse. TTB F 5200.29 Assistance (HFFI–FA) Supplemental Financing Initiative (HFFI). The HFFI will satisfy all bond requirements for Questionnaire. represents the government’s first tobacco industry members. DATES: Written comments should be coordinated step to eliminate food Manufacturers of tobacco products or received on or before October 3, 2011 to deserts—urban and rural areas in the cigarette papers and tubes and be assured of consideration. United States with limited access to proprietors of export warehouses, along ADDRESS: Direct all comments to Ruth affordable and nutritious food, with corporate sureties, are the Jaure, CDFI Program Manager, at the particularly areas composed of respondents for this form. This form Community Development Financial predominantly lower-income reduces the number of bond forms Institutions Fund, U.S. Department of neighborhoods and communities—by submitted by tobacco industry members the Treasury, 601 13th Street, NW., promoting a wide range of interventions and makes the use of a single bond form Suite 200 South, Washington, DC 20005, that expand the supply of and demand consistent with all other commodities by e-mail to [email protected] or for nutritious foods, including that TTB regulates. by facsimile to (202) 622–7754. Please increasing the distribution of Current Actions: We are submitting note this is not a toll free number. agricultural products; developing and this information collection as a revision FOR FURTHER INFORMATION CONTACT: The equipping grocery stores and to consolidate our two current tobacco HFFI–FA Supplemental Questionnaire strengthening the producer-to-consumer bond forms, TTB F 5200.25 and TTB F may be obtained from the CDFI Program relationship. The questions that the supplemental 5200.26, into one form, TTB F 5200.29. page of the CDFI Fund’s Web site at http://www.cdfifund.gov. Requests for questionnaire contains, and the This single form will be available on our information generated thereby, will Web site, and, in early 2012, tobacco additional information should be directed to Ruth Jaure, CDFI Program enable the Fund to evaluate applicants’ industry members will be able to file activities and determine the extent of this form electronically via TTB’s Manager, Community Development Financial Institutions Fund, U.S. applicants’ eligibility for a CDFI HFFI– Permits Online (PONL) system. Department of the Treasury, 601 13th FA award. Failure to collect this Type of Review: Revision of a Street, NW., Suite 200 South, information could result in improper currently approved collection. Washington, DC 20005, or call (202) uses of Federal funds. Current Actions: Reinstatement with Affected Public: Business or other for- 622–9156. Please note this is not a toll change of a previously approved profit. free number. collection. Estimated Number of Respondents: SUPPLEMENTARY INFORMATION: Type of Review: Regular Review. 66. Title: Healthy Food Financing Affected Public: Certified CDFIs and Initiative—Financial Assistance Estimated Total Annual Burden entities seeking CDFI Certification. Program Supplemental Questionnaire. Estimated Number of Respondents: Hours: 86. OMB Number: 1559–0040. 50. Dated: July 27, 2011. Abstract: The Community Estimated Annual Time per Gerald Isenberg, Development Financial Institutions Respondent: 20 hours. (CDFI) Program was established by the Director, Regulations and Rulings Division. Estimated Total Annual Burden Community Development and Hours: 1,000 hours. [FR Doc. 2011–19738 Filed 8–3–11; 8:45 am] Regulatory Improvement Act of 1994 to Requests for Comments: Comments BILLING CODE 4810–31–P use federal resources to invest in and submitted in response to this notice will build the capacity of CDFIs to serve low- be summarized and/or included in the

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00159 Fmt 4703 Sfmt 4703 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47299

request for Office of Management and DEPARTMENT OF VETERANS FOR FURTHER INFORMATION CONTACT: Budget approval. All comments will AFFAIRS Tony A. Guagliardo, Director, Health become a matter of public record and Eligibility Center, (404) 848–5300 (this may be published on the CDFI Fund Privacy Act of 1974: Computer is not a toll free number). Web site at http://www.cdfifund.gov. Matching Program SUPPLEMENTARY INFORMATION: The Comments are invited on: (a) Whether Department of Veterans Affairs has AGENCY: Department of Veterans Affairs. the collection of information is statutory authorization under 38 U.S.C. necessary for the proper performance of ACTION: Notice of Computer Match 5317, 38 U.S.C. 5106, 26 U.S.C. the functions of the CDFI Fund, Program. 6103(l)(7)(D)(viii) and 5 U.S.C. 552a to including whether the information shall establish matching agreements and have practical utility; (b) the accuracy of SUMMARY: Pursuant to 5 U.S.C. 552a, the request and use income information the CDFI Fund’s estimate of the burden Privacy Act of 1974, as amended, and from other agencies for purposes of of the collection of information; (c) ways the Office of Management and Budget verification of income for determining to enhance the quality, utility, and (OMB) Guidelines on the Conduct of eligibility for benefits. 38 U.S.C. clarity of the information to be Matching Programs, notice is hereby 1710(a)(2)(G), 1720(a)(3), and 1710(b) given that the Department of Veterans collected; (d) ways to minimize the identify those veterans whose basic Affairs (VA) intends to conduct a burden of the collection of information eligibility for medical care benefits is computer matching program with the on respondents, including through the dependent upon their financial status. Internal Revenue Service (IRS). Data Eligibility for nonservice-connected and use of technology; and (e) estimates of from the proposed match will be used zero percent noncompensable service- capital or start-up costs and costs of to verify the earned income of connected veterans is determined based operation, maintenance, and purchase nonservice-connected veterans, and on the veteran’s inability to defray the of services to provide information. those veterans who are zero percent expenses for necessary care as defined The CDFI Fund specifically requests service-connected (noncompensable), in 38 U.S.C. 1722. This determination comments concerning the following: (1) whose eligibility for VA medical care is can affect their responsibility to Whether the use of a different definition based on their inability to defray the participate in the cost of their care for ‘‘food deserts’’ would be more in line cost of medical care. These veterans through copayments and their with CDFI activity in this area; (2) supply household income information assignment to an enrollment priority whether the use of a different definition that includes their spouses and group. for ‘‘healthy foods’’ is needed; (3) dependents at the time of application The goal of this match is to obtain IRS whether the CDFI Fund should allow for for VA health care benefits. unearned income information data additional indicators to describe needs DATES: Effective Date: This match will needed for the income verification in an Applicant’s Target Market; (4) start September 6, 2011, unless process. The VA records involved in the whether the distinct business models comments dictate otherwise. match are ‘‘Enrollment and Eligibility followed by different types of CDFIs Records—VA’’ (147VA16). IRS will ADDRESSES: Written comments may be extract return information with respect (such as loan funds, banks, credit submitted by mail or hand-delivery to unions, and venture capital funds) merit to unearned income from the Director, Regulations Policy and Information Return Master File (IRMF) individualized applications; and (5) the Management (02REG), Department of Processing File, Treas/IRS 22.061, merit of further reducing or increasing Veterans Affairs, 810 Vermont Ave., through the Disclosure of Information to the narrative page limits in the NW., Room 1068, Washington, DC Federal, State and Local Agencies application. 20420; fax to (202) 273–9026; e-mail (DIFSLA) program. A copy of this notice Authority: 12 U.S.C. 1834a, 4703, 4703 through http://www.Regulations.gov. All has been sent to both Houses of note, 4713, 4717; 31 U.S.C. 321; 12 CFR part comments received will be available for Congress and OMB. 1806. public inspection in the Office of This matching agreement expires 18 Regulation Policy and Management, months after its effective date. This Dawn D. Wolfgang, Room 1063B, between the hours of 8 match will not continue past the Treasury PRA Clearance Officer. a.m. and 4:30 p.m., Monday through legislative authorized date to obtain this [FR Doc. 2011–19749 Filed 8–3–11; 8:45 am] Friday (except holidays). Please call information. BILLING CODE 4810–70–P (202) 461–4902 for an appointment (this is not a toll free number). In addition, Approved. July 8, 2011. during the comment period, comments John R. Gingrich, may be viewed online through the Chief of Staff, Department of Veterans Affairs. Federal Docket Management System [FR Doc. 2011–19774 Filed 8–3–11; 8:45 am] (FDMS) at http://www.Regulations.gov. BILLING CODE P

VerDate Mar<15>2010 17:29 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00160 Fmt 4703 Sfmt 9990 E:\FR\FM\04AUN1.SGM 04AUN1 sroberts on DSK5SPTVN1PROD with NOTICES Vol. 76 Thursday, No. 150 August 4, 2011

Part II

Department of Health and Human Services

Centers for Medicare & Medicaid Services 42 CFR Part 418 Medicare Program; Hospice Wage Index for Fiscal Year 2012; Final Rule

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47302 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

DEPARTMENT OF HEALTH AND 1. Background VII. Federalism Analysis HUMAN SERVICES 2. Areas without Hospital Wage Data Addendum A: FY 2012 Wage Index for Urban 3. FY 2012 Wage Index with an Additional Areas Centers for Medicare & Medicaid 15 Percent Reduced Budget Neutrality Addendum B: FY 2012 Wage Index for Rural Services Adjustment Factor (BNAF) Areas 4. Effects of Phasing Out the BNAF B. Aggregate Cap Calculation Methodology I. Background 42 CFR Part 418 1. Cap Determinations for Cap Years A. General [CMS–1355–F] Ending on or Before October 31, 2011 2. Cap Determinations for Cap Years 1. Hospice Care RIN 0938–AQ31 Ending on or After October 31, 2012 3. Patient-by-Patient Proportional Hospice care is an approach to Medicare Program; Hospice Wage Methodology treatment that recognizes that the Index for Fiscal Year 2012 4. Streamlined Methodology impending death of an individual 5. Changing Methodologies warrants a change in the focus from AGENCY: Centers for Medicare & 6. Other Issues curative to palliative care, for relief of Medicaid Services (CMS), HHS. C. Hospice Face-to-Face Requirement pain and for symptom management. The D. Technical Proposals and Clarification ACTION: Final rule. goal of hospice care is to help terminally 1. Hospice Local Coverage Determinations 2. Definition of Hospice Employee ill individuals continue life with SUMMARY: This final rule will set forth 3. Timeframe for Face-to-Face Encounters minimal disruption to normal activities the hospice wage index for fiscal year 4. Hospice Aide and Homemaker Services while remaining primarily in the home (FY) 2012 and continue the phase-out of E. Quality Reporting for Hospices environment. A hospice uses an the wage index budget neutrality 1. Background and Statutory Authority interdisciplinary approach to deliver adjustment factor (BNAF), with an 2. Quality Measures for Hospice Quality medical, nursing, social, psychological, additional 15 percent BNAF reduction, Reporting Program for Payment Year FY emotional, and spiritual services for a total BNAF reduction in FY 2012 2014 through use of a broad spectrum of of 40 percent. The BNAF phase-out will a. Considerations in the Selection of the professional and other caregivers, with Proposed Quality Measures continue with successive 15 percent the goal of making the individual as reductions from FY 2013 through FY b. Proposed Quality Measures for the Quality Reporting Program for Hospices physically and emotionally comfortable 2016. This final rule will change the c. Proposed Timeline for Data Collection as possible. Counseling services and hospice aggregate cap calculation Under the Quality Reporting Program for inpatient respite services are available methodology. This final rule will also Hospices to the family of the hospice patient. revise the hospice requirement for a d. Data Submission Requirements Hospice programs consider both the face-to-face encounter for recertification 3. Public Availability of Data Submitted patient and the family as a unit of care. of a patient’s terminal illness. Finally, 4. Additional Measures Under Section 1861(dd) of the Social this final rule will begin Consideration Security Act (the Act) provides for III. Provisions of the Final Regulations implementation of a hospice quality coverage of hospice care for terminally reporting program. IV. Updates on Issues Not Proposed for FY 2012 Rulemaking ill Medicare beneficiaries who elect to DATES: Effective Date: These regulations A. Update on Hospice Payment Reform and receive care from a participating are effective on October 1, 2011. Value Based Purchasing hospice. Section 1814(i) of the Act FOR FURTHER INFORMATION CONTACT: B. Update on the Redesigned Provider provides payment for Medicare Statistical & Reimbursement Report participating hospices. Robin Dowell, (410) 786–0060 for (PS&R) questions regarding quality reporting V. Collection of Information Requirements 2. Medicare Payment for Hospice Care for hospices and collection of A. Structural Measure: Participation in Sections 1812(d), 1813(a)(4), information requirements. Anjana Quality Assessment Performance 1814(a)(7), 1814(i) and 1861(dd) of the Patel, (410) 786–2120 for questions Improvement Program That Includes at Act, and our regulations at 42 CFR part regarding hospice wage index and Least Three Indicators Related to Patient 418, establish eligibility requirements, hospice face-to-face requirement. Care payment standards and procedures, Katie Lucas, (410) 786–7723 for B. Outcome Measure: NQF Measure #0209, define covered services, and delineate questions regarding all other sections. Percentage of Patients Who Were Uncomfortable Because of Pain on the conditions a hospice must meet to SUPPLEMENTARY INFORMATION: Admission to Hospice Whose Pain Was be approved for participation in the Table of Contents Brought Under Control Within 48 Hours Medicare program. Part 418 subpart G VI. Economic Analyses provides for payment in one of four I. Background A. Regulatory Impact Analysis prospectively-determined rate categories A. General 1. Introduction 1. Hospice Care 2. Statement of Need (routine home care, continuous home 2. Medicare Payment for Hospice Care 3. Overall Impact care, inpatient respite care, and general B. Hospice Wage Index 4. Detailed Economic Analysis inpatient care) to hospices, based on 1. Raw Wage Index Values (Pre-Floor, Pre- a. Effects on Hospices each day a qualified Medicare Reclassified, Hospital Wage Index) b. Hospice Size beneficiary is under a hospice election. 2. Changes to Core-Based Statistical Area c. Geographic Location (CBSA) Designations d. Type of Ownership B. Hospice Wage Index 3. Definition of Rural and Urban Areas e. Hospice Base The hospice wage index is used to 4. Areas Without Hospital Wage Data f. Effects on Other Providers adjust payment rates for hospice 5. CBSA Nomenclature Changes g. Effects on the Medicare and Medicaid agencies under the Medicare program to 6. Wage Data for Multi-Campus Hospitals Programs 7. Hospice Payment Rates h. Accounting Statement reflect local differences in area wage II. Provisions of the Proposed Rule and i. Conclusion levels. Our regulations at § 418.306(c) Analysis of and Response to Public B. Regulatory Flexibility Act Analysis require each hospice’s labor market to Comments C. Unfunded Mandates Reform Act be established using the most current A. FY 2012 Hospice Wage Index Analysis hospital wage data available, including

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47303

any changes by the Office of 1995 notice transmitting the The hospice wage index is updated Management and Budget (OMB) to the recommendations of the Committee (60 annually. Our most recent annual Metropolitan Statistical Areas (MSAs) FR 61264). The Committee also decided hospice wage index Notice with definitions. OMB revised the MSA that for each year in updating the Comment Period, published in the definitions beginning in 2003 with new hospice wage index, aggregate Medicare Federal Register (75 FR 42944) on July designations called the Core Based payments to hospices would remain 22, 2010, set forth updates to the Statistical Areas (CBSAs). For the budget neutral to payments as if the hospice wage index for FY 2011. As purposes of the hospice benefit, the 1983 wage index had been used. noted previously, that update included term ‘‘MSA-based’’ refers to wage index As suggested by the Committee, the second year of a 7-year phase-out of values and designations based on the ‘‘budget neutrality’’ would mean that, in the BNAF, which was applied to the previous MSA designations before 2003. a given year, estimated aggregate wage index values. The BNAF was Conversely, the term ‘‘CBSA-based’’ payments for Medicare hospice services reduced by 10 percent in FY 2010 and refers to wage index values and using the updated hospice values would by additional 15 percent in 2011, for a designations based on the OMB revised equal estimated payments that would total FY 2011 reduction of 25 percent. MSA designations in 2003, which now have been made for these services if the 1. Raw Wage Index Values (Pre-Floor, include CBSAs. In the August 11, 2004 1983 hospice wage index values had Pre-Reclassified Hospital Wage Index) Inpatient Prospective Payment System remained in effect. Although payments (IPPS) final rule (69 FR 48916, 49026), to individual hospice programs would As described in the August 8, 1997 revised labor market area definitions change each year, the total payments hospice wage index final rule (62 FR were adopted at § 412.64(b), which were each year to hospices would not be 42860), the pre-floor and pre- effective October 1, 2004 for acute care affected by using the updated hospice reclassified hospital wage index is used hospitals. We also revised the labor wage index because total payments as the raw wage index for the hospice market areas for hospices using the new would be budget neutral as if the 1983 benefit. These raw wage index values OMB standards that included CBSAs. In wage index had been used. To are then subject to either a budget the FY 2006 hospice wage index final implement this policy, a Budget neutrality adjustment or application of rule (70 FR 45130), we implemented a Neutrality Adjustment Factor (BNAF) the hospice floor to compute the 1-year transition policy using a 50/50 would be computed and applied hospice wage index used to determine blend of the CBSA-based wage index annually to the pre-floor, pre- payments to hospices. values and the Metropolitan Statistical reclassified hospital wage index when Pre-floor, pre-reclassified hospital Area (MSA)-based wage index values for deriving the hospice wage index. wage index values of 0.8 or greater are FY 2006. The one-year transition policy The BNAF is calculated by computing currently adjusted by a reduced BNAF. ended on September 30, 2006. For fiscal estimated payments using the most As noted above, for FY 2011, the BNAF years 2007 and beyond, we have used recent, completed year of hospice was reduced by a cumulative total of 25 CBSAs exclusively to calculate wage claims data. The units (days or hours) percent. Pre-floor, pre-reclassified index values. from those claims are multiplied by the hospital wage index values below 0.8 The original hospice wage index was updated hospice payment rates to are adjusted by the greater of: (1) The based on the 1981 Bureau of Labor calculate estimated payments. For the hospice BNAF, reduced by a total of 25 Statistics hospital data and had not been FY 2011 Hospice Wage Index Notice percent for FY 2011; or (2) the hospice updated since 1983. In 1994, because of with Comment Period, that meant floor (which is a 15 percent increase) disparity in wages from one estimating payments for FY 2011 using subject to a maximum wage index value geographical location to another, a FY 2009 hospice claims data, and of 0.8. For example, if in FY 2011, committee was formulated to negotiate applying the FY 2011 hospice payment County A had a pre-floor, pre- a wage index methodology that could be rates (updating the FY 2010 rates by the reclassified hospital wage index (raw accepted by the industry and the FY 2011 inpatient hospital market wage index) value of 0.3994, we would government. This committee, basket update). The FY 2011 hospice perform the following calculations using functioning under a process established wage index values are then applied to the budget-neutrality factor (which for by the Negotiated Rulemaking Act of the labor portion of the payment rates this example is an unreduced BNAF of 1990, comprised representatives from only. The procedure is repeated using 0.060562, less 25 percent, or 0.045422) national hospice associations; rural, the same claims data and payment rates, and the hospice floor to determine urban, large and small hospices, and but using the 1983 Bureau of Labor County A’s hospice wage index: multi-site hospices; consumer groups; Statistics (BLS)-based wage index Pre-floor, pre-reclassified hospital and a government representative. On instead of the updated raw pre-floor, wage index value below 0.8 multiplied April 13, 1995, the Hospice Wage Index pre-reclassified hospital wage index by the 25 percent reduced BNAF: Negotiated Rulemaking Committee (the (note that both wage indices include (0.3994 × 1.045422 = 0.4175). Committee) signed an agreement for the their respective floor adjustments). The Pre-floor, pre-reclassified hospital methodology to be used for updating the total payments are then compared, and wage index value below 0.8 multiplied hospice wage index. the adjustment required to make total by the hospice floor: (0.3994 × 1.15 = In the August 8, 1997 Federal payments equal is computed; that 0.4593). Register (62 FR 42860), we published a adjustment factor is the BNAF. Based on these calculations, County final rule implementing a new The FY 2010 Hospice Wage Index A’s hospice wage index would be methodology for calculating the hospice Final Rule (74 FR 39384) finalized a 0.4593. wage index based on the provision for a 7-year phase-out of the The BNAF has been computed and recommendations of the negotiated BNAF, which is applied to the wage applied annually, in full or in reduced rulemaking committee. The Committee’s index values. The BNAF was reduced form, to the labor portion of the hospice statement was included in the appendix by 10 percent in FY 2010, an additional payment. Currently, the labor portion of of that final rule (62 FR 42883). 15 percent in FY 2011, and will be the payment rates is as follows: for The reduction in overall Medicare reduced by an additional 15 percent in Routine Home Care, 68.71 percent; for payments if a new wage index were each of the next 5 years, for complete Continuous Home Care, 68.71 percent; adopted was noted in the November 29, phase out in 2016. for General Inpatient Care, 64.01

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47304 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

percent; and for Respite Care, 54.13 4. Areas Without Hospital Wage Data data, is easy to evaluate, is easy to percent. The non-labor portion is equal When adopting OMB’s new labor update from year to year, and uses the to 100 percent minus the labor portion market designations in FY 2006, we most local data available. In the FY 2008 for each level of care. Therefore the non- identified some geographic areas where rule (72 FR at 50217), we noted that in labor portion of the payment rates is as there were no hospitals, and thus, no determining an imputed rural pre-floor, follows: for Routine Home Care, 31.29 hospital wage index data on which to pre-reclassified hospital wage index, we percent; for Continuous Home Care, base the calculation of the hospice wage interpret the term ‘‘contiguous’’ to mean 31.29 percent; for General Inpatient index. Beginning in FY 2006, we sharing a border. For example, in the Care, 35.99 percent; and for Respite adopted a policy to use the FY 2005 pre- case of Massachusetts, the entire rural Care, 45.87 percent. floor, pre-reclassified hospital wage area consists of Dukes and Nantucket counties. We determined that the 2. Changes to Core Based Statistical index value for rural areas when no borders of Dukes and Nantucket Area (CBSA) Designations hospital wage data were available. We also adopted the policy that for urban counties are contiguous with Barnstable The annual update to the hospice labor markets without a hospital from and Bristol counties. Under the adopted wage index is published in the Federal which a hospital wage index data could methodology, the pre-floor, pre- Register and is based on the most be derived, all of the CBSAs within the reclassified hospital wage index values current available hospital wage data, as State would be used to calculate a for the counties of Barnstable (CBSA well as any changes by the OMB to the statewide urban average pre-floor, pre- 12700, Barnstable Town, MA) and definitions of MSAs, which now reclassified hospital wage index value to Bristol (CBSA 39300, Providence-New include CBSA designations. The August use as a reasonable proxy for these Bedford-Fall River, RI–MA) would be 4, 2005 final rule (70 FR 45130) set forth areas. Consequently, in subsequent averaged resulting in an imputed pre- the adoption of the changes discussed in fiscal years, we applied the average pre- floor, pre-reclassified rural hospital the OMB Bulletin No. 03–04 (June 6, floor, pre-reclassified hospital wage wage index for FY 2008. We noted in 2003), which announced revised index data from all urban areas in that the FY 2008 final hospice wage index definitions for Micropolitan Statistical state, to urban areas without a hospital. rule that while we believe that this Areas and the creation of MSAs and In FY 2011, the only such CBSA was policy could be readily applied to other Combined Statistical Areas. In adopting 25980, Hinesville-Fort Stewart, Georgia. rural areas that lack hospital wage data the OMB CBSA geographic Under the CBSA labor market areas, (possibly due to hospitals converting to designations, we provided for a 1-year there are no hospitals in rural locations a different provider type, such as a transition with a blended hospice wage in Massachusetts and Puerto Rico. Since Critical Access Hospital, that does not index for all hospices for FY 2006. For there was no rural proxy for more recent submit the appropriate wage data), if a FY 2006, the hospice wage index rural data within those areas, in the FY similar situation arose in the future, we consisted of a blend of 50 percent of the 2006 hospice wage index proposed rule would re-examine this policy. FY 2006 MSA-based hospice wage (70 FR 22394, 22398), we proposed We also noted that we do not believe index and 50 percent of the FY 2006 applying the FY 2005 pre-floor, pre- that this policy would be appropriate for CBSA based hospice wage index. reclassified hospital wage index value to Puerto Rico, as there are sufficient Subsequent fiscal years have used the rural areas where no hospital wage data economic differences between hospitals full CBSA-based hospice wage index. were available. In the FY 2006 final rule in the United States and those in Puerto 3. Definition of Rural and Urban Areas and in the FY 2007 update notice, we Rico, including the payment of hospitals applied the FY 2005 pre-floor, pre- in Puerto Rico using blended Federal/ Each hospice’s labor market is reclassified hospital wage index data for Commonwealth-specific rates. determined based on definitions of areas lacking hospital wage data in both Therefore, we believe that a separate MSAs issued by OMB. In general, an FY 2006 and FY 2007 for rural and distinct policy is necessary for urban area is defined as an MSA or New Massachusetts and rural Puerto Rico. Puerto Rico. Any alternative England County Metropolitan Area In the FY 2008 final rule (72 FR methodology for imputing a pre-floor, (NECMA), as defined by OMB. Under 50214, 50217) we considered pre-reclassified hospital wage index for § 412.64(b)(1)(ii)(C), a rural area is alternatives to our methodology to rural Puerto Rico would need to take defined as any area outside of the urban update the pre-floor, pre-reclassified into account the economic differences area. The urban and rural area hospital wage index for rural areas between hospitals in the United States geographic classifications are defined in without hospital wage data. We and those in Puerto Rico. Our policy of § 412.64(b)(1)(ii)(A) through (C), and indicated that we believed that the best imputing a rural pre-floor, pre- have been used for the Medicare imputed proxy for rural areas, would: reclassified hospital wage index based hospice benefit since implementation. (1) Use pre-floor, pre-reclassified on the pre-floor, pre-reclassified When the raw pre-floor, pre- hospital data; (2) use the most local data hospital wage index (or indices) of reclassified hospital wage index was available to impute a rural pre-floor, CBSAs contiguous to the rural area in adopted for use in deriving the hospice pre-reclassified hospital wage index; (3) question does not recognize the unique wage index, it was decided not to take be easy to evaluate; and, (4) be easy to circumstances of Puerto Rico. While we into account Inpatient Prospective update from year to year. have not yet identified an alternative Payment System (IPPS) geographic Therefore, in FY 2008 through FY methodology for imputing a pre-floor, reclassifications. This policy of 2011, in cases where there was a rural pre-reclassified hospital wage index for following OMB designations of rural or area without rural hospital wage data, rural Puerto Rico, we will continue to urban, rather than considering some we used the average pre-floor, pre- evaluate the feasibility of using existing Counties to be ‘‘deemed’’ urban, is reclassified hospital wage index data hospital wage data and, possibly, wage consistent with our policy of not taking from all contiguous CBSAs to represent data from other sources. For FY 2008 into account IPPS geographic a reasonable proxy for the rural area. through FY 2011, we have used the reclassifications in determining This approach does not use rural data; most recent pre-floor, pre-reclassified payments under the hospice wage however, the approach, which uses pre- hospital wage index available for Puerto index. floor, pre-reclassified hospital wage Rico, which is 0.4047.

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47305

5. CBSA Nomenclature Changes determining payments for hospice). As set out under new section The OMB regularly publishes a implemented in the August 8, 2008 FY 1814(i)(1)(C)(v) of the Act). Congress bulletin that updates the titles of certain 2009 Hospice Wage Index final rule, for also required, in section 3004(c) of the CBSAs. In the FY 2008 Final Rule (72 the FY 2009 Medicare hospice benefit, Affordable Care Act, that hospices begin FR 50218), we noted that the FY 2008 the hospice wage index was computed submitting quality data, based on rule and all subsequent hospice wage from IPPS wage data (submitted by measures to be specified by the index rules and notices would hospitals for cost reporting periods Secretary, for FY 2014 and subsequent incorporate CBSA changes from the beginning in FY 2004 (as was the FY fiscal years. Beginning in FY 2014, 2008 IPPS wage index)), which hospices which fail to report quality most recent OMB bulletins. The OMB allocated salaries and hours to the data will have their market basket bulletins may be accessed at http:// campuses of two multi-campus update reduced by 2 percentage points. www.whitehouse.gov/omb/bulletins/ hospitals with campuses that are located index.html. II. Provisions of the Proposed Rule and in different labor areas, one in Analysis of and Response to Public 6. Wage Data From Multi-Campus Massachusetts and another in Illinois. Comments Hospitals Thus, in FY 2009 and subsequent fiscal Historically, under the Medicare years, hospice wage index values for the A. FY 2012 Hospice Wage Index following CBSAs have been affected by hospice benefit, we have established 1. Background this policy: Boston-Quincy, MA (CBSA hospice wage index values calculated As previously noted, the hospice final from the raw pre-floor, pre-reclassified 14484), Providence-New Bedford-Falls River, RI-MA (CBSA 39300), Chicago- rule published in the Federal Register hospital wage data (also called the IPPS on December 16, 1983 (48 FR 56008) wage index) without taking into account Naperville-Joliet, IL (CBSA 16974), and Lake County-Kenosha County, IL-WI provided for adjustment to hospice geographic reclassification under (CBSA 29404). payment rates to reflect differences in sections 1886(d)(8) and (d)(10) of the area wage levels. We apply the Act. The wage adjustment established 7. Hospice Payment Rates appropriate hospice wage index value to under the Medicare hospice benefit is Section 4441(a) of the Balanced the labor portion of the hospice based on the location where services are Budget Act of 1997 (BBA) amended payment rates based on the geographic furnished without any reclassification. section 1814(i)(1)(C)(ii) of the Act to area where hospice care was furnished. For FY 2011, the data collected from establish updates to hospice rates for As noted earlier, each hospice’s labor cost reports submitted by hospitals for FYs 1998 through 2002. Hospice rates market area is based on definitions of cost reporting periods beginning during were to be updated by a factor equal to MSAs issued by the OMB. In the FY 2006 were used to compute the 2010 the market basket index, minus 1 proposed rule, and in this final rule, we raw pre-floor, pre-reclassified hospital percentage point. Payment rates for FYs are using the pre-floor, pre-reclassified wage index data, without taking into since 2002 have been updated according hospital wage index, based solely on the account geographic reclassification to section 1814(i)(1)(C)(ii)(VII) of the CBSA designations, as the basis for under sections 1886(d)(8) and (d)(10) of Act, which states that the update to the determining wage index values for the the Act. This 2010 raw pre-floor, pre- payment rates for subsequent fiscal FY 2012 hospice wage index. reclassified hospital wage index was years will be the market basket As noted above, our hospice payment used to derive the applicable wage percentage for the fiscal year. It has been rules utilize the wage adjustment factors index values for the hospice wage index longstanding practice to use the used by the Secretary for purposes of because these data (FY 2006) were the inpatient hospital market basket as a section 1886(d)(3)(E) of the Act for most recent complete cost data. proxy for a hospice market basket. hospital wage adjustments. In the Beginning in FY 2008, the IPPS Historically, the rate update has been proposed rule, and in this final rule, we apportioned the wage data for multi- published through a separate are again using the pre-floor and pre- campus hospitals located in different administrative instruction issued reclassified hospital wage index data as labor market areas (CBSAs) to each annually in the summer to provide the basis to determine the hospice wage CBSA where the campuses were located adequate time to implement system index, which is then used to adjust the (see the FY 2008 IPPS final rule with change requirements. Hospices labor portion of the hospice payment comment period (72 FR 47317 through determine their payments by applying rates based on the geographic area 47320)). We are continuing to use the the hospice wage index in this final rule where the beneficiary receives hospice raw pre-floor, pre-reclassified hospital to the labor portion of the published care. We believe the use of the pre-floor, wage data as a basis to determine the hospice rates. Section 3401(g) of the pre-reclassified hospital wage index hospice wage index values because Affordable Care Act of 2010 requires data, as a basis for the hospice wage hospitals and hospices both compete in that, in FY 2013 (and in subsequent index, results in the appropriate the same labor markets, and therefore, fiscal years), the market basket adjustment to the labor portion of the experience similar wage-related costs. percentage update under the hospice costs. For the FY 2012 update to the We note that the use of raw pre-floor, payment system as described in section hospice wage index, we are continuing pre-reclassified hospital (IPPS) wage 1814(i)(1)(C)(ii)(VII) or section to use the most recent pre-floor, pre- data used to derive the FY 2012 hospice 1814(i)(1)(C)(iii) be annually reduced by reclassified hospital wage index wage index values reflects the changes in economy-wide productivity available at the time of publication. application of our policy to use those as set out at section 1886(b)(3)(B)(xi)(II) We received three comments data to establish the hospice wage of the Act. Additionally, section 3401(g) regarding the wage index. index. The FY 2012 hospice wage index of the Affordable Care Act requires that Comment: A commenter was values presented in this final rule were in FY 2013 through FY 2019, the market concerned that the wage index computed consistent with our raw pre- basket percentage update under the continues to provide a significantly floor, pre-reclassified hospital (IPPS) hospice payment system be reduced by lower wage index to rural counties and wage index policy (that is, our historical an additional 0.3 percentage point indicated that cuts affect rural areas policy of not taking into account IPPS (although the potential reduction is more than urban areas. The commenter geographic reclassifications in subject to suspension under conditions asked that we move to a more accurate

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47306 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

and fair index as recommended by the Rates’’ proposed rule, published May 5, 2012, and we are implementing this Medicare Payment Advisory 2011 in the Federal Register (76 FR policy in this final rule. Commission (MedPAC). In addition, the 25788). However, as we noted section I.B.4 of commenter felt that the pre-floor, pre- In the future, when reforming the this final rule, we do not believe that reclassified hospital wage index with hospice payment system, we will this policy is appropriate for Puerto only the hospice floor is not a good consider wage index alternatives if Rico. For FY 2012, we again proposed policy. The same commenter suggested alternatives are available. to continue to use the most recent pre- that we maintain the BNAF until a more Each hospice’s labor market area is floor, pre-reclassified hospital wage equitable wage index can be developed. based on definitions of MSAs issued by index value available for Puerto Rico, Two commenters wanted the Office of Management and Budget which is 0.4047. This pre-floor, pre- Montgomery County, Maryland to be (OMB), not CMS. For this final rule, we reclassified hospital wage index value moved from its current CBSA and are using the pre-floor, pre-reclassified was then adjusted upward by the placed into CBSA 47894 for number of hospital wage index, based solely on the hospice 15 percent floor adjustment in reasons. One of the reasons a CBSA designations, as the basis for the computing of the proposed FY 2012 commenter described was that in FY determining wage index values for the hospice wage index. We are continuing 2012, hospices in CBSA 47894 will be FY 2012 hospice wage index. In to follow this policy in this final rule. paid at a rate 4.0 percent greater than summary, we continue to believe that We received no comments regarding the payment given to hospices in the pre-floor, pre-reclassified hospital continuing this policy for areas without Montgomery County’s current CBSA. wage index, which is updated yearly hospital wage data. The commenter indicated that this rate and is used by many other CMS 3. FY 2012 Wage Index With an differential creates significant hardship payment systems, is the most and results in loss of revenue. The Additional 15 Percent Reduced Budget appropriate method available to account Neutrality Adjustment Factor (BNAF) commenter also indicated that by not for geographic variances in labor costs changing, CMS is discriminating against for hospices for FY 2012. The hospice wage index set forth in the Medicare beneficiaries living in this final rule would be effective Montgomery County because it is 2. Areas Without Hospital Wage Data October 1, 2011 through September 30, financially jeopardizing the hospices In adopting the CBSA designations, 2012. We did not propose and are not that serve them. we identified some geographic areas finalizing any modifications to the Response: We thank the commenters. hospice wage index methodology. For The pre-floor, pre-reclassified hospital where there are no hospitals, and no this final rule, the FY 2011 hospital wage index was adopted in 1998 as the hospital wage data on which to base the wage index was the most current wage index from which the hospice calculation of the hospice wage index. hospital wage data available for wage index is derived by a committee of These areas are described in section calculating the FY 2012 hospice wage CMS (then Health Care Financing I.B.4 of this final rule. Beginning in FY index values. We used the FY 2011 pre- Administration) and industry 2006, we adopted a policy that, for floor, pre-reclassified hospital wage representatives as part of a negotiated urban labor markets without an urban index data for this calculation. rulemaking effort. The Negotiated hospital from which a pre-floor, pre- Rulemaking Committee considered reclassified hospital wage index can be As noted above, for this FY 2012 wage several wage index options: (1) derived, all of the urban CBSA pre-floor, index final rule, the hospice wage index Continuing with Bureau of Labor pre-reclassified hospital wage index values are based solely on the adoption Statistics data; (2) using updated values within the State would be used of the CBSA-based labor market hospital wage data; (3) using hospice- to calculate a statewide urban average definitions and the hospital wage index. specific data; and (4) using data from pre-floor, pre-reclassified hospital wage We continue to use the most recent pre- the physician payment system. The index to use as a reasonable proxy for floor and pre-reclassified hospital wage Committee determined that the pre- these areas. Currently, the only CBSA index data available (based on FY 2007 floor, pre-reclassified hospital wage that would be affected by this policy is hospital cost report wage data). A index was the best option for hospice. CBSA 25980, Hinesville-Fort Stewart, detailed description of the methodology The pre-floor, pre-reclassified hospital Georgia. We proposed to continue this used to compute the hospice wage index wage index is updated annually, and policy for FY 2012 and have applied is contained in the September 4, 1996 reflects the wages of highly skilled this policy in this final rule. hospice wage index proposed rule (61 hospital workers. Currently, the only rural areas where FR 46579), the August 8, 1997 hospice We also note that section 3137(b) of there are no hospitals from which to wage index final rule (62 FR 42860), and the Affordable Care Act requires us to calculate a pre-floor, pre-reclassified the August 6, 2009 FY 2010 Hospice submit to Congress a report that hospital wage index are Massachusetts Wage Index final rule (74 FR 39384). includes a plan to reform the hospital and Puerto Rico. In August 2007 (72 FR The August 6, 2009 FY 2010 Hospice wage index system. This provision was 50217), we adopted a methodology for Wage Index final rule finalized a enacted in response to MedPAC’s imputing rural pre-floor, pre-reclassified provision to phase out the BNAF over suggestions, which included a hospital wage index values for areas seven years, with a 10 percent reduction suggestion that the hospital wage index where no hospital wage data are in the BNAF in FY 2010, and an minimize wage index adjustments available as an acceptable proxy; that additional 15 percent reduction in FY between and within metropolitan methodology is also described in section 2011, and additional 15 percent statistical areas and statewide rural I.B.4 of this final rule. In FY 2012, reductions in each of the next five years, areas. The latest information on hospital Dukes and Nantucket Counties are the with complete phase out in FY 2016. wage index reform is discussed in the only areas for rural Massachusetts Therefore, in accordance with the ‘‘Proposed Changes to the Hospital which are affected. We again proposed August 6, 2009, FY 2010 Hospice Wage Inpatient Prospective Payment Systems to apply this methodology for imputing Index final rule, the BNAF for FY 2012 for Acute Care Hospitals and the Long- a rural pre-floor, pre-reclassified was reduced by an additional 15 percent Term Care Hospital Prospective hospital wage index for those rural areas for a total BNAF reduction of 40 percent Payment System and Fiscal Year 2012 without rural hospital wage data in FY (10 percent from FY 2010, additional 15

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47307

percent from FY 2011, and additional 15 fiscal year 2013, are also outside the additional 15 percent reduction in the percent for FY 2012). scope of this rule. We acknowledge that BNAF, for a total BNAF reduction of 40 For this final rule, an unreduced there was a single erroneous reference to percent, on the final FY 2012 hospice BNAF for FY 2012 is computed to be the BNAF reduction as a proposal; wage index compared to remaining with 0.058593 (or 5.8593 percent). A 40 however, as noted on page 26808 of the the total 25 percent reduced BNAF percent reduced BNAF, which is proposed rule, and in multiple other which was used for the FY 2011 hospice subsequently applied to the pre-floor, locations throughout the proposed rule, wage index. The additional 15 percent pre-reclassified hospital wage index the BNAF phase-out was already settled BNAF reduction applied to the final FY values greater than or equal to 0.8, is for the remaining years of the phase-out, 2012 wage index resulted in a (rounded) computed to be 0.035156 (or 3.5156 as described in the FY 2010 Hospice 0.9 percent reduction in wage index percent). Pre-floor, pre-reclassified Wage Index final rule (74 FR 39384). values in 39.7 percent of CBSAs, a 0.8 hospital wage index values which are However, we are sensitive to the percent reduction in wage index values less than 0.8 are subject to the hospice issues raised by commenters, and to the in 53.0 percent of CBSAs, a 0.6 or 0.7 floor calculation; that calculation is possible effects of the BNAF reduction percent reduction in wage index values described in section I.B.1. The BNAF is on access to care. We continue to in 0.7 percent of CBSAs, and no updated compared to the proposed rule monitor for unintended consequences reduction in wage index values in 6.5 based on availability of more complete associated with the BNAF phase-out. percent of CBSAs. Note that these are data. Our analysis reveals an overall growth reductions in wage index values, not in The final hospice wage index for FY in number of hospices since the start of payments. Please see Table 1 in section 2012 is shown in Addenda A and B; the the phase-out. Additionally, we see no VI of this rule for the effects on wage index values shown already have data which would indicate that hospices payments. The wage index values in the BNAF reduction applied. in rural areas are closing. Addenda A and B already reflect the Specifically, Addendum A reflects the We also note that the hospice wage additional 15 percent BNAF reduction. final FY 2012 wage index values for index includes a floor calculation which Those CBSAs whose pre-floor, pre- urban areas under the CBSA benefits many rural providers. We are reclassified hospital wage index values designations. Addendum B reflects the sensitive to concerns from rural had the hospice 15 percent floor final FY 2012 wage index values for hospices that the additional time and adjustment applied before the BNAF rural areas under the CBSA distance required to visit a rural patient reduction would not be affected by this designations. adds significantly to their costs. We do ongoing phase out of the BNAF. These We received five comments regarding not have the authority to change the CBSAs, which typically include rural the BNAF. hospice rates beyond the limits set out areas, are protected by the hospice 15 Comment: A few commenters were in the statute. We will consider the percent floor adjustment. We estimate pleased with overall increase in the situation of rural providers in the that 29 CBSAs are already protected by hospice payments for fiscal year 2012. context of broader hospice payment the hospice 15 percent floor adjustment, Some commenters continued to voice system reform. We appreciate the and are therefore completely unaffected opposition to the BNAF reduction; analyses shared by the commenter. by the BNAF reduction. There are 325 several were concerned about the hospices in these 29 CBSAs. impact of the BNAF phase-out, coupled 4. Effects of Phasing Out the BNAF Additionally, some CBSAs with pre- with the productivity adjustment which The full (unreduced) BNAF calculated floor, pre-reclassified wage index values begins in FY 2013. One commenter for the FY 2012 final rule is 5.8593 less than 0.8 will become newly eligible provided analysis which suggested that percent. As implemented in the August for the hospice 15 percent floor estimated mean hospice profit margins 6, 2009 FY 2010 Hospice Wage Index adjustment as a result of the additional would decrease, and noted that many final rule (74 FR 39384), for FY 2012 we 15 percent reduction in the BNAF hospices can’t absorb these reductions. are reducing the BNAF by an additional applied in FY 2012. Areas where the Commenters were concerned that 15 percent, for a total BNAF reduction hospice floor calculation would have hospices would be forced to close, of 40 percent (a 10 percent reduction in yielded a wage index value greater than which could create access issues for FY 2010 plus a 15 percent reduction in 0.8 if the 25 percent reduction in BNAF patients, put at risk the quality of care, FY 2011 plus a 15 percent reduction in were maintained, but which will have a and ultimately increase Medicare costs. FY 2012), with additional reductions of final wage index value less than 0.8 Several commenters noted that rate 15 percent per year in each of the next after the additional 15 percent reduction reductions disproportionately affect 4 years until the BNAF is phased out in in the BNAF (for a total BNAF reduction rural providers. One wrote that rural FY 2016. of 40 percent) is applied, will now be providers have higher costs of care than For FY 2012, this is mathematically eligible for the hospice 15 percent floor urban hospices, and yet also have a equivalent to taking 60 percent of the adjustment. These CBSAs will see a payment reduction due to lower rural full BNAF value, or multiplying 0.58593 smaller reduction in their hospice wage wage index values. This commenter by 0.60, which equals 0.035156 (3.5156 index values since the hospice 15 asked for a rural add-on, or at least percent). The BNAF of 3.5156 percent percent floor adjustment will apply. We parity. Another commenter asked that reflects a 40 percent reduction in the estimate that 3 CBSAs will have their we create ‘‘critical access’’ hospices in BNAF. The 40 percent reduced BNAF pre-floor, pre-reclassified hospital wage rural areas to protect rural providers. (3.5156 percent) was applied to the pre- index value become newly protected by Response: We thank the commenters. floor, pre-reclassified hospital wage the hospice 15 percent floor adjustment The BNAF phase-out was finalized in index values of 0.8 or greater in the final due to the additional 15 percent the August 6, 2009 final rule. Comments FY 2012 hospice wage index. reduction in the BNAF applied in the opposing the BNAF reductions are The hospice floor calculation still final FY 2012 hospice wage index. outside the scope of this rule because applies to any pre-floor, pre-reclassified Because of the protection given by the we finalized this policy in FY 2010. hospital wage index values less than hospice 15 percent floor adjustment, Comments surrounding the productivity 0.8. The hospice floor calculation is these CBSAs will see smaller percentage adjustment, which the Affordable Care described in section I.B.1 of this final decreases in their hospice wage index Act mandates be applied beginning in rule. We examined the effects of an values than those CBSAs that are not

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47308 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

eligible for the hospice 15 percent floor adjustment. They suggested revising the 1. Cap Determinations for Cap Years adjustment. This will affect those description of the BNAF reduction and Ending on or Before October 31, 2011 hospices with lower hospice wage index the market basket increase to further By its terms, the relief provided in values, which are typically in rural describe the effect of each of the Ruling CMS–1355–R applies only to areas. There are 44 hospices located in components which affect hospice rates those cap years for which a hospice has these 3 CBSAs. in section II.A.4 of the final rule. received an overpayment determination Finally, the hospice wage index Response: We have clarified the and filed a timely qualifying appeal. For values only apply to the labor portion of language about the BNAF reduction and any hospice that receives relief pursuant the payment rates; the labor portion is the market basket increase in this to Ruling CMS–1355–R in the form of a described in section I.B.1 of this final section. recalculation of one or more of its cap rule. Therefore, the projected reduction determinations, or for any hospice that in payments due solely to the additional B. Aggregate Cap Calculation 15 percent reduction of the BNAF Methodology receives relief from a court after applied in FY 2012 is estimated to be challenging the validity of the cap The existing methodology for regulation, we proposed that the 0.6 percent, as calculated from the counting Medicare beneficiaries in 42 difference in column 3 and column 4 of hospice’s cap determination for any CFR 418.309 has been the subject of subsequent cap year also be calculated Table 1 in section VI of this final rule. substantial litigation. Specifically, the In addition, the estimated effects of the using a patient-by-patient proportional lawsuits challenge the way CMS methodology as opposed to the phase-out of the BNAF will be mitigated apportions hospice patients with care by any inpatient hospital market basket methodology set forth in 42 CFR spanning more than one year when 418.309(b)(1). The patient-by-patient updates in payments. The final calculating the cap. inpatient hospital market basket update proportional methodology is defined A number of district courts and two below in section II.B.3. for FY 2012 is 3.0 percent; this 3.0 appellate courts have concluded that percent does not reflect the provision in Additionally, there are hospices that CMS’ current methodology used to have not filed an appeal of an the Affordable Care Act which reduces determine the number of Medicare the inpatient hospital market basket overpayment determination challenging beneficiaries used in the aggregate cap the validity of 42 CFR 418.309(b)(1) and update for FY 2012 by 0.1 percentage calculation is not consistent with the point, since that reduction does not which are awaiting for CMS to make a statute. We continue to believe that the cap determination for cap years ending apply to hospices. The final update is methodology set forth in § 418.309(b)(1) communicated through an on or before October 31, 2011. We is consistent with the Medicare statute. proposed to allow any such hospice administrative instruction. Nonetheless, we have determined that it The combined estimated effects of the provider, as of October 1, 2011, to elect is in the best interest of CMS and the updated wage data, an additional 15 to have its final cap determination for Medicare program to take action to percent reduction of the BNAF, and the such cap year(s), and all subsequent cap prevent future litigation, and alleviate final inpatient hospital market basket years, calculated using the patient-by- the litigation burden on providers, CMS, update are shown in Table 1 in section patient proportional methodology. and the courts. On April 14, 2011, we VI of this final rule. The updated wage Finally, we recognize that most data are estimated to increase payments issued a Ruling entitled ‘‘Medicare hospices have not challenged the by 0.1 percent (column 3 of Table 1). Program; Hospice Appeals for Review of methodology used for determining the The additional 15 percent reduction in an Overpayment Determination’’ (CMS– number of beneficiaries used in the cap the BNAF, which has already been 1355–R), and also published in the calculation. Therefore, we proposed that applied to the wage index values shown Federal Register as CMS–1355–NR (76 those hospices which would like to in this final rule, is estimated to reduce FR 26731, May 9, 2011), related to the continue to have the existing payments by 0.6 percent. Therefore, the aggregate cap calculation for hospices methodology (hereafter called the changes in the wage data and the which provided for application of a streamlined methodology) used to additional 15 percent BNAF reduction patient-by-patient proportional determine the number of beneficiaries reduce estimated hospice payments by methodology, as defined in the Ruling, in a given cap year would not need to 0.5 percent, when compared to FY 2011 to hospices that have challenged the take any action, and would have their payments (column 4 of Table 1). current methodology. Specifically, the cap calculated using the streamlined However, so that hospices can fully Ruling provides that, for any hospice methodology for cap years ending on or understand the total estimated effects on which has a timely-filed administrative before October 31, 2011. The their revenue, we have also accounted appeal of the methodology set forth at streamlined methodology is defined in for the 3.0 percent final market basket § 418.309(b)(1) used to determine the section II.B.4 below. update for FY 2012. The net effect of number of Medicare beneficiaries used in the aggregate cap calculation for a cap 2. Cap Determinations for Cap Years that 3.0 percent increase and the 0.5 Ending on or After October 31, 2012 percent reduction due the updated wage year ending on or before October 31, data and the additional 15 percent 2011, the Medicare contractors will We continue to believe that the BNAF reduction, is an estimated recalculate that year’s cap determination methodology set forth in § 418.309(b)(1) increase in payments to hospices in FY using the patient-by-patient is consistent with the Medicare statute. 2012 of 2.5 percent (column 5 of Table proportional methodology as set forth in We emphasized that nothing in our 1). the Ruling. proposals in this section constitutes an We received two comments regarding In the proposed rule, we also made admission as to any issue of law or fact. the combined effect of the expected several proposals regarding cap In light of the court decisions, however, market basket update, BNAF reduction determinations from two time periods: we proposed to change the hospice and wage data updates. • Cap determinations for cap years aggregate cap calculation methodology Comment: Some commenters were ending on or before October 31, 2011; policy for cap determinations ending on confused about the language in the and or after October 31, 2012 (the 2012 cap proposed rule concerning the market • Cap determinations for cap years year). Specifically, for the cap year basket increase and the BNAF ending on or after October 31, 2012. ending October 31, 2012 (the 2012 cap

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47309

year) and subsequent cap years, we patient proportional methodology, but contractor may need to make proposed to revise the methodology set also proposed to allow hospices the adjustments to prior cap determinations, forth at § 418.309(b)(1) to adopt a option of having their cap calculated via subject to existing reopening patient-by-patient proportional the current streamlined methodology, as regulations. methodology when computing hospices’ discussed below. We stated in the 4. Streamlined Methodology aggregate caps. We also proposed to proposed rule that we believe this two- ‘‘grandfather’’ in the current streamlined pronged approach is responsive to the As we described above and in the methodology set forth in § 418.309(b)(1) commenters who do not want to be proposed rule, comments received from for those hospices that elect to continue burdened with a change in the cap hospices and the major hospice to have the current streamlined calculation methodology at this time, associations in previous years urged us methodology used to determine the while also conforming with decisional to defer across-the-board changes to the number of Medicare beneficiaries in a law and meeting the needs of hospices cap calculation methodology until we given cap year, for the following that would prefer the patient-by-patient reform hospice payments. Several of reasons. proportional methodology of counting these commenters feared that an across- As described in section II of the beneficiaries. This grandfathering the-board change in methodology now proposed rule, we solicited comments proposal to allow hospices the option of could disadvantage them by potentially on modernizing the cap calculation in having their caps calculated based on placing them at risk for incurring new our FY 2011 Hospice Wage Index Notice application of the current streamlined cap overpayments. Additionally, with Comment Period. We summarized methodology would apply only to approximately 90 percent of hospices do those comments in section II of that currently existing hospices that have, or not exceed the cap and have not proposed rule, and noted that many will have, had a cap determination objected to the current methodology, commenters, including the major calculated under the streamlined and commenters expressed concern that hospice associations, were concerned methodology. New hospices that have adapting to a process change would be about the burden to hospices of not had their cap determination costly and burdensome. In response to changing the cap calculation calculated using the streamlined these concerns, we proposed that a methodology, and urged us to defer methodology did not fall under the hospice could exercise a one-time across-the-board changes to the cap proposed ‘‘grandfather’’ policy. election to have its cap determination methodology until we analyzed the cap Therefore, all new hospices that are for cap years 2012 and beyond in the context of broader payment Medicare-certified after the effective calculated using the current, reform. Specifically, commenters urged date of this final rule would have their streamlined methodology set forth in us to retain the current methodology, as cap determinations calculated using the § 418.309(b). We proposed that the it resulted in a more streamlined and patient-by-patient proportional option to elect the continued use of the timely cap determination for providers, methodology. streamlined methodology for cap years as compared to other options. In 2012 and beyond would be available addition, commenters noted that once 3. Patient-by-Patient Proportional only to hospices that have had their cap made, cap determinations usually Methodology determinations calculated using the remain final. Commenters were For the cap year ending October 31, streamlined methodology for all cap concerned that a proportional 2012 (the 2012 cap year), and for all years prior to cap year 2012. In section methodology could result in prior year subsequent cap years (unless changed II.B.5 (‘‘Changing Methodologies’’) cap determination revisions to account by future rulemaking), we proposed that below, we described our detailed for situations in which the percentage of the Medicare contractors would apply rationale for limiting the election. time a beneficiary received services in a the patient-by-patient proportional Allowing hospices which, prior to cap prior cap year declined as his or her methodology (defined below) to a year 2012, have their cap overall hospice stay continued into hospice’s aggregate cap calculations determination(s) calculated pursuant to subsequent cap years, and these unless the hospice elected to have its a patient-by-patient proportional revisions could result in new cap determination for cap years 2012 methodology to elect the streamlined overpayments for some providers. and beyond calculated using the methodology for cap years 2012 and Commenters noted that the vast majority current, streamlined methodology set beyond could result in over-counting of providers don’t exceed the cap, so forth in § 418.309(b)(1). patients and introduce a program burdening these providers with an Under the proposed patient-by-patient vulnerability. across-the-board change would not be proportional methodology, for each Our current policy set forth in the justified. We also noted that on January hospice, CMS would include in its existing § 418.309(b)(2) states that when 18, 2011, President Obama issued an number of Medicare beneficiaries only a beneficiary receives care from more Executive Order (EO) entitled that fraction which represents the than one hospice during a cap year or ‘‘Improving Regulation and Regulatory portion of a patient’s total days of care years, each hospice includes in its Review’’ (EO 13563), which instructed in all hospices and all years that was number of Medicare beneficiaries only federal agencies to consider regulatory spent in that hospice in that cap year, that fraction which represents the approaches that reduced burdens and using the best data available at the time portion of a patient’s total stay in all maintained flexibility and freedom of of the calculation. We proposed that the hospices that was spent in that hospice. choice for the public. We believe that whole and fractional shares of Medicare We proposed to revise the regulatory offering hospices the option to elect to beneficiaries’ time in a given cap year text at § 418.309(b)(2) to clarify that for continue to have the streamlined would then be summed to compute the each hospice, CMS includes in its methodology used in calculating their total number of Medicare beneficiaries number of Medicare beneficiaries only caps is in keeping with this EO. served by that hospice in that cap year. that fraction which represents the For these reasons, for the cap year When a hospice’s cap is calculated portion of a patient’s total days of care ending October 31, 2012 (the 2012 cap using the patient-by-patient in all hospices and all years that was year) and subsequent cap years, we proportional methodology, and a spent in that hospice in that cap year, proposed that the hospice aggregate cap beneficiary included in that calculation using the best data available at the time be calculated using the patient-by- survives into another cap year, the of the calculation. We also proposed to

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47310 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

add language to make clear that cap proportional methodology. As such, received six comments related to these determinations are subject to reopening/ past cap year determinations could be proposed changes. adjustment to account for updated data. adjusted to prevent the over-counting of Comment: Most commenters were beneficiaries, notwithstanding the supportive of our providing hospices 5. Changing Methodologies ordinary limitations on reopening. with options regarding their cap We believe our proposed policies, calculation methodology; however, one described above, provide hospices with 6. Other Issues suggested that we abandon the patient- a reasonable amount of flexibility with Contractors will provide hospices by-patient proportional methodology regard to their cap calculation. with instructions regarding the cap due to the burden created by the need However, we believe that if we allowed determination methodology election for adjustments to prior year cap hospices to switch back and forth process. Regardless of which determinations. This commenter was between methodologies, it would greatly methodology is used, the contractor will also concerned about the potential for complicate the cap determination continue to demand any additional increased confusion and complexity. calculation, would be difficult to overpayment amounts due to CMS at Several commenters asked for details on administer, and might lead to the time of the hospice cap how to elect a particular calculation inappropriate switching by hospices determination. The contractor will methodology, with one commenter seeking merely to maximize Medicare continue to include the hospice cap asking that we incorporate consistent, payments. Additionally, in the year of a determination in a letter which serves as specific timeframes for making such an change in the calculation methodology, a notice of program reimbursement election. Another commenter suggested there is a potential for over-counting under 42 CFR 405.1803(a)(3). Cap we send providers a form to use in some beneficiaries. Allowing hospices determinations are subject to the making the choice. A number of to switch back and forth between existing CMS reopening regulations. commenters asked that CMS and its methodologies would perpetuate the In that FY 2011 Hospice Wage Index contractors educate providers about the risk of over-counting beneficiaries. Notice with Comment Period, we also election process and the cap calculation Therefore, we proposed that: discussed the timeframe used for methodology options. Several also asked (1) Those hospices that have their cap counting beneficiaries under the that all contractors use the same determination calculated using the streamlined methodology, which is methodology when calculating the cap. patient-by-patient proportional September 28th to September 27th. This A commenter asked that we align the methodology for any cap year prior to timeframe for counting beneficiaries cap year and the beneficiary counting the 2012 cap year would continue to was implemented because it allows year with the federal fiscal year, to have their cap calculated using the those beneficiaries who elected hospice simplify the cap calculation process. A patient-by-patient proportional near the end of the cap year to be few commenters asked that contractors methodology for the 2012 cap year and counted in the year when most of the mail cap determination letters in a more all subsequent cap years; and, services were provided. However, for timely and consistent fashion, with one (2) All other hospices would have those hospices whose cap asking that we specify timelines for their cap determinations for the 2012 determinations are calculated using a contractors to follow. One commenter cap year and all subsequent cap years patient-by-patient proportional suggested that timely notification of cap calculated using the patient-by-patient methodology for counting the number of determination letters be a performance proportional methodology unless they beneficiaries, we proposed to count measure for the contractors. Several make a one-time election to have their beneficiaries and their associated days commenters asked for longer, more cap determinations for cap year 2012 of care from November 1st through flexible repayment timeframes, and beyond calculated using the October 31st, to match that of the cap suggesting three to five years for streamlined methodology. year. This would ensure that the repayment of overpayments, or longer. (3) A hospice would be able to elect proportional share of each beneficiary’s One commenter wrote that the cap was the streamlined methodology no later days in that hospice during the cap year an outdated cost containment provision, than 60 days following the receipt of its is accurately computed. and was concerned that it would limit 2012 cap determination. Finally, we noted that the existing access. This commenter asked that we (4) Hospices which elected to have regulatory text at § 418.308(b)(1) refers increase the cap amount to reflect a full their cap determination calculated using to the timeframe for counting six months of care and wage adjust it. the streamlined methodology could later beneficiaries as ‘‘(1) * * * the period The commenter added that this would elect to have their cap determinations beginning on September 28 (35 days require study to determine the relevant calculated pursuant to the patient-by- before the beginning of the cap period) methodology that would support patient proportional methodology by and ending on September 27 (35 days providers in caring for all hospice either: before the end of the cap period).’’ The patients. a. Electing to change to the patient-by- period beginning September 28 is Response: We appreciate commenters’ patient proportional methodology; or actually 34 days before November 1 (the support of our proposal and of the b. Appealing a cap determination beginning of the cap year), rather than options provided to hospices regarding calculated using the streamlined 35 days. We proposed to correct this in their aggregate cap calculations. Having methodology to determine the number the regulatory text, and to change two cap calculation methodologies of Medicare beneficiaries. references to the ‘‘cap period’’ to that of addresses the concerns of commenters (5) If a hospice elected the the ‘‘cap year’’ to correctly reference the who did not want to be burdened with streamlined methodology, and changed time frame for cap determinations. We a change given future payment reform; to the patient-by-patient proportional also proposed technical corrections to those comments were described in methodology for a subsequent cap year, the regulatory text. section II of our proposed rule. Earlier the hospice’s aggregate cap The above summarizes the proposals in this section we also noted that there determination for that cap year (i.e., the made in our proposed rule. We are had been substantial litigation cap year of the change) and all finalizing all the policies above as challenging the way we apportion subsequent cap years would be proposed, except as described in the hospice patients with care spanning calculated using the patient-by-patient following responses to comments. We more than one year when calculating

VerDate Mar<15>2010 18:56 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47311

the aggregate cap. We believe it is in the the patient-by-patient proportional providers and to the contractors. There best interest of CMS and the Medicare methodology. will also be a MedLearn Matters article, program to take action to prevent future The timeframe for electing to continue discussion on Open Door forums, and cap litigation, and to alleviate the to have the aggregate cap calculated information on the hospice center litigation burden on providers, CMS, using the streamlined methodology is webpage (http://www.cms.gov/center/ and the courts. Therefore, we do not specified in the regulatory text at 42 hospice.asp) to further educate the believe that we should abandon the CFR 418.309(d)(2)(ii), and requires that industry. Additional education will patient-by-patient proportional the election be made no later than 60 come from industry associations and methodology. days after receipt of the 2012 cap from contractor Web sites, reminding Regarding the timeframes for determination. Therefore, the hospice hospices of the procedures for electing elections, our proposed rule addressed could elect for CMS to continue using a methodology. the issue based on two time periods: the streamlined methodology at any In case a provider misses these 1. For cap years ending on or before time between October 1, 2011 (the educational efforts, we will also ask October 31, 2011: effective date of this final rule) and up contractors to include language on the We proposed that hospices that have to 60 days after receipt of its 2012 cap 2012 cap determinations which explains not filed an appeal of an overpayment determination. This election to use the that the provider has up to 60 days from determination challenging the validity streamlined methodology would remain the date of receipt of the determination of 42 CFR 418.309(b)(1) and which are in effect unless the hospice to elect to continue using the waiting for us to make a cap subsequently submitted an election to streamlined methodology. Given these determination in a cap year ending on change to the patient-by-patient efforts, we do not believe it is necessary or before October 31, 2011 may, as of proportional methodology or appealed for us to create a form and send it to all October 1, 2011, elect to have their final the streamlined methodology used to providers for choosing to continue using cap determinations for such cap year(s), determine the number of Medicare the streamlined methodology. To and all subsequent cap years, calculated beneficiaries used in the aggregate cap address comments related to contractor using the patient-by-patient calculation. We allow this 60 days after consistency in applying the cap proportional methodology. In other receipt of the 2012 cap determination methodologies, we also believe that because we are concerned that a hospice clearly written manual instructions words, in this circumstance, the election that intended to continue using the which include examples will ensure must occur in the period beginning streamlined methodology might fail to consistent application of the cap October 1, 2011 (the effective date of elect it due to an oversight, and we do calculation procedures by all this final rule) but before receipt of the not want any provider to be forced to contractors. 2011 (or prior) cap year determination. change methodologies due to such an As we noted in the proposed rule, we We are finalizing this policy as error. We are finalizing this policy as agree with commenters on our 2010 proposed. proposed. Hospice Wage Index Notice with 2. For cap years ending on or after (b) Electing to change from the Comment who asked us not to change October 31, 2012: streamlined methodology to the patient- the cap year timeframe now, but to (a) Electing to continue using the by-patient proportional methodology: consider that change when we streamlined methodology: We proposed We proposed that if a hospice elected to undertake broader payment reform. In that for cap years ending on or after have its 2012 cap determination the proposed rule, we also stated that October 31, 2012, hospices would have calculated using the streamlined for purposes of applying the patient-by- their aggregate caps calculated using the methodology, it could later submit a patient proportional methodology, we patient-by-patient proportional written election to change to the patient- proposed to count beneficiaries and methodology, unless a hospice exercises by-patient proportional methodology. their associated days of care from a one-time election to have its aggregate This election to change methodologies November 1 to October 31, to match the cap for cap years 2012 and beyond from streamlined to patient-by-patient cap year timeframe. We are finalizing calculated using the streamlined proportional for a given cap year and all this policy as proposed. methodology. Those hospices that make subsequent cap years must be submitted Finally, several comments were such an election will have their cap before receipt of the cap determination outside the scope of this rule, including determinations for the 2012 cap year for that cap year. If the hospice has those related to requiring more timely and subsequent cap years calculated already received the cap determination and consistent mailing of cap using the streamlined methodology for that cap year, and then decides it determination letters, to extending unless they subsequently elect to have would like to change from the repayment timeframes, to increasing the the patient-by-patient proportional streamlined methodology to the patient- cap amount, and wage adjusting the cap methodology used, appeal the by-patient proportional methodology, it amount. We will consider these issues, streamlined methodology (please see must file an appeal of the methodology such as the wage adjustment of the cap section II.B.5, entitled ‘‘Changing used to determine the number of and changing the cap amount, as we Methodologies,’’ for more details), or we Medicare beneficiaries used in the continue with hospice payment reform, implement changes through future aggregate cap calculation. We are to the extent that we have such rulemaking. This option to elect to finalizing this policy as proposed. authority. In its March 2010 Report to continue with the streamlined Contractors will provide hospices Congress (http://www.medpac.gov/ methodology only applies to existing with instructions on how to elect a chapters/Mar10_Ch02E.pdf), MedPAC hospices that have had, or will have methodology in the coming months. In investigated claims that the cap was had, a cap determination calculated addition, we will revise the cap section creating an access problem for non- under the streamlined methodology. of the hospice claims processing manual cancer patients or for racial or ethnic Additionally, this option to elect to (Internet-only manual (IOM) 100–04, minorities. MedPAC found no evidence continue with the streamlined chapter 11, section 80) to reflect the to support these claims. methodology is not available to a policies implemented in this final rule. Comment: A majority of commenters hospice when its 2011 or prior cap We will include examples to make sure asked that we define the reopening time determination(s) was calculated using the details of the calculation are clear to period for making adjustments to prior

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47312 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

year cap determinations, citing a need agency cannot ‘‘appeal’’ a payment calculations that had not been verified for hospices to manage their finances determination for a provider reflecting by HHS. with some certainty and administrative that provider’s election of a cap It is true that a given hospice for a burden. Suggested reopening methodology within 180 days after the given year might benefit (perhaps timeframes ranged from 3 to 5 years. date of the relevant determination). significantly) from application of a One commenter asked that we provide Comment: One commenter, who is patient-by-patient proportional a manual reference for ‘‘existing counsel for a number of hospices that methodology (resulting in a higher cap reopening regulations.’’ Another have brought litigation challenging the and a lower cap liability), but that same commenter wrote that hospices should streamlined methodology, suggested hospice might have a higher cap be afforded parallel rights, at least on a that we advise hospices that ‘‘multiple liability (perhaps significantly) from one-time basis, to request reopening of spreadsheets offered in litigation by application of the patient-by-patient demands issued not more than 3 years hospices (and HHS) tend to show’’ that proportional methodology in a different ago for recalculation under the there are ‘‘material reductions in year. In fact, some evidence offered in proportional methodology. hospice cap liability under the litigation indicated that even some Response: Our regulations at 42 CFR proportional method.’’ The commenter plaintiff hospices were likely to have a 405.1803 equate the hospice cap stated that, based on their experience, greater cap liability using the patient-by- determination letter with a Notice of they strongly recommend that hospices patient proportional methodology in a Program Reimbursement (NPR). The opt for the proportional methodology given year. The effect on a particular regulations governing NPRs, which are and suggested that HHS should make hospice (in a given year or in the found at 42 CFR 405.1885, have a 3-year the same recommendation to hospices. aggregate over all years) depends on a timeframe for reopening, except in Response: We note the statements and number of factors (for example, the flow instances of fraud, where reopening is recommendations of the commenter for of patients in and out of the hospice, the unlimited. The regulations related to providers to consider, but we do not mix of patients’ lengths of stay). reopening are described in our Paper- believe it is appropriate for us to make Therefore, while a reduction in cap Based Manual 15–1, chapter 29, entitled a general recommendation to hospices liability for a hospice is certainly ‘‘Provider Payment Determination and as to which method hospices should possible, it is not a given. Hospices that Appeals’’, available on our Web site at choose. The commenter states that have brought litigation challenging the ‘‘multiple spreadsheets offered in http://www.cms.gov/Manuals/PBM/ streamlined method and offered litigation by hospices (and HHS) tend to list.asp. In response to concerns from spreadsheets are not necessarily show’’ that there are ‘‘material multiple commenters, we are revising representative of the majority of reductions in hospice cap liability our proposal to make it clear that there hospices and their experience would under the proportional method.’’ To the is a 3-year timeframe for reopening, as not be generalizable to all hospices. described in 42 CFR 405.1885. We are extent the commenter suggests that, as In any event, we do not believe it is also revising the regulatory text we a general matter, hospices are generally appropriate for us to make a general proposed at 42 CFR 418.309(d)(3) to likely to receive material reductions in recommendation to hospices regarding remove the language that reads hospice cap liability under the which method hospices should choose. ‘‘notwithstanding the ordinary proportional method (relative to the Nevertheless, we note the commenter’s limitations on reopening’’ and replacing streamlined method), we do not draw statements and recommendations for it with ‘‘subject to existing reopening the same conclusions as the commenter requirements.’’ These changes should from the spreadsheets offered in providers to consider. satisfy commenters’ concerns, and litigation by some plaintiff hospices. We Comment: A commenter was provide hospices with more certainty in acknowledge that a number of concerned that the proposed regulatory managing their finances. spreadsheets offered in litigation text at 42 CFR 418.309(b) needed to be We do not believe that allowing us to indicate that certain plaintiff hospices clarified. The commenter asked that we reopen prior year cap determinations in would likely experience a reduction clarify the differences in the streamlined light of a provider’s decision to switch (perhaps significant) in cap liability for methodology calculation when a methodologies and allowing providers a given year. At the same time, we beneficiary has been in only 1 hospice to request reopening of prior year cap believe that it is important to consider versus when a beneficiary has received determinations that were not timely that numerous plaintiff hospices did not care from more than one hospice. The appealed are parallel situations. If a offer any spreadsheets in litigation commenter also asked that we clarify 42 hospice elects one methodology for indicating whether those plaintiff CFR 418.309(b)(2), which deals with determining the cap and then hospices would receive a significant applying the streamlined methodology subsequently elects a different reduction or any reduction in cap when a beneficiary receives care from methodology, we believe that it might liability in a given year. Plaintiff more than one hospice. The commenter be appropriate to recalculate earlier hospices that did offer spreadsheets in wasn’t clear whether the calculation of payment/cap determinations (after the litigation might be more likely to benefit the fraction of the total days of care change in methodologies) in order to from application of a patient-by-patient applies to all years of hospice care, or prevent providers from switching proportional methodology in a given just to the year of initial election. methodologies to gain an inappropriate year than other plaintiff hospices that Response: The streamlined benefit. This consideration does not did not offer such spreadsheets. methodology requires that beneficiaries apply in the situation where a provider Moreover, hospices that have brought who have only been in one hospice be did not timely appeal an earlier litigation challenging the streamlined counted as 1 in their initial year of determination. Providers may appeal method might be more likely than other election, with the timeframe for payment determinations, and we believe hospices to benefit from application of counting beneficiaries running from that, if a provider did not exercise its a patient-by-patient proportional September 28 to September 27. The appeal rights in a timely manner, then methodology. We also note that beneficiary is not included in the count subsequent developments do not spreadsheets offered by plaintiff of beneficiaries ever again, even if he/ warrant effectively extending the time hospices in litigation might have she survives past September 27th into period for appeal (unlike providers, the reflected incomplete data or reflected another beneficiary counting year. This

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47313

calculation has not changed since the methodology is only evident when a and hospice B comes under hospice A’s hospice benefit’s inception. beneficiary receives hospice care from a Medicare provider agreement and Under the streamlined methodology, single hospice. We are finalizing the unique provider number. Hospice B is when a beneficiary has been served by regulatory text at 42 CFR 418.309(b) as consolidated into hospice A. In this case more than 1 hospice, the current proposed. the beneficiaries who were in hospice B regulation at 42 CFR 418.309(b)(2) says Comment: Several commenters are now in hospice A. From the that ‘‘In the case in which a beneficiary suggested that we allow calculation of a standpoint of the cap, those has elected to receive care from more total cap across all provider numbers beneficiaries are considered to have than one hospice, each hospice includes belonging to a common owner. One been served by more than one hospice. in its number of Medicare beneficiaries commenter suggested that in the As noted previously in this section, the only that fraction which represents the situation where one hospice acquires streamlined and patient-by-patient portion of a patient’s total stay in all another hospice, hospices operating proportional methodologies are hospices that was spent in that under the proportional methodology identical when a beneficiary is served hospice.’’ The streamlined methodology should have the option of switching to by more than one hospice, following the used when a beneficiary has been the streamlined methodology for patient-by-patient proportional served by more than one hospice is consistency. methodology. Therefore hospice A’s use actually a patient-by-patient Response: There are several issues we of the streamlined methodology does proportional allocation of the must address to fully respond to this not create any inconsistency when beneficiary’s time. comment: (1) Whether the aggregate cap accounting for hospice B’s beneficiaries In our proposed rule, we proposed calculation can be consolidated for all in its aggregate cap. changes to the regulatory text describing providers of a common owner, such as In another example, if hospice A how the streamlined methodology for hospices that are part of a chain; (2) acquires hospice B with rejection of accounts for beneficiaries who are which calculation methodology to allow assignment of provider agreements, but served by more than one hospice. We when there is a change of ownership wants to operate hospice B as a separate are finalizing those proposed changes to with assignment of provider agreements; entity, hospice B’s existing Medicare the regulatory text, as it makes it clear and (3) which calculation methodology provider agreement and unique provider that the calculation is to occur across all to allow when there is an acquisition number would be terminated. Hospice B years of hospice care, and not just the with rejection of assignment of provider would have to meet all requirements to initial year of election. It also matches agreements. All three issues hinge on be certified to participate in the the language describing the patient-by- the Medicare provider agreement for Medicare program, and would be given patient proportional methodology, and each participating hospice and its a new provider agreement and unique ‘‘requires each hospice include in its unique provider number. The unique provider number upon approval. count of Medicare beneficiaries only provider number is the administrative Therefore, hospice A and B continue to that fraction which represents the method used by Medicare to track each have separate unique provider numbers. portion of a patient’s total days of care Medicare provider agreement. A unique As such, separate cap calculations are in all hospices and all years that was provider number is assigned to a performed for hospice A and hospice B, spent in that hospice in that cap year, hospice program which is certified as since our longstanding policy is to using the best data available at the time meeting the conditions to participate in calculate the cap by provider (defined as of the calculation.’’ When a beneficiary the Medicare program defined in section having a unique provider number), is served by more than one hospice, the 1861(dd) of the Act. rather than by owner or by chain. calculation is a proportional one, even To address the first issue, Because hospice B has a new under the streamlined methodology. longstanding policy has not permitted Medicare provider agreement (with a Because the regulation refers to consolidation of separate Medicare new unique provider number), it is counting days spent in a given hospice certified hospice providers with a considered a new provider for purposes ‘‘in that cap year’’, it also follows the common owner when computing the of applying the aggregate cap. As such, same beneficiary counting timeframe aggregate cap; instead, a separate cap all its cap calculations would be made that the patient-by-patient proportional calculation occurs for each Medicare using the patient-by-patient methodology uses, which is the cap year certified hospice program defined by its proportional methodology; new timeframe (November 1 to October 31). unique provider number. Our providers are not eligible for the In our proposed rule we explained that regulations at 42 CFR 418.308 and 42 grandfathering described in the the September timeframe for counting CFR 418.309 describe the aggregate cap proposed rule, which allows hospices to beneficiaries was implemented in 1983 calculation in terms of an individual elect to continue using the streamlined because it allows those beneficiaries hospice, rather than in terms of a methodology. who elected hospice near the end of the hospice chain or a common owner. We continue to believe that there cap year to be counted in the year when To address the second issue, when would be a program vulnerability if we most of the services were expected to be one hospice acquires another, one needs allowed providers to switch back and provided. However, for a patient-by- to consider the unique provider number forth between cap calculation patient proportional calculation, there is of the hospice(s) which provided care to methodologies. As such, we proposed no need to make such an adjustment, each patient. For example, hospice A, that a provider whose cap is calculated and therefore we are using the cap year which has opted for CMS to use the using the proportional methodology timeframe when counting beneficiaries. streamlined methodology in its cap may not later decide to have its cap In other words, the streamlined calculation, acquires hospice B, which calculated using the streamlined methodology is identical to the patient- has its cap calculated using the patient- methodology. We proposed an by-patient proportional methodology by-patient proportional methodology. exception to this policy for the 2012 cap when counting beneficiaries who have When a change of ownership occurs year, when all aggregate caps will be been served by more than one hospice. with assignment of provider agreements, computed using the proportional As such, the difference between the and the acquiring hospice chooses to methodology, unless an eligible streamlined methodology and the consolidate the operations, the unique provider makes a one-time election to patient-by-patient proportional provider number of hospice B is retired, continue using the streamlined

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47314 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

methodology. The exception allows • The encounter must occur no more flexibility in areas of physician eligible providers that intended to than 30 calendar days prior to the start shortages. continue using the streamlined of the third benefit period and no more We received 15 comments related to methodology but which failed to elect than 30 calendar days prior to every these proposed changes. the streamlined methodology to make subsequent benefit period thereafter. Comment: Commenters expressed that one-time election during the 60-day • The hospice physician or NP who appreciation of CMS’ efforts to address period following receipt of the 2012 cap performs the encounter attests in concerns regarding implementation of determination notice. writing that he or she had a face-to-face the face-to-face encounter for hospice The above examples regarding encounter with the patient and includes eligibility certification and changes in ownership are consistent the date of the encounter. The recertification, including the three- with our policy of defining hospices by attestation, which includes the month enforcement delay provided for their unique provider numbers and physician’s signature and the date of the in early 2011. consistent with our proposal to preclude signature, must be a separate and All 15 commenters supported the switching calculation methodologies. distinct section of, or an addendum to, proposal to allow any hospice physician In summary, we are finalizing the the recertification form, and must be to perform the face-to-face encounter proposals related to the aggregate cap as clearly titled. regardless of whether the physician recertifies the patient’s terminal illness proposed, except to clarify that the • The physician narrative associated and composes the recertification timeframe for reopening cap with recertifications for the third and narrative. While commenters supported determinations is 3 years (except in the subsequent benefit period the less restrictive policy, they made case of fraud). recertifications includes an explanation suggestions to add additional of why the clinical findings of the face- C. Hospice Face-to-Face Requirement practitioners such as Physician to-face encounter support a prognosis Section 3132(b) of the Affordable Care Assistants (PA) and Clinical Nurse that the patient has a life expectancy of Act of 2010 (Pub. L. 111–148, enacted Specialists (CNS) to the list of 6 months or less. March 23, 2010) amended section • healthcare professionals that would be 1814(a)(7) of the Act by adding an When an NP performs the allowed to conduct the face-to-face additional certification requirement that encounter, the NP’s attestation must encounter. These commenters described beginning January 1, 2011, a hospice state that the clinical findings of that the shortage of nurse practitioners and physician or nurse practitioner (NP) visit were provided to the certifying physicians in some areas of the country, must have a face-to-face encounter with physician, for use in determining especially small and rural areas. every hospice patient prior to the 180- whether the patient continues to have a Another commenter, also citing day recertification of the patient’s life expectancy of 6 months or less, physician and NP shortages in rural terminal illness to determine continued should the illness run its normal course. • areas, suggested that community eligibility. The statute also requires that The hospice physician or the physicians and nurse practitioners the hospice physician or NP who hospice NP can perform the encounter. should be able to conduct the face-to- performs the encounter attest that such We define a hospice physician as a face encounter and report their findings a visit took place in accordance with physician who is employed by the to a physician employed by the hospice. procedures established by the Secretary. hospice or working under contract with Another commenter strongly Although the provision allows an NP to the hospice, and a hospice NP as an NP encouraged CMS to allow any physician perform the face-to-face encounter and who is employed by the hospice. to certify and recertify a patient for attest to it, section 1814(a)(7)(A) of the • The hospice physician who hospice. The commenter described the Act continues to require that a hospice performs the face-to-face encounter and situation when caring for the physician must certify and recertify the attests to it must be the same physician imminently dying patient at an terminal illness. who certifies the patient’s terminal emergency department; a non-hospice We implemented section 1814(a)(7), illness and composes the recertification physician cannot certify the patient for as amended by section 3132(b) of the narrative (75 FR 70445). hospice services without a hospice Affordable Care Act in the November As a result of stakeholders’ concerns physician certification. The commenter 17, 2010 final rule (75 FR 70372), regarding access risks resulting from the indicated that the patient should not published in the Federal Register, final rule policy, we proposed that any have to wait for the hospice physician entitled ‘‘Home Health Prospective hospice physician can perform the face- to certify the patient in a situation when Payment System Rate Update for CY to-face encounter regardless of whether the patient is imminently dying. The 2011; Changes in Certification that physician recertifies the patient’s commenter supported efforts in Requirements for Home Health Agencies terminal illness and composes the Congress to change the statute about this and Hospices’’, hereinafter referred to as recertification narrative. Additionally, change. the CY 2011 HH PPS Final Rule. The we also proposed to change the Commenters were concerned that statute requires that for hospice regulatory text at 42 CFR 418.22(b)(4) to hospices are facing a large increase in recertifications occurring on or after state that the attestation of the nurse administrative costs to provide care to January 1, 2011, a face-to-face encounter practitioner or a non-certifying hospice hospice patients without getting take place before the 180th-day physician shall state that the clinical additional reimbursement as a result of recertification. We decided that the findings of that encounter were the new face-to-face requirement. 180th-day recertification and provided to the certifying physician, for Commenters indicated that subsequent benefit periods use in determining continued eligibility unreimbursed face-to-face visits are corresponded to the recertification for a for hospice. This proposal reflects the costly in terms of time, travel and patient’s third or subsequent benefit our commitment to the general salaries, and the visits cause patients period. principles of the President’s EO released and families to be anxious that the These provisions at § 418.22(a) and January 18, 2011 entitled ‘‘Improving patient may be discharged. (b), as set out in the CY 2011 HH PPS Regulation and Regulatory Review’’, as Response: We thank the commenters final rule (75 FR 70463) include the it would reduce burden to hospices and for their support of our clarification in following requirements: hospice physicians and increase allowing any hospice physician to

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47315

perform face-to-face encounters disease management.’’ A commenter response cited the LCDs of several regardless of whether that same noted that many patients are contractors (see 75 FR 70447–70448). physician recertifies the patient’s legitimately certified at admission but The response also included common terminal illness and composes the their condition actually improves with text from those LCDs related to clinical recertification narrative and of the three- hospice care. The commenter also findings to use in making the month delay provided early in 2011. We suggested that Medicare benefit be assessment and determining whether a are finalizing the policy to allow any modified in ways that will encourage patient was terminally ill. We stated hospice physician to perform the face- more comprehensive, continuing care that the clinical findings should include to-face encounter regardless of whether management for those in the advanced evidence from the three following that same physician recertifies the stages of incurable illnesses. categories: (1) Decline in clinical status patient’s terminal illness and composes Response: We appreciate the guidelines (for example, decline in the recertification narrative. comment; however, it is outside the systolic blood pressure to below 90 or The statutory language in section scope of this rule. We may consider progressive postural hypotension); (2) 1814(a)(7) of the Act limits the such suggestions in the future in the Non disease-specific base guidelines disciplines of those who can provide a context of broader analysis surrounding (that is, decline in functional status) as hospice face-to-face encounter. PAs and palliative care. demonstrated by Karnofsky Performance CNSs are not authorized by the Comment: A commenter supported Status or Palliative Performance Score Affordable Care Act to perform the face- the change in regulatory text that states and dependence in two or more to-face visit. Therefore, without a an NP or a non-certifying hospice activities of daily living; and (3) Co- change in the law, we cannot adopt a physician may convey their clinical morbidities. We noted that because the policy to allow PAs and CNSs to findings from the face-to-face visit to the language was not mandatory, there was perform the face-to-face encounter. In certifying physician. never any intention that this response addition, a statutory change to section Response: We thank the commenter have a legally binding effect on 1814(a)(7) of the Act would also be for his or her support. hospices. These are suggestions as to required to change the requirements Comment: A commenter requested elements considered during certification regarding the physicians who must that we make every effort to ensure that or recertification which could be certify and recertify a patient’s terminal the clarification provided in the deemed to be indicative of a terminal illness. proposed rule about the face-to-face condition. However, this was not meant Similarly, allowing community requirement is applied as if to be an exhaustive or exclusive list. physicians and NPs to conduct the face- incorporated in the final rule issued Because there has been some confusion to-face encounter and report their November 17, 2010. about the extent to which these items findings to a physician employed by the Response: Thank you for your exclude other possible scenarios, we hospice would also require a statutory comment. We note that the effective proposed to clarify that the clinical change. The Act requires that the date of the provisions in this final rule findings included in the comment physician or NP conducting the face-to- is October 1, 2011. We direct providers response were provided as an example face encounter must be a hospice to the Hospice Benefit Policy Manual of findings that can be used in physician or NP. A ‘‘hospice physician’’ (IOM 100–02, chapter 9), section 20.1 determining continued medical is a physician either employed by or for up-to-date and comprehensive eligibility for hospice care. The working under arrangement with a guidance on our face-to-face encounter illustrative clinical findings mentioned hospice (i.e., contracted). The complete policy. In summary, we are finalizing above are not mandatory national definition of a hospice employee at 42 the proposed policy to allow any policy. In this final rule we are CFR 418.3 is as follows: ‘‘Employee hospice physician to perform the face- clarifying that the clinical findings means a person who: (1) Works for the to-face encounter regardless of whether included in the comment response hospice and for whom the hospice is that same physician recertifies the required to issue a W–2 form on his or discussed above were provided as an patient’s terminal illness and composes example, and are not national policy. her behalf; (2) if the hospice is a the recertification narrative. subdivision of an agency or We reiterate that certification or organization, an employee of the agency D. Technical Proposals and recertification is based upon a or organization who is assigned to the Clarification physician’s clinical judgment, and is not hospice; or (3) is a volunteer under the an exact science. Congress made this 1. Hospice Local Coverage jurisdiction of the hospice.’’ clear in section 322 of the Benefits Determinations We appreciate the commenters Improvement and Protection Act of concerns about the financial effects of In section II.H of the November 17, 2000, which says that the hospice the face-to-face requirements. We expect 2010 CY 2011 HH PPS Final Rule, we certification of terminal illness ‘‘shall be most face-to-face encounters would be implemented new requirements for a based on the physician’s or medical satisfied in conjunction with a hospice face-to-face encounter which director’s clinical judgment regarding medically reasonable and necessary were mandated by the Affordable Care the normal course of the individual’s physician service. Hospices can bill for Act of 2010. A commenter asked how illness.’’ We received four comments that portion of the visit where medically the face-to-face encounter related to about this clarification. reasonable and necessary physician Local Coverage Determinations (LCDs), Comment: Commenters appreciated services were provided to the patient by and if the expectation was that the the clarification and our reiterating the hospice physician or hospice physician would verify the patient’s existing policy that the certification and attending NP in conjunction with a face- condition based on the LCDs. Other recertification are based upon the to-face encounter. We will continue to commenters asked for guidance clinical judgment of the physician. One monitor for any unintended regarding what the encounter should commenter wrote that their hospice consequences associated with this include (that is, elements that make up physician occasionally discharges a provision. an encounter) for purposes of satisfying patient who is not longer eligible for the Comment: A commenter asked us to the requirement. When describing how benefit, and asked how the hospice consider the concept of ‘‘advanced to assess patients for recertification, our should handle a situation in which the

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47316 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

Quality Improvement Organization employed by an agency or organization 3. Timeframe for Face-to-Face (QIO) later overrules the physician. that has a hospice subdivision and who Encounters Response: We appreciate the were assigned to that hospice. In the In section II.H of the November 17, commenters’ support for our proposed rule, we clarified that entire 2010 CY 2011 HH PPS Final Rule, we clarification and for the existing policy definition of employee given at 42 CFR also implemented policies related to the that certification and recertification are 418.3 (shown above) applies. In this timeframe for performing a hospice face- based upon the clinical judgment of the final rule, we continue to clarify that the to-face encounter. We cited the statutory physician. We again note the response entire definition of employee given at 42 language from section 3132 of the we gave to the same question in the CY CFR 418.3 applies. Therefore, if the Affordable Care Act, which says that on 2011 HH PPS final rule. We wrote ‘‘If a hospice is a subdivision of an agency or and after January 1, 2011, a hospice patient appeals a pending discharge to organization, an employee of the agency physician or nurse practitioner must the QIO, the QIO decision is binding; a or organization who is assigned to the have a face-to-face encounter with the hospice could not discharge a patient as hospice is a hospice employee. We beneficiary to determine continued ineligible if the QIO deems that patient received seven comments on this eligibility of the beneficiary for hospice to be eligible. The provider is required section. care prior to the 180th-day to continue to provide services for the Comment: Several commenters wrote recertification and each subsequent patient. In the QIO response, the QIO that they appreciated our clarifying that recertification (see 75 FR 70435). We should advise the provider as to why it the entire definition of employee given also defined the 180th-day disagrees with the hospice, which in the existing regulation at 42 CFR recertification to be the recertification should help the provider to re-evaluate 418.3 applies when considering who is which occurs at the 3rd benefit period the discharge decision. If at another a hospice employee. Two commenters (see 75 FR 70436–70437). We point in time the hospice feels that the sought further clarification. One asked if implemented a requirement that the patient is no longer hospice eligible, the a hospice that issues W–2s for its direct face-to-face encounter occur no more provider should give timely notice to employees is also part of a commonly than 30 calendar days prior to the 3rd the patient of its decision to discharge. controlled health system, could it use or later benefit periods, to allow The patient could again appeal to the NPs employed by that health system hospices flexibility in scheduling the QIO, and the hospice and patient would and assigned to the hospice to perform encounter (see 75 FR 70437–70439). We await a new determination from the QIO face-to-face encounters. Another asked emphasized throughout the final rule based on the situation at that time’’ (75 that we clarify further what it means to FR 70448). be ‘‘assigned to a hospice.’’ A third that the encounter must occur ‘‘prior to’’ commenter felt that the clarification the 3rd benefit period recertification, 2. Definition of Hospice Employee gives a competitive advantage to and each subsequent recertification. The As noted above, in section II.H of the hospices that are part of a larger system, regulatory text associated with these November 17, 2010 CY 2011 HH PPS and noted the shortage of NPs. This changes is found at 42 CFR 418.22(a)(4), Final Rule, we implemented new commenter added that in rural areas, and reads, ‘‘As of January 1, 2011, a requirements for a hospice face-to-face NPs are often working under contracts hospice physician or hospice nurse encounter, which were mandated by the with exclusivity rights, which do not practitioner must have a face-to-face Affordable Care Act. As part of that permit them to work for others. encounter with each hospice patient, implementation, we required that a Response: We thank commenters for whose total stay across all hospices is hospice physician or nurse practitioner their support of our clarification. An NP anticipated to reach the 3rd benefit must perform the face-to-face employed by a health care system and period, no more than 30 calendar days encounters. Several commenters asked assigned to the hospice would be prior to the 3rd benefit period us to clarify who is considered a considered a direct employee and could recertification, and must have a face-to- ‘‘hospice physician or nurse perform face-to-face encounters. face encounter with that patient no practitioner’’ (see 75 FR 70443–70445). ‘‘Assigned to the hospice’’ means that more than 30 calendar days prior to We stated that a hospice physician or the health care system has allotted a every recertification thereafter, to gather nurse practitioner must be employed by position for a specific employee to work clinical findings to determine continued the hospice, and that hospice physicians at that specific hospice. This would be eligibility for hospice care.’’ We believe could also be working under the employee’s regular place of our final policy states clearly that the arrangement with the hospice (i.e., employment. An NP can be assigned to face-to-face encounter must occur prior contracted). We added that section 42 more than one hospice, in which case to, but no more than 30 calendar days CFR 418.3 defines a hospice employee the NP would have more than one prior to, the 3rd benefit period as someone who is receiving a W–2 regular place of employment. recertification and each subsequent form from the hospice or who is a Our clarification did not change or recertification. However, we are volunteer. The complete definition of a add to existing policy regarding the concerned that our regulation text could hospice employee at 42 CFR § 418.3 is definition of an employee, but simply lead a hospice to believe that the face- as follows: ‘‘Employee means a person noted the complete definition of to-face encounter could occur in an who: (1) Works for the hospice and for employee given at 42 CFR 418.3. open-ended fashion after the start of a whom the hospice is required to issue Hospices face different operational benefit period in which it is required, a W–2 form on his or her behalf; (2) if challenges depending on the specific and that the limitation on the time- the hospice is a subdivision of an business model their operators have frame was only on how far in advance agency or organization, an employee of chosen. We appreciate the difficulties of the start of the benefit period that the the agency or organization who is created by a shortage of NPs in some encounter could occur. Our policy, as assigned to the hospice; or (3) is a areas; however, we do not have the stated in the final rule, is that a face-to- volunteer under the jurisdiction of the authority to regulate the contractual face encounter is required prior to the hospice.’’ We received a number of provisions of an employer and an 3rd benefit period recertification and questions from the industry about the employee, and such contractual each recertification thereafter (75 FR definition of an employee and whether relationships are, therefore, not within 70454). Therefore, we proposed to it included personnel who were the scope of this rule. revise the regulation text to more clearly

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47317

state that the encounter is required which a transfer occurs immediately signed; therefore, this commenter urged ‘‘prior to’’ the 3rd benefit period prior to a three-day weekend. Moreover, us to permit this two-day extended recertification, and each subsequent commenters requested that we include period for the face-to-face encounter for recertification. As such, we proposed to additional circumstances under which all 3rd and later benefit periods, not just change the regulatory text to read ‘‘(4) the grace period may be allowed, such new admissions. Face-to-face encounter. As of January 1, as for providers in rural and large A commenter suggested that we ‘‘hold 2011, a hospice physician or hospice service areas and those in medically nurse practitioner must have a face-to- underserved areas. In addition, a harmless’’ those who miscalculate the face encounter with each hospice commenter indicated that contractors correct date for the recertification when patient whose total stay across all should be instructed to use reasonable they demonstrate compliance in terms hospices is anticipated to reach the 3rd discretion when implementing of submitting information. benefit period. The face-to-face application of ‘‘exceptional Response: We thank the commenters encounter must occur prior to but no circumstances.’’ for their support of the clarification of more than 30 calendar days prior to the A commenter suggested a statutory the regulation text regarding the timing 3rd benefit period recertification, and change to require that the face-to-face of the face-to-face encounter. Based on every benefit period recertification encounter occur every six months the comments we received, we are thereafter, to gather clinical findings to instead of every new benefit period. A finalizing the policy as clarified in the determine continued eligibility for commenter stated that we should not proposed rule. hospice care.’’ Based on the comments require a hospice to discharge and received, we are implementing this readmit the patient if a face-to-face The remaining comments described in change as proposed. We received 10 encounter does not occur prior to the the comment summary are beyond the comments related to these proposed 3rd benefit period recertification as it scope of the clarification which we changes. imposes a needless complication on the proposed, including the comment that Comment: Commenters supported process, and it is an unnecessary burden suggested that we ‘‘hold harmless’’ clarification regarding the timing of the on the patient and family for a mistake those who miscalculate the correct date face-to-face encounter; however, they made by the hospice. The same for the recertification when they asked for more flexibility in the commenter suggested other alternatives demonstrate compliance in terms of timeframe that CMS mandated. A few to penalize the hospice for its mistake submitting information. However, we commenters urged CMS to consider without causing any problems to the will briefly address some of them to alternatives to discharging and patient. The commenter indicated that ensure that the policy is clear. We readmitting patients when a face-to-face prior to the face-to-face requirement, appreciate commenters support encounter is not timely. hospices could use occurrence code 77 regarding the manual instructions. We Commenters appreciated our effort to to represent the non-billable days if note that the flexibility adopted in the incorporate ‘‘exceptional certification criteria were not manual instructions applies only to new circumstances’’ as part of the manual documented in a timely fashion. The admissions which occur at the 3rd or instructions governing the hospice face- commenter asked to allow the use of the later benefit period. We allow this to-face requirement. While commenters billing code subsequent to flexibility because we are convinced found these instructions helpful, they implementation of the face-to-face that in cases where a hospice newly urged that we expand the current two- requirement. The commenter also admits a patient who is in the third or day grace period to seven days for all suggested that hospices should not be new 3rd benefit period and later able to submit claims until the later benefit period, a face-to-face readmissions and include transfer certification is complete. encounter prior to the start of the benefit patients. Commenters believed that The same commenter stated that the period may not be possible. The manual allowance of only two days is not main goal of the face-to-face encounter provides some examples, but these sufficient and may still result in delayed requirement was to increase hospice examples are not intended to be all- delivery of needed services. A accountability; this commenter felt that inclusive. We believe that any commenter also said that allowing seven a financial consequence to the hospice additional flexibility would require a days will avoid delays in admissions for an untimely face-to-face encounter is statutory change. without creating staffing burdens where a logical and justified way to meet this We also note that if the face-to-face there is a shortage in MD/NPs. goal. The commenter stated that in stark encounter requirements are not met, the Commenters indicated that hospice contrast, there is no justifiable purpose beneficiary is no longer certified as physicians may have unavoidable for an overly strict implementation terminally ill, and consequently is not circumstances such as becoming ill, requirement when actively dying eligible for the Medicare hospice taking vacations, and resigning patients need to go through a formal benefit. Therefore, the hospice must suddenly, which the commenter discharge process and re-complete discharge the patient from the Medicare indicated could potentially leave the admission paperwork and assessments hospice benefit because he or she is not hospice in the unforeseeable position of because of a technical error made by having to discharge a patient because hospice. A commenter suggested that considered terminally ill for Medicare the face-to-face encounter was not we act to prevent a negative impact on purposes. The hospice can re-admit the completed prior to the start of the hospice patients and families by patient to the Medicare hospice benefit benefit period. A commenter believed a recognizing that human error can occur. once the required encounter occurs, seven-day window would allow for In addition, the commenter suggested provided the patient signs a new emergency patient admissions and that we limit consequences such that election form and all other new election address potential staffing issues. they impact the hospice alone, rather criteria are met. If they choose to do so, Another commenter recommended than patients and their families. hospices can provide care to these that we allow the encounter to occur up A commenter indicated that the patients in the interim at the hospice’s to five days after the start of the 3rd or existing regulations allow two days after own expense until eligibility is re- later benefit period in exceptional the beginning of the certification period established, but that care must occur circumstances, such as in a situation in to get a Certification of Terminal Illness outside of the Medicare hospice benefit.

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47318 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

4. Hospice Aide and Homemaker Quality Reporting (Hospital IQR) have been endorsed or adopted by a Services Program. In addition, CMS has consensus-based organization identified The hospice Conditions of implemented quality reporting programs by the Secretary. Under section Participation (CoPs) were updated in for hospital outpatient services, the 1814(i)(5)(D)(iii) of the Act, the 2008, after being finalized on June 5, Hospital Outpatient Quality Reporting Secretary must not later than October 1, 2008 in the Hospice Conditions of Program (OQR), and for physicians and 2012 publish selected measures that Participation Final Rule (73 FR 32088). other eligible professionals, the will be applicable with respect to FY Those revised CoPs included changing Physician Quality Reporting System 2014. the term ‘‘home health aide’’ to (PQRS). CMS has also implemented Section 1814(i)(5)(E) of the Act ‘‘hospice aide’’. In our FY 2010 Hospice quality reporting programs for home requires the Secretary to establish Wage Index Final Rule (74 FR 39384), health agencies and skilled nursing procedures for making data submitted we updated language in several areas of facilities that are based on conditions of under the hospice quality reporting our regulatory text to use this new participation, and an end stage renal program available to the public. The terminology, including at 42 CFR disease quality improvement program Secretary must ensure that a hospice has 418.202(g). The regulatory text at 42 that links payment to performance the opportunity to review the data that CFR 418.202(g) describes hospice aide based on requirements in section 153(c) are to be made public with respect to and homemaker services. The last of the Medicare Improvement for the hospice program prior to such data sentence of the regulatory text that was Patients and Providers Act of 2008. being made public. The Secretary must Section 3004 of the Affordable Care finalized is about homemaker services; report quality measures that relate to Act amends the Act to authorize however the word ‘‘homemaker’’ was hospice care provided by hospices on additional quality reporting programs, inadvertently replaced with ‘‘aide.’’ The the CMS Internet Web site. including one for hospices. Section revised regulatory text also 1814(i)(5)(A)(i) of the Act requires that 2. Quality Measures for Hospice Quality inadvertently deleted the sentence beginning with FY 2014 and each Reporting Program for Payment Year FY which read ‘‘Aide services must be subsequent FY, the Secretary shall 2014 provided under the supervision of a reduce the market basket update by two registered nurse.’’ Finally, the title of a. Considerations in the Selection of the percentage points for any hospice that Proposed Quality Measures this section of the regulatory text does not comply with the quality data continues to refer to 42 CFR 418.94 of submission requirements with respect to In implementing these quality the CoPs. However, 42 CFR 418.94 no that fiscal year. Depending on the reporting programs, we envision the longer exists, and it was updated in the amount of annual update for a particular comprehensive availability and 2008 Hospice CoP Final Rule to 42 CFR year, a reduction of two percentage widespread use of health care quality 418.76. We propose to correct the points may result in the annual market information for informed decision regulatory text at 42 CFR 418.202(g) to basket update being less than 0.0 making and quality improvement. We update the CoP reference to show 42 percent for a FY and may result in seek to collect data in a manner that CFR § 418.76, to add back the sentence payment rates that are less than balances the need for information about supervision which was deleted, payment rates for the preceding FY. Any related to the full spectrum of quality and to correct the last sentence to refer reduction based on failure to comply performance and the need to minimize to ‘‘homemakers’’ rather than ‘‘aides.’’ with the reporting requirements, as the burden of data collection and We received one comment on this required by section 1814(i)(5)(B) of the reporting. Our purpose is to help section, and are implementing this Act, would apply only with respect to achieve better health care and improve change as proposed. the particular fiscal year involved. Any health through the widespread Comment: A commenter wrote in such reduction will not be cumulative dissemination and use of performance support of this change. and will not be taken into account in information. We seek to efficiently Response: We appreciate the computing the payment amount for collect data using valid, reliable and commenter’s support. subsequent FYs. relevant measures of quality and to Comment: A commenter had concerns Section 1814(i)(5)(C) of the Act share the information with that hospice patients could not fully requires that each hospice submit data organizations that use such performance access occupational therapy services. to the Secretary on quality measures information as well as with the public. The commenter asked us to provide specified by the Secretary. Such data We also seek to align new Affordable education to providers, especially must be submitted in a form and Care Act reporting requirements with physicians, about the benefits and manner, and at a time specified by the current HHS high priority conditions, improved quality of life that Secretary. Any measures selected by the topics and National Quality Strategy occupational therapy services can Secretary must have been endorsed by (NQS) goals and to ultimately provide a provide to hospice patients. the consensus-based entity which holds comprehensive assessment of the Response: We appreciate this a contract regarding performance quality of health care delivered. The comment, but it is outside the scope of measurement with the Secretary under hospice quality reporting program will this rule. section 1890(a) of the Act. This contract align with the HHS National Quality E. Quality Reporting for Hospices is currently held by the National Quality Strategy, particularly with the goals of Forum (NQF). However, section ensuring person and family centered 1. Background and Statutory Authority 1814(i)(5)(D)(ii) of the Act provides that care and promoting effective The CMS seeks to promote higher in the case of a specified area or medical communication and coordination of quality and more efficient health care topic determined appropriate by the care. One fundamental element of for Medicare beneficiaries. Our efforts Secretary for which a feasible and hospice care is adherence to patient are furthered by the quality reporting practical measure has not been endorsed choice regarding issues such as the programs coupled with public reporting by the consensus-based entity, the desired level of treatment and the of that information. Such quality Secretary may specify a measure(s) that location of care. This closely aligns with reporting programs exist for various is (are) not so endorsed as long as due the HHS NQS goal of ensuring person settings such as the Hospital Inpatient consideration is given to measures that and family centered care. Another

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47319

fundamental element of hospice care is We are investigating expanding our propose to include the FEHC survey the use of a closely coordinated proposed measures to adopt some of measure in the 2014 hospice quality interdisciplinary team to provide the these measures in the future. However, reporting program, we are now desired care. This characteristic is evaluation of these measures revealed considering whether to propose to adopt closely aligned with the goal of unique measurement concerns for this measure in next year’s rule. We are promoting effective communication and hospice services generally. Two major not aware of any other measures coordination of care. Patient/family issues were identified. First, all of the applicable to hospice care that have preferences and coordination of care measures currently available for use in been endorsed or adopted by a will be foci of future hospice quality measuring hospice quality of care are consensus organization other than the measure selection. Arriving at such a retrospective and have to be collected NQF. comprehensive set of quality measures using a chart abstraction approach. This The current Hospice CoPs at 42 CFR that reflect high priority conditions and creates a burden for hospice providers. 418.58 require that hospices develop, goals of the HHS NQS will be a multi- Secondly, there is no standardized implement, and maintain an effective, year effort. vehicle for data collection or centralized ongoing, hospice-wide data-driven Other considerations in selecting structure for hospice quality reporting. quality assessment and performance measures include: alignment with other We believe these issues limit our improvement (QAPI) program and that Medicare and Medicaid quality options for measure reporting in the first the hospice maintain documentary reporting programs as well as other year of the Hospice Quality Reporting evidence of its quality assessment and private sector initiatives; suggestions Program. Our plans to require additional performance improvement program and and input received on measures measure reporting are described below be able to demonstrate its operation to including, for example, those received under section 4. ‘‘Additional Measures us. In addition, hospices must measure, during the Listening Session on the Under Consideration.’’ analyze, and track quality indicators, Hospice Quality Reporting Program held including adverse patient events, and We considered measures currently on November 15, 2010; seeking other aspects of performance that enable endorsed by the NQF that are applicable measures that have a low probability of the hospice to assess processes of care, to hospice care. Of the nine measures causing unintended adverse hospice services, and operations as part listed by the NQF as applicable to care consequences; and considering of their QAPI Program. provided at this stage of life, seven measures that are feasible (that is, Hospices have been required to have address patients who specifically died measures that can be technically QAPI programs in place since December implemented within the capacity of our of cancer and various situations 2008 in order to comply with the CoPs. infrastructure for data collection, experienced by those patients in their As a part of the QAPI regulations, since analyses, and calculation of reporting last days of life regardless of whether February 2, 2009, hospices have been and performance rates as applicable). they were cared for by a hospice. These required to develop, implement, and We also considered the burden to seven measures do not address the evaluate performance improvement hospices when selecting measures to provision of hospice care or the breadth projects. The regulations require that: propose. We considered the January 18, of the hospice patient population. The (1) The number and scope of distinct 2011 EO entitled ‘‘Improving Regulation remaining two NQF endorsed hospice- performance improvement projects and Regulatory Review’’ (E.O. 13563), related measures address the quality of conducted annually, based on the needs which instructs federal agencies to care actually provided by hospices. One of the hospice’s population and internal consider regulatory approaches that of the two hospice appropriate measures organizational needs, reflect the scope, reduce burdens and maintain flexibility relates to pain control and is discussed complexity, and past performance of the and freedom of choice for the public. below under section b. The other hospice’s services and operations; and In our search for measures hospice appropriate measure, #0208: (2) The hospice document what appropriate for the first year of the ‘‘Percentage of family members of all performance improvement projects are Hospice Quality Reporting Program, we patients enrolled in a hospice program being conducted, the reasons for considered the results of our who give satisfactory answers to the conducting these projects, and the environmental scan, literature search, survey instrument,’’ requires the measurable progress achieved on these technical expert panel and stakeholder hospice to administer the Family projects. listening sessions that detailed measures Evaluation of Hospice Care (FEHC) Comment: CMS appreciates developed by multiple stewards. Of survey to families of deceased hospice comments received about the potential particular interest were measures from patients. The FEHC survey itself is use of measures calculated using data the National Hospice and Palliative Care available to all hospices and contains 54 from the Family Evaluation of Hospice Organization (NHPCO), the PEACE questions to be returned to the hospice Care (FEHC) Survey. The FEHC was (Prepare. Embrace. Attend. and analyzed/scored in order to produce recognized by commenters as a well- Communicate. Empower.) Project ratings for the measure. A composite known and widely used instrument and conducted by The Carolinas Center for score derived from 17 items on the received support from some Medical Excellence 2006–2008 and the survey and a global score based on the commenters. However, other Assessment Intervention and overall rating question on the survey are commenters raised concerns about the Measurement (AIM) Project conducted included in the measure. Although in use of the FEHC survey including the by the New York QIO, IPRO 2009–2010. the proposed rule we stated that we burden on providers and the potential Measures from these three sources can were uncertain of the number of for bias during data entry and analysis be viewed at the following Web sites: hospices that currently use this survey if the survey is not administered by a http://www.nhpco.org/files/public/ or the number that analyze the third party (rather than hospices Statistics_Research/NHPCO_research_ responses to determine scoring for this themselves). flier.pdf, http:// NQF endorsed measure, we estimate Response: Measurement of patient/ www.thecarolinascenter.org/ that one-third of hospices participate in family experience of hospice care is a default.aspx?pageid=46 and http:// the NHPCO data collection effort (the high priority for CMS. The NQF Web www.ipro.org/index/cms-filesystem- NHPCO is the developer of the FEHC site now contains updated information action/hospice/1_6.pdf. survey measure). Although we did not regarding the endorsed FEHC measure

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47320 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

#0208, which includes a composite patients but also to identifying important patient care quality issues are score and a global score. Details on the opportunities for improvement that for hospices and would serve to provide measure can be found at: http:// pertain to the care of patients. Examples useful information in the design and www.qualityforum.org/ of domains of indicators related to structure of the quality reporting MeasureDetails.aspx? patient care include providing care in program. Our intent is to require actid=0&SubmissionId=456#k=0208&e= accordance with documented patient additional standardized and specific 1&st=&sd=&s=n&so=a&p=1&mt=&cs=. and family goals, effective and timely quality measures to be reported by We recognize that many (approximately symptom management, care hospices in subsequent years. one-third) of all hospices do participate coordination, and patient safety. The proposed collection and in the NHPCO sponsored data collection Section 1814(i)(5)(D)(ii) of the Act submission of data on the proposed and analysis of the FEHC survey. We are provides that ‘‘[i]n the case of a NQF-endorsed measure will be a new also aware of limitations of the FEHC specified area or medical topic requirement for hospices. However, survey, some of which may be determined appropriate by the Secretary since the development, implementation addressed in the near future through for which a feasible measure has not and maintenance of an effective, updates to the survey. Ensuring patient been endorsed by an entity with a ongoing, hospice-wide data driven and family centered care continues to be contract under section 1890(a), the quality assessment and performance a priority for CMS. Therefore, we are Secretary may specify a measure that is improvement program have been considering this measure for inclusion not so endorsed as long as due requirements in the Medicare CoPs in next year’s rule for data collection consideration is given to measures that since 2008, we do not believe that the beginning October 2012 for the FY 2014 have been endorsed or adopted by a collection of the proposed structural program, or for data collection consensus organization identified by the measure on QAPI indicators would be beginning in January 2013 for the FY Secretary.’’ We proposed to adopt this considered new work. There are 2015 program. We will also consider the structural measure because we believe it numerous data collection tools and comments received in making decisions is appropriate for use in evaluating the quality indicators that are available to about future measure development. quality of care provided by hospices. As hospices through hospice industry discussed above, a majority of the NQF- associations and private companies. In b. Quality Measures for the Quality endorsed measures in this category are addition to these options, hospices may Reporting Program for Hospices not hospice-specific or, in the case of choose to use the CMS-sponsored To meet the quality reporting the FEHC survey instrument, that Hospice Assessment Intervention and requirements for hospices for the FY measure may be too burdensome for Measurement (AIM) Project data 2014 payment determination as set forth hospices to implement for the FY 2014 elements, data dictionary, data in section 1814(i)(5) of the Act, we payment determination. We are also not collection tool, and quality indicator proposed that hospices report the NQF- aware of any other measures applicable formulas that are freely available to all endorsed measure that is related to pain to the hospice setting that have been hospices, found at http://www.ipro.org/ management, NQF #0209: The adopted by another consensus index/hospice-aim. percentage of patients who were organization. Accordingly, we proposed We proposed that hospices report the uncomfortable because of pain on to adopt the structural measure under structural measure by January 2013 and admission to hospice whose pain was the authority in section 1814(i)(5)(D)(ii) the NQF measure #0209 by April 2013 brought to a comfortable level within 48 of the Act. in order to be used in the FY 2014 hours. A primary goal of hospice care is We proposed that each hospice payment determination. We are to enable patients to be comfortable and submit data on the proposed structural requiring two different reporting dates free of pain, so that they may live each measure, including the description of in order for details on the QAPI data to day as fully as possible. The provision each of its patient-care focused quality be useful in rulemaking that would of pain control to hospice patients is an indicators (if applicable) to us by impact FY 2014 and to allow hospices essential function, a fundamental January 31, 2013 on a spreadsheet sufficient time to extract, calculate and element of hospice care; therefore, we template to be prepared by us. report the pain measure data collected believe the pain control measure, NQF Specifically, hospice programs would be through December 31, 2012. In addition, #0209, is an important and appropriate required to report whether or not they we proposed that hospices voluntarily measure for the hospice quality have a QAPI program that addresses at report the structural measure by January reporting program. least three indicators related to patient 2012 for purposes of program Additionally, to meet the quality care. In addition, hospices would be development and design. It is important reporting requirements for hospices for required to list all of their patient care to note that the Affordable Care Act the FY 2014 payment determination as indicators. Hospice programs would be allows the Secretary until October 1, set forth in section 1814(i)(5) of the Act, evaluated for purposes of the quality 2012 to publish the measures required we proposed that hospices also report reporting program based on whether or to meet the FY 2014 reporting one structural measure that is not not they respond, not on how they requirement. As such, we have the endorsed by NQF. Structural measures respond. opportunity to also consider assess the characteristics and capacity of In addition, we proposed a voluntary commenters’ suggestions associated the provider to deliver quality health submission of the proposed structural with this final rule in FY 2013 hospice care. The proposed structural measure measure (not for purposes of a payment rulemaking. is: Participation in a Quality Assessment determination or public reporting), Comment: Most commenters and Performance Improvement (QAPI) including the description of each of supported use of the NQF#0209 Program that Includes at Least Three their patient-care focused quality measure overall, and pointed out that Quality Indicators Related to Patient indicators to us by January 31, 2012 on many hospices already track this Care. We believe that participation in a spreadsheet template to be prepared measure, and that it is practical. QAPI programs that address at least by us. Voluntary reporting of the However, some expressed concerns three indicators related to patient care structural measure data with specific about complexities with respect to pain reflects a commitment not only to quality indicators related to patient care management in hospice, about the assessing the quality of care provided to to us would allow us to learn what the exclusion of non-verbal patients, and

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47321

about whether this measure would measure for both the voluntary and Response: We are finalizing our require risk adjustment. The mandatory reporting periods. proposed voluntary submission of the commenters stated the need for a quality Response: We appreciate the structural measure (not for purposes of measure that would take these supportive comments. In response to a payment determination or public challenges into consideration, and requests for clarification, we note that reporting), including the description of provides very specific definitions and the description of the proposed measure each hospice’s patient-care focused specifications in how to collect the data was accurately described in section quality indicators to CMS by January 31, needed to calculate the measure. One II.E.2.b. ‘‘Proposed Quality Measures’’ 2012. We acknowledge and appreciate commenter expressed concern that it is and that the proposed measure was commenters’ support of, and their premature to collect an outcome pain subsequently inaccurately summarized pledging participation in, the voluntary management measure and suggested a in section II.E.2.d ‘‘Data Submission data reporting period. The voluntary process measure instead. Requirements.’’ We are clarifying that data reporting we proposed is designed Response: We appreciate the positive the structural measure is designed to to obtain specific information about feedback. We are finalizing our proposal obtain two pieces of information from hospice organizations’ existing QAPI to require that hospices report the NQF- hospices during both the voluntary programs, including specifics about endorsed measure that is related to pain reporting period and the mandatory patient care related indicators the management, NQF #0209: the period. Hospices will indicate whether hospices monitor as part of their QAPI percentage of patients who were their QAPI program includes at least program. Hospices will be invited to uncomfortable because of pain on three patient care related indicators, and provide us a list of their QAPI indicators admission to hospice whose pain was will also list all their patient related along with specific information about brought to a comfortable level within 48 indicators along with specific each indicator. The information being hours. The data for this measure are information about those indicators. gathered will be used by us to ascertain collected at the patient level, but are Information requested includes: name the breadth and content of existing reported in the aggregate for all patients and description of indicator, domain of hospice QAPI programs. This will help cared for within the reporting period. care the indicator addresses, description inform future measure development. We The patient’s definition of ‘‘comfort’’ is (not the numeric values) of the recognize that not all hospices will used in this measure; there is no set numerator and denominator if available, choose to participate in the voluntary numeric value on a standardized and data source (for example, electronic data submission, and that information assessment that’s used to quantify medical record, paper medical record, obtained will not necessarily be ‘‘comfort.’’ The measure is designed to adverse events log). Hospices will not be generalizable. We also recognize that capture information on each patient’s asked to report their level of information obtained during the overall experience of pain. The measure performance on these patient care voluntary period will not necessarily be is not limited to asking the patient about related indicators at this time. The representative of all hospices’ QAPI one specific pain site; rather it is a information being gathered will be used programs. The data collection form will be made reflection of the patient’s overall by CMS to ascertain the breadth and available, along with education in the experience of pain. There is no content of existing hospice QAPI form of webinars, data dictionary, and programs. This stakeholder input will assumption that every patient’s pain other supporting documents, before the will be managed to a ‘‘comfortable’’ help inform future measure voluntary data submission date. level within 48 hours. The measure development. Based on the comments Comment: Commenters supported the reflects the opinions of experienced we received, we are therefore finalizing use of an electronic spreadsheet as a hospice professionals that, in the our adoption of the structural measure: temporary approach to data submission aggregate, most patients admitted in Participation in a Quality Assessment for the voluntary and mandatory data pain can and should be more and Performance Improvement (QAPI) reporting period, but urged the creation comfortable within 48 hours of Program that Includes at Least Three of a more user friendly and less labor admission. The measure allows for the Quality Indicators Related to Patient intensive approach in the future, fact that some patients will not achieve Care. Hospices will be required to including approaches that use data from a comfortable level because of submit data on the structural measure, Electronic Health Records. Commenters complications like those suggested by including the description of each of also expressed an eagerness to see the commenters. This measure was tested in their patient-care focused quality data collection template as soon as two studies during its initial indicators. possible. development, and it has been collected Comment: Commenters expressed Response: We are finalizing our on a voluntary basis by hospices for support of and pledged participation in proposal to provide a spreadsheet many years. We will consider the use of the voluntary data reporting period. template to hospices as a temporary process measures related to pain Some commenters questioned how the means of data submission. To maximize management and will consider all voluntary data collected about hospices’ the security of transmission of data from comments we receive as we continue to QAPI programs would be used by CMS, hospices to us, and to reduce data errors evaluate additional measures for use in and cautioned that the data would likely and streamline analysis, we are the hospice quality reporting program. not be comprehensive or generalizable. investigating the feasibility of a Web Comment: We received several In addition, commenters expressed interface for the data collection. The comments in support of the requirement concerns regarding the need for spreadsheet template will be part of this that hospices report the structural standardization of patient outcome web interface for the data entry. measure: Participation in a Quality definitions when soliciting data. Hospices will be asked to provide Assessment and Performance Finally, a few commenters urged CMS identifying information, and then Improvement (QAPI) Program that to make available as soon as possible the complete a Web based data entry that Includes at Least Three Quality standardized voluntary data collection contains four questions. Hospices would Indicators Related to Patient Care. We form along with training and education report whether they have a QAPI also received a few comments indicating to ensure a smooth process for the program that includes at least three a need for clarification about this voluntary data submission period. patient care related indicators and

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47322 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

hospices would be asked to enter Response: We are finalizing our hospices’ report of (1) Whether they information about all of their patient proposal that the first hospice quality have a QAPI program that addresses at care related indicators including name mandatory reporting cycle for the least three indicators related to patient of indicator, domain of care, description proposed NQF-endorsed measure and care, and (2) the subject matter of all of (not the numeric values) of the the proposed structural measure consist their patient care indicators for the numerator and denominator if available, of data collected from October 1, 2012 period October 1, 2011 through and data source (for example, electronic through December 31, 2012. We are also December 31, 2011. Submission of these medical record, paper medical record, finalizing our proposal that all reports would be required by January adverse events log) using a spreadsheet subsequent hospice quality reporting 31, 2012. format. Training for use of this Web cycles be based on a calendar-year (for Comment: Commenters supported the based data submission tool will be example, January 1, 2013 through use of an electronic spreadsheet as a provided to hospices through webinars December 31, 2013 for determination of temporary approach to data submission and other downloadable materials. A the hospice market basket update for for the voluntary and mandatory data call-in help line will also be established each hospice in FY 2015, etc.). Hospices reporting period, but urged the creation and staffed, should hospices have will report their data for the structural of a more user friendly and less labor specific questions requiring immediate measure by January 2013 and data for intensive approach in the future, assistance. For hospices that cannot NQF #0209 by April 2013 to allow including approaches that use data from complete the Web based data entry, a ample time for analysis of data and EHRs. Commenters also expressed an downloadable data entry form will be subsequent impact on hospices’ annual eagerness to see the data collection available. payment updates in advance of the start template as soon as possible. of FY 2014 (10/1/2013–9/30/2014). This Response: We are finalizing our c. Proposed Timeline for Data Collection timeframe will also be necessary in proposal that hospices submit data in Under the Quality Reporting Program future years where analysis will be the FY prior to the payment for Hospices required in advance of any public determination. For the FY 2014 To meet the quality reporting reporting of data. payment determination, hospices will requirements for hospices for the FY We are also finalizing our proposal be required to submit data for the NQF- 2014 payment determination as set forth that the hospice voluntary quality endorsed measure no later than April 1, in section 1814(i)(5) of the Act, we reporting cycle consist of data collected 2013. Data submission for the structural proposed that the first hospice quality from October 1, 2011 through December measure will include the hospices’ reporting cycle for the proposed NQF- 31, 2011. report of (1) Whether they have a QAPI endorsed measure and the proposed program that addresses at least three structural measure would consist of data d. Data Submission Requirements indicators related to patient care, and (2) collected from October 1, 2012 through We generally proposed that hospices the subject matter of all of their patient December 31, 2012. This timeframe submit data in the fiscal year prior to care indicators for the period October 1, would permit us to determine whether the payment determination. For the 2012 through December 31, 2012. each hospice was eligible to receive the fiscal year 2014 payment determination, Submission of these reports will be full market basket update for FY 2014 we proposed that hospices submit data required by January 31, 2013. based on a full quarter of data. This also for the proposed NQF-endorsed measure The proposed rule stated that we provides sufficient time after the end of based on the measure specifications for would provide a spreadsheet template the data collection period to accurately that measure, which can be found at to hospices as a temporary means of determine each hospice’s market basket http://www.qualityforum.org, no later data submission. To maximize the update for FY 2014. We proposed that than April 1, 2013. Data submission for security of transmission of data from all subsequent hospice quality reporting the structural measure would include hospices to us, and to reduce data errors cycles be based on the calendar-year the hospices’ report of (1) Whether they and streamline analysis, we are basis (for example, January 1, 2013 have a QAPI program that addresses at investigating the feasibility of a Web through December 31, 2013 for least three indicators related to patient interface for the data collection. The determination of the hospice market care, and (2) the subject matter of all of spreadsheet template will be part of this basket update for each hospice in FY their patient care indicators for the Web interface for the data entry. 2015, etc.). period October 1, 2012 through Hospices will be asked to provide To voluntarily submit the structural December 31, 2012. Submission of these identifying information, and then measure, we proposed that the hospice reports would be required by January complete a Web based data entry that voluntary quality reporting cycle would 31, 2013. contains four questions. Hospices would consist of data collected from October 1, We proposed that both measures’ data report they have a QAPI program that 2011 through December 31, 2011. This be submitted to us on a spreadsheet includes at least three patient care- timeframe would permit us to analyze template to be prepared by us. We related indicators and all hospices the data to learn what the important would announce operational details would be asked to enter information patient care quality issues were for with respect to the data submission about all of their patient care indicators hospices as we enhance the quality methods and format for the hospice including name of indicator, domain of reporting program design to require quality data reporting program using care, description (not the numeric more standardized and specific quality this CMS Web site http://www.cms.gov/ values) of the numerator and measures to be reported by hospices in LTCH-IRF-Hospice-Quality-Reporting by denominator if available, and data subsequent years. no later than December 31, 2011. source (for example, electronic medical Comment: We received minimal yet For the voluntary submission, we record, paper medical record, adverse supportive comments on the proposed proposed that hospices submit data for events log) using a spreadsheet format. data collection timeframes. One the proposed structural measure based Training for use of this Web based data commenter questioned why data would on the spreadsheet template to be submission tool would be provided to be required so early for the FY 2014 prepared by us, no later than January 31, hospices through webinars and other payment determination and requested 2012. Voluntary data submission for the downloadable materials. A call-in help further clarification. structural measure would include the line would also be established and

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47323

staffed, should hospices have specific obtain stakeholder input, including test the usefulness of this standardized questions requiring immediate Listening Sessions, Technical Expert assessment instrument (now referred to assistance. For hospices that cannot Panels, and public comment periods. as the Continuity Assessment Record & complete the Web based data entry, a Stakeholder input is critical to the Evaluation, CARE). We believe such an downloadable data entry form would be process, and we value it highly. assessment instrument would be available. We are finalizing all of these 4. Additional Measures Under beneficial in supporting the submission proposals. We would announce further Consideration of data on quality measures by requiring operational details with respect to the standardized data with regard to data submission methods and format for As described above, we are hospice patients, similar to the current the mandatory hospice quality data considering expanding the proposed MDS 3.0 and OASIS–C that support a reporting program using the CMS Web measures to include measures from the variety of quality measures for nursing site http://www.cms.gov/LTCH-IRF- National Hospice and Palliative Care homes and home health agencies, Hospice-Quality-Reporting no later than Organization (NHPCO), the PEACE respectively. The CARE data set used by December 31, 2011 and for the Project and the AIM Project. While in hospices would require editing to voluntary reporting cycle by November this first year, we will build a address the unique and specific 2011. foundation for quality reporting by assessment needs of the hospice patient requiring hospices to report one NQF- 3. Public Availability of Data Submitted population. We invited comments on endorsed measure and one structural the implementation of a standardized Under section 1814(i)(5)(E)of the Act, measure, we seek to achieve a assessment instrument for hospices that the Secretary is required to establish comprehensive set of quality measures would similarly support the calculation procedures for making any quality data to be available for widespread use for of quality measures. submitted by hospices available to the informed decision making and quality We invited public comment on public. Such procedures will ensure improvement. We expect to explore and considering modifications to the CARE that a hospice will have the opportunity expand the measures in various ways. data set to capture information to review the data regarding its program Future topics under consideration for specifically relevant to measuring the before it is made public. In addition, quality data reporting include patient quality of care and services delivered by under section 1814(i)(5)(E) of the Act, safety, effective symptom management, hospices such as patient/family the Secretary is authorized to report patient and family experience of care, preferences and the degree to which quality measures that relate to services and alignment of care with patient those preferences were met for care furnished by a hospice on the CMS preferences. For quality data reporting delivery, symptom management, internet Web site. At the time of the in FY2014 or FY2015, we are also spiritual needs and other aspects of care publication of this final rule, no date particularly interested in the has been set for public reporting of data. development of new measures related to pertinent to the hospice patient We recognize that public reporting of these topics and in the further population. The current version of the quality data is a vital component of a development of existing measures that CARE data set can be found at http:// robust quality reporting program and are can be found on the following Web www.pacdemo.rti.org. fully committed to developing the sites: http://www.nhpco.org/files/ Finally, we also solicited comments necessary systems for public reporting public/Statistics_Research/ on ways which we could expand the of hospice quality data. NHPCO_research_flier.pdf, http:// structural reporting measure to also Comment: Commenters supported our www.thecarolinascenter.org/ include hospice performance on each development of systems for future default.aspx?pageid=46 and http:// QAPI indicator reported in the public reporting and provided input on www.ipro.org/index/cms-filesystem- performance period. that process. Commenters suggested we action/hospice/1_6.pdf. Comment: We received many gain a clear understanding of what is We welcomed comments on whether comments about the need for future important to consumers when all, some, any, or none of these measures to reflect the full range of discriminating between providers. A measures should be considered for hospice practice and approach to care. few commenters also urged us to future rulemaking. We also solicited Commenters pointed out that measures involve broad representation from comments on ways by which we can need to include domains of care stakeholders in development of future adopt these measures in a standardized including psychosocial and spiritual to public reporting. Commenters also way that is not overly burdensome to fully reflect hospice quality of care. In indicated that some states already have hospice providers and reflects hospice addition, commenters indicated that public reporting, and that where patient input. measures needed to reflect patient possible, CMS-required reporting To support the standardized preference and refusal of treatment. should not result in duplication of collection and calculation of quality Finally, commenters pointed out that efforts. measures specifically focused on measures needed to be very specific Response: We appreciate comments hospice services, we believe the with regard to definitions, and easy to received indicating support for the required data elements would extract from medical records (paper or development of systems for future potentially require a standardized electronic). We received numerous and public reporting, and willingness to assessment instrument. detailed comments related to the provide input. We are taking into We have developed an assessment PEACE, AIM and NHPCO measures, consideration the body of literature instrument for the ‘‘Post-Acute Care including measures calculated from the related to consumer perceptions of what Payment Reform Demonstration collection of data using the Family is important to them during the measure Program,’’ as required by section 5008 of Evaluation of Hospice Care (FEHC). development process. In addition, we the 2005 Deficit Reduction Act. This is While commenters were supportive of are aware of state-based quality a standardized assessment instrument future measure development, a few reporting initiatives, and plan to take that could be used across all post-acute commenters cautioned against these into consideration as well. Finally, care sites to measure functional status implementing future measures for the measure development process used and other factors during treatment and which evidence of validity is not fully includes a variety of ways in which we at discharge from each provider and to established.

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47324 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

Response: We appreciate the specific proposed rule without changes. Those According to MedPAC’s March 2011 and insightful analyses provided and provisions of this final rule that differ ‘‘Report to Congress: Medicare Payment will carefully consider this input as we from the proposed rule are as follows: Policy’’ (available at http:// continue to develop the hospice quality • In section II.B, Aggregate Cap www.medpac.gov/chapters/ reporting program. Future measures will Calculation Methodology, we are Mar11_Ch11.pdf), Medicare be proposed after being selected through clarifying that the reopening period is expenditures for hospice services our measure development process. This three years (except in cases of fraud, exceeded $12 billion in 2009 and the process is designed to prevent where it is unlimited), in accordance aggregate Medicare margin in 2008 was implementation of measures without with existing regulations. We are 5.1 percent. In addition, MedPAC found sufficient evidence for use in care changing proposed regulatory text at a 50-percent growth in the number of settings. We will consider the comments 418.309(d)(3) to indicate that hospices from 2000 to 2009, of which a received in making decisions about adjustment of prior year cap majority were for-profit hospices. future measure development. determinations is subject to existing Finally, MedPAC noted a change in Comment: Comments were also reopening regulations. patient case-mix from predominantly received about the development of a • In section II.E, Quality Reporting for cancer diagnoses to non-cancer standardized tool, such as the CARE Hospices, the proposed rule stated that diagnoses. The growth in Medicare tool, as an instrument to gather CMS would provide a spreadsheet expenditures, margins, and number of standardized data items. Commenters template to hospices as a temporary new hospices, and the change in patient voiced general support of the idea of means of data submission. To maximize case-mix, raise concern that the current developing a data tool specifically for the security of transmission of data from hospice payment methodology may hospice and offered specific ideas on hospices to CMS, and to reduce data have created unintended incentives and domains of hospice patient care that are errors and streamline analysis, CMS is may not reflect the resource usage missing from the current tool. Some investigating the feasibility of a Web associated with the current mix of commenters advised against adopting interface for the data collection. The hospice patients. Over the past several existing tools that were developed for spreadsheet template will be part of this years, MedPAC, the Government other settings and other commenters Web interface for the data entry. In Accounting Office, and the Office of offered suggestions for additions to the response to comments, we have also Inspector General all recommended that tool that would make it appropriate for clarified the description of the structural we collect more comprehensive data in hospice patients. measure which is designed to obtain order to better assess the utilization of Response: We appreciate the two pieces of information from hospices the Medicare hospice benefit. MedPAC comments submitted about a future during both the voluntary reporting has also suggested an alternative standardized data set for use in hospice. period and the mandatory period. payment model that they believe will We recognize the tension between the Hospices will indicate whether their address the vulnerabilities in the desire for a tool to standardize data QAPI program includes at least three current payment system. elements collected that would enable patient care related measures, and will We are in the early stages of reform comparison of hospices ‘‘apples to also list all their patient related analysis. We have conducted a literature apples’’ and the need for development indicators along with specific review, are in the process of conducting of evidence for quality measures in information about those indicators. We initial data analysis, and our contractor certain domains of care. We also are finalizing our adoption of this convened a technical advisory panel in recognize that the CARE in its current measure. June of 2011. We are also working in form would not meet the needs of We are implementing all other collaboration with the Assistant hospice patients or providers, and that provisions in the proposed rule as Secretary of Planning and Evaluation to revisions including the addition of care proposed. develop analysis that may be used to domains and items would be required to inform our reform efforts. We will make CARE hospice-appropriate. IV. Updates on Issues Not Proposed for continue to update stakeholders on our Comment: We received one comment FY 2012 Rulemaking progress. Section 10326 of the Affordable Care in response to our request for input A. Update on Hospice Payment Reform Act directs the Secretary to conduct a about future expansion of the structural and Value Based Purchasing measure to include hospice performance pilot program to test a value-based on each QAPI indicator. The commenter Section 3132 of the Affordable Care purchasing program for hospices no did not support the expansion of the Act of 2010 (Pub. L. 111–148) later than January 1, 2016. As described structural measure in the future, stating authorized the Secretary to collect in section II.E. ‘‘Quality Reporting for that the data would not be usable unless additional data and information Hospices’’ above, we finalized two we know the definitions, specifications, determined appropriate to revise measures for hospices to report to us, and data dictionaries used by each payments for hospice care and for other with one measure (the QAPI measure) to hospice, or would have to standardize purposes. The types of data and be reported no later than January 2013 the measure. The commenter also was information described in the Affordable and the other measure (the pain unsure what use the measure would be. Care Act attempt to capture resource measure) to be reported by April 2013. Response: We appreciate the utilization, which can be collected on We believe that these measures are a comment received, and understand the claims, cost reports, and possibly other quality reporting foundation upon limitations of the QAPI program mechanisms as we determine to be which we will expand. Over the course structural measure. We will consider appropriate. The data collected would of the next few years, no later than this comment, along with data from the be used to revise hospice payment beginning in FY 2015, we expect to voluntary data collection period to methodology for routine home care rates require hospices to report an expanded inform future decisions. (in a budget-neutral manner in the first and comprehensive set of quality year), no earlier than October 1, 2013. In measures from which we can select for III. Provisions of the Final Regulations order to determine the revised hospice pilot testing a value-based purchasing For the most part, this final rule payment methodology, we will consult program. During the FY 2013, FY 2014 incorporates the provisions of the with hospice programs and MedPAC. and FY 2015 hospice rulemaking, we

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47325

plan to iteratively implement the We are moving forward with this Quality Measures for the Quality expanded measures, and solicit industry project, and expect the redesigned PS&R Reporting Program for Hospices comments regarding analysis and design system to be able to provide complete Section 1814(i)(5)(C) of the Act options for a hospice value-based utilization data needed for calculating requires that each hospice must submit purchasing pilot which would improve hospice caps. We believe that the data to the Secretary on quality the quality of care while reducing redesigned PS&R system will provide measures specified by the Secretary. spending. We will also consult with hospices with a greater ability to Such data must be submitted in a form stakeholders in developing the monitor their caps by providing readily and manner, and at a time specified by implementation plan, as well as accessible information on beneficiary the Secretary. Under section considering the outcomes of any recent utilization. We expect it to be available 1814(i)(5)(D)(iii) of the Act, the demonstration projects related to value to hospices before year’s end. We Secretary must not later than October 1, based purchasing which we believe encourage all hospices to become 2012 publish selected measures that might be relevant to the hospice setting. familiar with the redesigned PS&R and will be applicable with respect to FY We will provide further information on to use the information it will make 2014. the progress of our efforts in future available in managing their respective In implementing the Hospice quality rulemaking. caps. In the future, we may consider We did not solicit comments on this reporting program, we seek to collect requiring hospices to self-report their measure information with as little section, but we received three caps, using PS&R data. comments. burden to the providers as possible and While we did not solicit comments on which reflects the full spectrum of Comment: Some commenters noted this section, we received 1 comment. that the hospice payment system is quality performance. Our purpose in Comment: A commenter looks collecting these data is to help achieve based upon the benefit as it was in the forward to the redesigned PS&R, and early 1980’s, and that the benefit has better health care and improve health asked to give input before the newly through the widespread dissemination changed considerably. While they agree designed PS&R report is finalized. that the payment system needs to be and use of performance information. Response: We appreciate the updated, they suggested that we not commenter’s support for the PS&R A. Structural Measure: Participation in make piecemeal changes, and that we redesign; the PS&R redesign was a Quality Assessment Performance accumulate the necessary data to undertaken in consultation with Improvement Program That Includes at overhaul the system. A few commenters contractors, and with input previously Least Three Indicators Related to Patient wrote that payment reform should not Care be undertaken without compelling solicited from the industry in prior reasons, and that the changes made rulemaking (see our FY 2011 Hospice Consistent with this final rule, must reflect the cost of services Wage Index Notice with Comment, 75 hospices will voluntarily report to us by provided. One commenter urged us to FR 42950, dated July 22, 2010). We January 31, 2012 their participation in a work with a national industry expect more information on the PS&R QAPI program that includes the association in reforming the payment redesign to be forthcoming, and will hospices’ report of whether they have a system. Commenters suggested that we keep the industry up-to-date through QAPI program that addresses at least pilot any payment system changes Open Door Forums, list-serves, and the three indicators related to patient care, through a demonstration project, which hospice center webpage (http:// and if so, the subject matter of all of would help overcome a lack of reliable www.cms.gov/center/hospice.asp). their patient care indicators during the data to evaluate payment V. Collection of Information time frame October 1 through December methodologies, would allow for testing Requirements 31, 2011. Data submitted for the last to assess the impact of the reformed quarter of calendar year 2011 shall be model on beneficiary access, and would Under the Paperwork Reduction Act voluntary on the part of hospice help ensure a smoother transition. of 1995(PRA), we are required to providers and shall not impact their Response: We appreciate the provide 60-day notice in the Federal fiscal year 2014 payment determination. commenters’ input, and will consider Register and solicit public comment The information that hospices will be these suggestions as we move forward before a collection of information required to report, in both the voluntary with payment reform. We reiterate that requirement is submitted to the Office of and mandatory phases of reporting, the Affordable Care Act calls for us to Management and Budget (OMB) for consists of stating (1) Whether or not work with MedPAC and the industry in review and approval. In order to fairly they participate in a QAPI program that reforming the payment system. evaluate whether an information includes at least three indicators related collection should be approved by OMB, to patient care and (2) the subject matter B. Update on the Redesigned Provider section 3506(c)(2)(A) of the PRA of all of their patient care indicators. Statistical & Reimbursement Report requires that we solicit comment on the Expectations of the QAPI programs are (PS&R) following issues: set forth in the Hospice Conditions of In our FY 2011 Hospice Wage Index • The need for the information Participation (CoPs) at 42 CFR 418.58(a) Notice with Comment Period, we collection and its usefulness in carrying through 418.58(e). These conditions of solicited comments on a redesigned out the proper functions of our agency. participation require that hospices must PS&R system, which would allow • The accuracy of our estimate of the develop, implement, and maintain an hospices easy access to national hospice information collection burden. effective, ongoing, hospice-wide, data- utilization data on their Medicare • The quality, utility, and clarity of driven QAPI program and that the hospice beneficiaries. As described in the information to be collected. hospice must maintain documentary section II of the proposed rule, some • Recommendations to minimize the evidence of its QAPI programs. commenters were supportive of the information collection burden on the Hospices have been required to meet all idea, and said they needed access to affected public, including automated of the standards set forth in 42 CFR each beneficiary’s full utilization history collection techniques. 418.58(a) through 418.58(e) as a to better manage their caps and to meet We solicited public comment on each condition of participation in the the new face-to-face requirements. of these issues in the proposed rule. Medicare and Medicaid programs since

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47326 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

2008. Therefore, the identification of We did not receive any public the FY 2012 hospice wage index and of quality indicators related to patient care comments on this collection of reducing the BNAF by an additional 15 will not be considered new or information section. percent, for a total BNAF reduction of additional work. 40 percent (10 percent in FY 2010, 15 VI. Economic Analyses Under the quality reporting program, percent in FY 2011, and 15 percent in hospices will voluntarily report to us by A. Regulatory Impact Analysis FY 2012). The BNAF reduction is part no later than January 31, 2012, data that of a 7-year BNAF phase-out that was 1. Introduction would include (1) Whether they have a finalized in previous rulemaking (74 FR QAPI program that addresses at least We have examined the impacts of this 39384 (August 6, 2009)), and is not a three indicators related to patient care, proposed rule as required by EO 12866 policy change. and (2) the subject matter of all of their (September 30, 1993, Regulatory As discussed previously, the patient care indicators during the time Planning and Review), EO 13563 on methodology for computing the hospice frame via a CMS-prepared spreadsheet Improving Regulation and Regulatory wage index was determined through a template. We anticipate that this Review (January 18, 2011), the negotiated rulemaking committee and reporting will take no more than 15 Regulatory Flexibility Act (September promulgated in the August 8, 1997 minutes of time to prepare the structural 19, 1980; Pub. L. 96–354) (RFA), section hospice wage index final rule (62 FR measure report. 1102(b) of the Social Security Act, 42860). The BNAF, which was Thereafter, each of the 3,531 hospices section 202 of the Unfunded Mandates promulgated in the August 8, 1997 rule, in the United States will be required to Reform Act of 1995 (March 22, 1995; is being phased out. This rule updates submit this structural measure Pub. L. 104–4), EO 13132 on Federalism the hospice wage index in accordance information to us one time per year. We (August 4, 1999), and the Congressional with the 2010 Hospice Wage Index final estimate that it will take approximately Review Act (5 U.S.C. 804(2)). rule, which finalized a 10 percent 15 minutes to prepare and complete the Executive Orders 12866 and 13563 reduced BNAF for FY 2010 as the first submission of this structural measure direct agencies to assess all costs and year of a 7-year phase-out of the BNAF, report. Therefore, the estimated number benefits of available regulatory to be followed by an additional 15 of hours spent by all hospices in the alternatives and, if regulation is percent per year reduction in the BNAF U.S. preparing and submitting such data necessary, to select regulatory in each of the next six years. Total totals 883 hours. We believe that the approaches that maximize net benefits phase-out will be complete by FY 2016. compilation and transmission of the (including potential economic, 4. Detailed Economic Analysis data can be completed by data entry environmental, public health and safety personnel. We have estimated a total effects, distributive impacts, and Column 4 of Table 1 shows the cost impact of $18,163 to all hospices equity). Executive Order 13563 combined effects of the updated wage for the implementation of the hospice emphasizes the importance of data (the 2011 pre-floor, pre-reclassified structural measure quality reporting quantifying both costs and benefits, of hospital wage index) and of the program, based on 883 total hours for a reducing costs, of harmonizing rules, additional 15 percent reduction in the billing clerk at $20.57/hour (which and of promoting flexibility. This rule BNAF (for a total BNAF reduction of 40 includes 30 percent overhead and fringe has not been designated an percent), comparing estimated payments benefits, using most recent BLS wage ‘‘economically’’ significant rule, under for FY 2012 to estimated payments for data). We have developed an section 3(f)(1) of EO 12866. However, FY 2011. The FY 2011 payments used information collection request for OMB we have voluntarily prepared a for comparison have a 25 percent review and approval. Regulatory Impact Analysis that to the reduced BNAF applied. We estimate that the total hospice payments for FY B. Outcome Measure: NQF Measure best of our ability presents the costs and benefits of this proposed rule. 2012 will decrease by $80 million as a #0209, Percentage of Patients Who Were result of the application of the updated Uncomfortable Because of Pain on 2. Statement of Need wage data ($+10 million) and the Admission to Hospice Whose Pain Was This final rule follows 42 CFR additional 15 percent reduction in the Brought Under Control Within 48 Hours 418.306(c) which requires annual BNAF ($¥90 million). This estimate At this time, we have not completed publication, in the Federal Register, of does not take into account any inpatient development of the information the hospice wage index based on the hospital market basket update, which is collection instrument that hospices most current available CMS hospital 3.0 percent for FY 2012. This 3.0 would have to submit in order to wage data, including any changes to the percent does not reflect the provision in comply with the NQF measure #0209 definitions of MSAs. In addition, it the Affordable Care Act which reduces reporting requirements as discussed implements section 3004 of the the inpatient hospital market basket earlier in this final rule. Because the Affordable Care Act of 2010, which update for FY 2012 by 0.1 percentage instrument for the reporting of this directs the Secretary to specify quality point, since that reduction does not measure is still under development, we measures for the hospice program. apply to hospices. The final inpatient cannot assign a complete burden Lastly, this final rule implements hospital market basket update and estimate at this time. Once the changes to the aggregate cap calculation, associated payment rates are instrument is available, we will publish to requirements related to physicians communicated through an the required 60-day and 30-day Federal who perform face-to-face encounters, administrative instruction in the Register notices to solicit public and offers several clarifying technical summer. The estimated effect of 3.0 comments on the data submission form corrections. percent inpatient hospital market basket and to announce the submission of the update on payments to hospices is information collection request to OMB 3. Overall Impacts approximately $420 million. Taking into for its review and approval. The data The overall impact of this final rule is account 3.0 percent inpatient hospital collection of the NQF measure #0209 for an estimated net decrease in Federal market basket update (+$420 million), the FY 2014 payment determination is payments to hospices of $80 million for in addition to the updated wage data for the time period from October 1, 2012 FY 2012. We estimated the impact on ($+10 million) and the additional 15 to December 31, 2012. hospices, as a result of the changes to percent reduction in the BNAF ($¥90

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47327

million), it is estimated that hospice final FY 2012 hospice wage index is The effects of using the updated wage payments would increase by $340 based upon the 2011 pre-floor, pre- data combined with the additional 15 million in FY 2012 ($420 million + $10 reclassified hospital wage index and the percent reduction in the BNAF are million ¥$90 million = $340 million). most complete claims data available (FY illustrated in column 4 of Table 1. The percent change in estimated 2010) with an additional 15 percent We have included a comparison of the payments to hospices due to the reduction in the BNAF (combined with combined effects of the additional 15 combined effects of the updated wage the 10 percent reduction in the BNAF percent BNAF reduction, the updated data, the additional 15 percent taken in FY 2010, and the additional 15 wage data, and a 3.0 percent inpatient reduction in the BNAF (for a total BNAF percent taken in 2011, for a total BNAF hospital market basket update for FY reduction of 40 percent), and the reduction of 40 percent in FY 2012). inpatient hospital market basket update The BNAF reduction is part of a 7-year 2012 (Table 1, column 5). Presenting of 3.0 percent is reflected in column 5 BNAF phase-out that was finalized in these data gives the hospice industry a of the impact table (Table 1). previous rulemaking, and is not a policy more complete picture of the effects on change. their total revenue of the hospice wage a. Effects on Hospices For the purposes of our impacts, our index discussed in this proposed rule, This section discusses the impact of baseline is estimated FY 2011 payments the BNAF phase-out, and the final FY the projected effects of the hospice wage with a 25 percent BNAF reduction, 2012 inpatient hospital market basket index, including the effects of a 3.0 using the 2010 pre-floor, pre-reclassified update. Certain events may limit the percent inpatient hospital market basket hospital wage index. Our first scope or accuracy of our impact update for FY 2012 that is comparison (column 3, Table 1) analysis, because such an analysis is communicated separately through an compares our baseline to estimated FY susceptible to forecasting errors due to administrative instruction. This final 2012 payments (holding payment rates other changes in the forecasted impact rule continues to use the CBSA-based constant) using the updated wage data time period. The nature of the Medicare pre-floor, pre-reclassified hospital wage (2011 pre-floor, pre-reclassified hospital program is such that the changes may index as a basis for the hospice wage wage index). Consequently, the interact, and the complexity of the index and continues to use the same estimated effects illustrated in column 3 interaction of these changes could make policies for treatment of areas (rural and of Table 1 show the distributional it difficult to predict accurately the full urban) without hospital wage data. The effects of the updated wage data only. scope of the impact upon hospices.

TABLE 1—ANTICIPATED IMPACT ON MEDICARE HOSPICE PAYMENTS OF UPDATING THE PRE-FLOOR, PRE-RECLASSIFIED HOSPITAL WAGE INDEX DATA, REDUCING THE BUDGET NEUTRALITY ADJUSTMENT FACTOR (BNAF) BY AN ADDITIONAL 15 PERCENT (FOR A TOTAL BNAF REDUCTION OF 40 PERCENT) AND APPLYING A 3.0 PERCENT† INPATIENT HOS- PITAL MARKET BASKET UPDATE TO THE FY 2012 HOSPICE WAGE INDEX, COMPARED TO THE FY 2011 HOSPICE WAGE INDEX WITH A 25 PERCENT BNAF REDUCTION

Percent Percent change in Percent change in hospice change in hospice payments due Number of hospice payments due to wage index Number of routine home payments due to wage index change, hospices * care days in to FY 2012 change, addi- additional 15% thousands wage index tional reduction change 15% reduction in BNAF, and in BNAF market basket update†

(1) (2) (3) (4) (5)

ALL HOSPICES ...... 3,552 79,509 0.1% (0.5%) 2.5% URBAN HOSPICES ...... 2,494 69,238 0.1% (0.5%) 2.5% RURAL HOSPICES ...... 1,058 10,272 (0.2%) (0.6%) 2.3% BY REGION—URBAN: NEW ENGLAND ...... 134 2,527 (0.7%) (1.3%) 1.7% MIDDLE ATLANTIC ...... 244 7,488 (0.4%) (0.9%) 2.0% SOUTH ATLANTIC ...... 359 15,713 0.3% (0.3%) 2.7% EAST NORTH CENTRAL ...... 336 10,058 0.2% (0.4%) 2.6% EAST SOUTH CENTRAL ...... 177 4,456 (0.1%) (0.6%) 2.4% WEST NORTH CENTRAL ...... 189 4,482 (0.3%) (0.9%) 2.1% WEST SOUTH CENTRAL ...... 485 9,249 0.1% (0.4%) 2.6% MOUNTAIN ...... 234 5,818 (0.0%) (0.6%) 2.4% PACIFIC ...... 299 8,070 0.6% (0.0%) 3.0% OUTLYING ...... 37 1,377 (0.4%) (0.4%) 2.6% BY REGION—RURAL: NEW ENGLAND ...... 26 200 (0.1%) (0.7%) 2.3% MIDDLE ATLANTIC ...... 45 517 0.4% (0.2%) 2.8% SOUTH ATLANTIC ...... 139 2,176 (0.8%) (1.2%) 1.8% EAST NORTH CENTRAL ...... 147 1,779 (0.6%) (1.1%) 1.8% EAST SOUTH CENTRAL ...... 154 1,794 0.1% (0.1%) 2.9% WEST NORTH CENTRAL ...... 196 1,122 (0.5%) (0.9%) 2.0% WEST SOUTH CENTRAL ...... 189 1,574 0.8% 0.3% 3.3% MOUNTAIN ...... 109 648 0.3% (0.1%) 2.9% PACIFIC ...... 52 450 (0.7%) (1.3%) 1.6% OUTLYING ...... 1 13 0.0% 0.0% 3.0%

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47328 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

TABLE 1—ANTICIPATED IMPACT ON MEDICARE HOSPICE PAYMENTS OF UPDATING THE PRE-FLOOR, PRE-RECLASSIFIED HOSPITAL WAGE INDEX DATA, REDUCING THE BUDGET NEUTRALITY ADJUSTMENT FACTOR (BNAF) BY AN ADDITIONAL 15 PERCENT (FOR A TOTAL BNAF REDUCTION OF 40 PERCENT) AND APPLYING A 3.0 PERCENT† INPATIENT HOS- PITAL MARKET BASKET UPDATE TO THE FY 2012 HOSPICE WAGE INDEX, COMPARED TO THE FY 2011 HOSPICE WAGE INDEX WITH A 25 PERCENT BNAF REDUCTION—Continued

Percent Percent change in Percent change in hospice change in hospice payments due Number of hospice payments due to wage index Number of routine home payments due to wage index change, hospices * care days in to FY 2012 change, addi- additional 15% thousands wage index tional reduction change 15% reduction in BNAF, and in BNAF market basket update†

(1) (2) (3) (4) (5)

BY SIZE/DAYS: 0–3,499 DAYS (small) ...... 649 1,083 (0.0%) (0.5%) 2.4% 3,500–19,999 DAYS (medium) ...... 1,767 17,897 (0.1%) (0.6%) 2.4% 20,000+ DAYS (large) ...... 1,136 60,530 0.1% (0.5%) 2.5% TYPE OF OWNERSHIP: VOLUNTARY ...... 1,170 31,470 0.0% (0.5%) 2.5% PROPRIETARY ...... 1,895 40,587 0.1% (0.4%) 2.6% GOVERNMENT ** ...... 487 7,452 (0.1%) (0.7%) 2.3% HOSPICE BASE: FREESTANDING HOME HEALTH ...... 2,448 62,588 0.1% (0.5%) 2.5% AGENCY ...... 571 10,441 0.1% (0.5%) 2.5% HOSPITAL ...... 513 6,274 (0.1%) (0.6%) 2.3% SKILLED NURSING FACILITY ...... 20 206 0.3% (0.3%) 2.7% BNAF = Budget Neutrality Adjustment Factor. Comparison is to FY 2011 data with a 25 percent BNAF reduction. * OSCAR data as of January 6, 2011 for hospices with claims filed in FY 2010. ** In previous years, there was also a category labeled ‘‘Other’’; these were Other Government hospices, and have been combined with the ‘‘Government’’ category. † The 3.0 percent inpatient hospital market basket update for FY 2012 does not reflect the provision in the Affordable Care Act which reduces the inpatient hospital market basket update by 0.1 percentage point since that reduction does not apply to hospices. Region Key: New England = Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont; Middle Atlantic = Pennsylvania, New Jersey, New York; South Atlantic = Delaware, District of Columbia, Florida, Georgia, Maryland, North Carolina, South Carolina, Virginia, West Virginia; East North Central = Illinois, Indiana, Michigan, Ohio, Wisconsin; East South Central = Alabama, Kentucky, Mississippi, Tennessee; West North Central = Iowa, Kansas, Minnesota, Missouri, Nebraska, North Dakota, South Dakota; West South Central = Arkansas, Louisiana, Oklahoma, Texas; Mountain = Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, Utah, Wyoming; Pacific = Alaska, California, Hawaii, Oregon, Washington; Outlying = Guam, Puerto Rico, Virgin Islands.

Table 1 shows the results of our payments from FY 2011 to FY 2012 due down by urban and rural hospices. The analysis. In column 1, we indicate the to the combined effects of using the next grouping shows the impact on number of hospices included in our updated wage data and reducing the hospices based on the size of the analysis as of January 6, 2011 which had BNAF by an additional 15 percent. hospice’s program. We determined that also filed claims in FY 2010. In column Column 5 shows the percentage change the majority of hospice payments are 2, we indicate the number of routine in estimated hospice payments from FY made at the routine home care rate. home care days that were included in 2011 to FY 2012 due to the combined Therefore, we based the size of each our analysis, although the analysis was effects of using updated wage data, an individual hospice’s program on the performed on all types of hospice care. additional 15 percent BNAF reduction, number of routine home care days Columns 3, 4, and 5 compare FY 2012 and a 3.0 percent inpatient hospital provided in FY 2009. The next grouping estimated payments with those market basket update. shows the impact on hospices by type estimated for FY 2011. The estimated Table 1 also categorizes hospices by of ownership. The final grouping shows FY 2011 payments incorporate a BNAF various geographic and hospice the impact on hospices defined by which has been reduced by 25 percent. characteristics. The first row of data whether they are provider-based or Column 3 shows the percentage change displays the aggregate result of the freestanding. in estimated Medicare payments for FY impact for all Medicare-certified As indicated in Table 1, there are 2012 due to the effects of the updated hospices. The second and third rows of 3,552 hospices. Approximately 47 wage data only, compared with the table categorize hospices according percent of Medicare-certified hospices estimated FY 2011 payments. The effect to their geographic location (urban and are identified as voluntary (non-profit) of the updated wage data can vary from rural). Our analysis indicated that there or government agencies. Because the region to region depending on the are 2,494 hospices located in urban National Hospice and Palliative Care fluctuations in the wage index values of areas and 1,058 hospices located in Organization estimates that the pre-floor, pre-reclassified hospital rural areas. The next two row groupings approximately 83 percent of hospice wage index. Column 4 shows the in the table indicate the number of patients in 2009 were Medicare percentage change in estimated hospice hospices by census region, also broken beneficiaries, we have not considered

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47329

other sources of revenue in this days. Most hospices are medium-sized Column 3 shows estimated analysis. followed by large hospices. Hospices are percentages for rural hospices. Rural As stated previously, the following almost equal in numbers by ownership hospices are estimated to see a decrease discussions are limited to demonstrating with 1,657 designated as non-profit or in payments in five regions, ranging trends rather than projected dollars. We government hospices and 1,895 as from 0.8 percent in the South Atlantic used the pre-floor, pre-reclassified proprietary. The vast majority of to 0.1 percent in the New England hospital wage indexes as well as the hospices are freestanding. region. Rural hospices can anticipate an most complete claims data available (FY increase in payments in four regions, b. Hospice Size 2010) in developing the impact analysis. ranging from 0.1 percent in the East The FY 2012 payment rates will be Under the Medicare hospice benefit, South Central region to 0.8 percent in adjusted to reflect the full inpatient hospices can provide four different the West South Central region. There is hospital market basket update, as levels of care days. The majority of the no anticipated change in payments for required by section 1814(i)(1)(C)(ii)(VII) days provided by a hospice are routine Outlying regions due to FY 2012 Wage of the Act. As previously noted, we home care (RHC) days, representing Index change. publish these rates through about 97 percent of the services Column 4 shows the combined effect administrative instructions rather than provided by a hospice. Therefore, the of the updated wage data and the in a proposed rule. The FY 2012 final number of RHC days can be used as a additional 15 percent BNAF reduction inpatient hospital market basket update proxy for the size of the hospice, that is, on estimated payments, as compared to is 3.0 percent. This 3.0 percent does not the more days of care provided, the the FY 2011 estimated payments using reflect the provision in the Affordable larger the hospice. As discussed in the a BNAF with a 25 percent reduction. Care Act which reduces the inpatient August 4, 2005 final rule, we currently Overall, urban hospices are anticipated hospital market basket update by 0.1 use three size designations to present to experience a 0.5 percent decrease in percentage point since that reduction the impact analyses. The three payments while rural hospices are does not apply to hospices. Since the categories are: (1) Small agencies having anticipated to experience a 0.6 percent inclusion of the effect of an inpatient 0 to 3,499 RHC days; (2) medium decrease in payments. Nine regions in hospital market basket increase provides agencies having 3,500 to 19,999 RHC urban areas are estimated to see a more complete picture of projected days; and (3) large agencies having decreases in payments, ranging from 1.3 total hospice payments for FY 2012, the 20,000 or more RHC days. The FY 2012 percent in the New England region to last column of Table 1 shows the updated wage data without any BNAF 0.3 percent in the South Atlantic region. combined impacts of the updated wage reduction are anticipated to decrease Payments for the Pacific region are data, the additional 15 percent BNAF payments to medium hospices by 0.1 estimated to be relatively stable. reduction, and the 3.0 percent inpatient percent and increase payments to large Rural hospices are estimated to hospital market basket update. As hospices by 0.1 percent; small hospices experience a decrease in payments in discussed in the FY 2006 hospice wage are anticipated to be unchanged eight regions, ranging from 1.3 percent index final rule (70 FR 45129), hospice (column 3); the updated wage data and in the Pacific region to 0.1 percent in agencies may use multiple hospice wage the additional 15 percent BNAF the East South Central and Mountain index values to compute their payments reduction (for a total BNAF reduction of regions. While the estimated effect of based on potentially different 40 percent) are anticipated to decrease the additional 15 percent BNAF geographic locations. Before January 1, estimated payments to small and large reduction decreased payments to rural 2008, the location of the beneficiary was hospices by 0.5 percent, and to medium hospices in the West South Central used to determine the CBSA for routine hospices by 0.6 percent (column 4); and region, hospices in this region are still and continuous home care, and the finally, the updated wage data, the anticipated to experience an estimated location of the hospice agency was used additional 15 percent BNAF reduction increase in payments of 0.3 percent due to determine the CBSA for respite and (for a total BNAF reduction of 40 to the net effect of the reduced BNAF general inpatient care. Beginning percent), and the final 3.0 percent and the updated wage index data. January 1, 2008, the hospice wage index inpatient hospital market basket update Payments to rural outlying regions are CBSA utilized is based on the location are projected to increase estimated anticipated to remain relatively stable. of the site of service. As the location of payments by 2.4 percent for small and Column 5 shows the combined effects the beneficiary’s home and the location medium hospices, and by 2.5 percent of the updated wage data, the additional of the hospice may vary, there will still for large hospices (column 5). 15 percent BNAF reduction, and the final 3.0 percent inpatient hospital be variability in geographic location for c. Geographic Location an individual hospice. We anticipate market basket update on estimated FY that the CBSA of the various sites of Column 3 of Table 1 shows updated 2012 payments as compared to the service will usually correspond with the wage data without the BNAF reduction. estimated FY 2011 payments. Note that CBSA of the geographic location of the Urban hospices are anticipated to the FY 2011 payments had a 25 percent hospice, and thus we will continue to experience an increase of 0.1 percent, BNAF reduction applied to them. use the location of the hospice for our while rural hospices are anticipated to Overall, urban hospices are anticipated analyses of the impact of the changes to experience a decrease of 0.2 percent. to experience a 2.5 percent increase in the hospice wage index in this rule. For Urban hospices can anticipate a payments and rural hospices are this analysis, we use payments to the decrease in payments in five regions; anticipated to experience a 2.3 percent hospice in the aggregate based on the ranging from 0.7 percent in the New increase in payments. Urban hospices location of the hospice. England region to 0.1 percent in the East are anticipated to experience an The impact of hospice wage index South Central region. Payments in the increase in estimated payments in every changes has been analyzed according to Mountain region are estimated to stay region, ranging from 1.7 percent in the the type of hospice, geographic location, stable. Urban hospices are anticipated to New England region to 3.0 percent in type of ownership, hospice base, and see an increase in payments in four the Pacific region. Rural hospices in size. Our analysis shows that most regions, ranging from 0.1 percent in the every region are estimated to see an hospices are in urban areas and provide West South Central region to 0.6 percent increase in payments, ranging from 1.6 the vast majority of routine home care in the Pacific region. percent in the Pacific region to 3.3

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47330 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

percent in the West South Central comparing FY 2012 to FY 2011. TABLE 2—ACCOUNTING STATEMENT: region. Estimated payments are anticipated to CLASSIFICATION OF ESTIMATED EX- d. Type of Ownership increase for all hospices, ranging from PENDITURES, FROM FY 2011 TO FY 2.3 percent for hospital based hospices Column 3 demonstrates the effect of 2012—Continued to 2.7 percent for skilled nursing facility [In $millions] the updated wage data on FY 2012 based hospices. estimated payments, versus FY 2011 estimated payments. We anticipate that f. Effects on Other Providers Category Transfers using the updated wage data would This proposed rule only affects From Whom to Whom Federal Government decrease estimated payments to to Hospices. government hospices by 0.1 percent and Medicare hospices, and therefore has no payments to voluntary (non-profit) effect on other provider types. * The $80 million estimated reduction in hospices would remain relatively transfers includes the additional 15 percent re- g. Effects on the Medicare and Medicaid duction in the BNAF and the updated wage unchanged. We estimate an increase in Programs data. It does not include the final hospital mar- payments for proprietary (for-profit) ket basket update, which is 3.0 percent for FY hospices of 0.1 percent. This proposed rule only affects 2012. This final 3.0 percent does not reflect Column 4 demonstrates the combined the provision in the Affordable Care Act which Medicare hospices, and therefore has no reduced the hospital market basket update by effects of the updated wage data and of effect on Medicaid programs. As 0.1 percentage point since that reduction does the additional 15 percent BNAF described previously, estimated not apply to hospices. reduction. Estimated payments to Medicare payments to hospices in FY voluntary (non-profit) hospices are i. Conclusion 2012 are anticipated to increase by $10 anticipated to decrease by 0.5 percent, In conclusion, the overall effect of this million due to the update in the wage while government hospices are final rule is estimated to be the $80 anticipated to experience a decrease of index data, and to decrease by $90 million reduction in Federal payments 0.7 percent. Estimated payments to million due to the additional 15 percent due to the wage index changes proprietary (for-profit) hospices are reduction in the BNAF (for a of total 40 (including the additional 15 percent anticipated to decrease by 0.4 percent. percent reduction in the BNAF). reduction in the BNAF). Furthermore, Column 5 shows the combined effects However, the final market basket update the Secretary has determined that this of the updated wage data, the additional of 3.0 percent is anticipated to increase will not have a significant impact on a 15 percent BNAF reduction (for a total Medicare payments by $420 million. substantial number of small entities, or BNAF reduction of 40 percent), and a Therefore, the total effect on Medicare have a significant effect relative to final 3.0 percent inpatient hospital hospice payments is estimated to be a section 1102(b) of the Act. market basket update on estimated $340 million increase. Note that the B. Regulatory Flexibility Act Analysis payments, comparing FY 2012 to FY final market basket update and 2011 (using a BNAF with a 25 percent associated FY 2012 payment rates is The RFA requires agencies to analyze reduction). Estimated FY 2012 officially communicated this summer options for regulatory relief of small businesses if a rule has a significant payments are anticipated to increase 2.5 through an administrative instruction. percent for voluntary (non-profit), 2.3 impact on a substantial number of small percent for government hospices, and h. Accounting Statement entities. For purposes of the RFA, we 2.6 percent for proprietary (for-profit) estimate that almost all hospices are As required by OMB Circular A–4 hospices. small entities as that term is used in the (available at http:// RFA. The great majority of hospitals and e. Hospice Base www.whitehouse.gov/omb/circulars/ most other health care providers and Column 3 demonstrates the effect of a004/a-4.pdf), in Table 2 below, we suppliers are small entities by meeting using the updated wage data, comparing have prepared an accounting statement the Small Business Administration estimated payments for FY 2012 to FY showing the classification of the (SBA) definition of a small business 2011. Estimated payments are expenditures associated with this final (having revenues of less than $7.0 anticipated to increase by 0.1 percent rule. This table provides our best million to $34.5 million in any 1 year). for freestanding hospices and home estimate of the decrease in Medicare While the SBA does not define a size health agency based hospices, and 0.3 payments under the hospice benefit as threshold in terms of annual revenues percent for hospices based out of a a result of the changes presented in this for hospices, it does define one for home skilled nursing facility. Payments to proposed rule using data for 3,552 health agencies ($13.5 million; see hospital based hospices are estimated to hospices in our database. http://ecfr.gpoaccess.gov/cgi/t/text/text- decrease by 0.1 percent. idx?c=ecfr&sid=2465b064ba6965cc1 Column 4 shows the combined effects TABLE 2—ACCOUNTING STATEMENT: fbd2eae60854b11&rgn=div8& view=text& of the updated wage data and reducing CLASSIFICATION OF ESTIMATED EX- the BNAF by an additional 15 percent, node=13:1.0.1.1.16.1.266.9&idno=13). PENDITURES, FROM FY 2011 TO FY comparing estimated payments for FY For the purposes of this final rule, 2012 to FY 2011. All hospice facilities 2012 because the hospice benefit is a home- are anticipated to experience decrease [In $millions] based benefit, we are applying the SBA in payments ranging from 0.3 percent definition of ‘‘small’’ for home health for skilled nursing facility based Category Transfers agencies to hospices; we will use this definition of ‘‘small’’ in determining if hospices, to 0.6 percent for hospital ¥ based hospices. Annualized Monetized $ 80.* this final rule has a significant impact Column 5 shows the combined effects Transfers. on a substantial number of small entities of the updated wage data, the additional (for example, hospices). Using CY 2009 15 percent BNAF reduction, and a final Medicare hospice data from the Health 3.0 percent inpatient hospital market Care Information System (HCIS), we basket update on estimated payments, estimate that 96 percent of hospices

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47331

have Medicare revenues below $13.5 hospice patients are non-Medicare. Authority: Secs 1102 and 1871 of the million and therefore are considered Therefore, the Secretary has determined Social Security Act (42 U.S.C. 1302 and small entities. that this final rule would not create a 1395hh). The effects of this rule on hospices are significant economic impact on a Subpart B—Eligibility, Election and shown in Table 1. Overall, Medicare substantial number of small entities. Duration of Benefits payments to all hospices would In addition, section 1102(b) of the Act decrease by an estimated 0.5 percent requires us to prepare a regulatory ■ over last year’s payments in response to 2. In § 418.22, paragraphs (a)(4) and impact analysis if a rule may have a (b)(4) are revised to read as follows: the policies that we are finalizing in this significant impact on the operations of final rule, reflecting the combined a substantial number of small rural § 418.22 Certification of terminal illness. effects of the updated wage data and the hospitals. This analysis must conform to (a) * * * additional 15 percent reduction in the the provisions of section 604 of the BNAF. The combined effects of the RFA. For purposes of section 1102(b) of (4) Face-to-face encounter. As of updated wage data and additional 15 the Act, we define a small rural hospital January 1, 2011, a hospice physician or percent reduction in the BNAF on small as a hospital that is located outside of hospice nurse practitioner must have a and large sized hospices (as defined by a metropolitan statistical area and has face-to-face encounter with each routine home care days rather than by fewer than 100 beds. This final rule only hospice patient whose total stay across the SBA definition), is an estimated affects hospices. Therefore, the all hospices is anticipated to reach the reduction of 0.5 percent. Medium sized Secretary has determined that this final 3rd benefit period. The face-to-face hospices are anticipated to experience rule would not have a significant impact encounter must occur prior to, but no an estimated reduction in payments of on the operations of a substantial more than 30 calendar days prior to, the 0.6 percent as a result of the updated number of small rural hospitals. 3rd benefit period recertification, and wage data and the additional 15 percent every benefit period recertification reduction in the BNAF. Furthermore, C. Unfunded Mandates Reform Act thereafter, to gather clinical findings to when examining the distributional Analysis determine continued eligibility for effects of the updated wage data Section 202 of the Unfunded hospice care. combined with the additional 15 Mandates Reform Act of 1995 also (b) * * * percent BNAF reduction, the highest requires that agencies assess anticipated (4) The physician or nurse estimated reductions in payments are practitioner who performs the face-to- experienced by the urban New England costs and benefits before issuing any face encounter with the patient and rural Pacific areas with each rule whose mandates require spending reflecting a 1.3 percent reduction. in any 1 year of $100 million in 1995 described in paragraph (a)(4) of this HHS’s practice in interpreting the dollars, updated annually for inflation. section must attest in writing that he or RFA is to consider effects economically In 2011, that threshold is approximately she had a face-to-face encounter with ‘‘significant’’ only if they reach a $136 million. This final rule is not the patient, including the date of that threshold of 3 to 5 percent or more of anticipated to have an effect on State, visit. The attestation of the nurse total revenue or total costs. As noted local, or tribal governments, in the practitioner or a non-certifying hospice above, the combined effect of only the aggregate, or on the private sector of physician shall state that the clinical updated wage data and the additional $136 million or more. findings of that visit were provided to the certifying physician for use in 15 percent reduced BNAF (for a total VII. Federalism Analysis BNAF reduction of 40 percent) for all determining continued eligibility for hospices is an estimated reduction of Executive Order 13132 establishes hospice care. 0.5 percent. Furthermore, since HHS’s certain requirements that an agency * * * * * practice in determining ‘‘significant must meet when it promulgates a economic impact’’ considers either total proposed rule (and subsequent final Subpart F—Covered Services revenue or total costs, it is necessary for rule) that imposes substantial direct total hospice revenues to include the requirement costs on State and local ■ 3. Section 418.202 (g) is revised to effect of the market basket update of 3.0 governments, preempts State law, or read: otherwise has Federalism implications. percent. As a result, we consider the § 418.202 Covered services. combined effect of the updated wage We have reviewed this final rule under data, the additional 15 percent BNAF the threshold criteria of EO 13132, * * * * * reduction, and the final 3.0 percent FY Federalism, and have determined that it (g) Home health or hospice aide 2012 inpatient hospital market basket would not have an impact on the rights, services furnished by qualified aides as update inclusive of the overall impact, roles, and responsibilities of State, local, designated in § 418.76 and homemaker thereby reflecting an aggregate increase or tribal governments. services. Home health aides (also known as hospice aides) may provide personal in estimated hospice payments of 2.5 List of Subjects in 42 CFR Part 418 percent for FY 2012. For small and care services as defined in § 409.45(b) of medium hospices (as defined by routine Health facilities, Hospice care, this chapter. Aides may perform home care days), the estimated effects Medicare, Reporting and recordkeeping household services to maintain a safe on revenue when accounting for the requirements. and sanitary environment in areas of the updated wage data, the additional 15 For the reasons set forth in the home used by the patient, such as percent BNAF reduction, and the final preamble, the Centers for Medicare & changing bed linens or light cleaning inpatient hospital market basket update Medicaid Services amends 42 CFR and laundering essential to the comfort reflect increases in payments of 2.4 chapter IV as set forth below: and cleanliness of the patient. Aide percent. Overall average hospice services must be provided under the revenue effects will be slightly less than PART 418—HOSPICE CARE general supervision of a registered these estimates since according the nurse. Homemaker services may include National Hospice and Palliative Care ■ 1. The authority citation for part 418 assistance in maintenance of a safe and Organization, about 17 percent of continues to read as follows: healthy environment and services to

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 47332 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

enable the individual to carry out the multiplying the adjusted cap amount eligible to elect the streamlined treatment plan. determined in paragraph (a) of this methodology, and must continue to * * * * * section by the number of Medicare have the patient-by-patient proportional beneficiaries as described in paragraphs methodology used to determine the Subpart G—Payment for Hospice Care (c)(1) and (2) of this section. For the number of Medicare beneficiaries in a purposes of the patient-by-patient given cap year. ■ 4. In § 418.309, the section heading, proportional methodology— introductory text and paragraph (b) are (ii) A hospice that is eligible to make (1) A hospice includes in its number a one-time election to have its cap revised, and new paragraphs (c) and (d) of Medicare beneficiaries only that calculated using the streamlined are added, to read: fraction which represents the portion of methodology must make that election a patient’s total days of care in all § 418.309 Hospice aggregate cap. no later than 60 days after receipt of its hospices and all years that was spent in A hospice’s aggregate cap is 2012 cap determination. A hospice’s that hospice in that cap year, using the calculated by multiplying the adjusted election to have its cap calculated using best data available at the time of the cap amount (determined in paragraph the streamlined methodology would calculation. The total number of (a) of this section) by the number of remain in effect unless: Medicare beneficiaries for a given Medicare beneficiaries, as determined hospice’s cap year is determined by (A) The hospice subsequently submits by one of two methodologies for summing the whole or fractional share a written election to change the determining the number of Medicare of each Medicare beneficiary that methodology used in its cap beneficiaries for a given cap year received hospice care during the cap determination to the patient-by-patient described in paragraphs (b) and (c) of year, from that hospice. proportional methodology; or this section: (2) The aggregate cap calculation for (B) The hospice appeals the * * * * * a given cap year may be adjusted after (b) Streamlined methodology defined. streamlined methodology used to the calculation for that year based on determine the number of Medicare A hospice’s aggregate cap is calculated updated data. by multiplying the adjusted cap amount beneficiaries used in the aggregate cap (d) Application of methodologies. (1) calculation. determined in paragraph (a) of this For cap years ending October 31, 2011 section by the number of Medicare and for prior cap years, a hospice’s (3) If a hospice that elected to have its beneficiaries as determined in aggregate cap is calculated using the aggregate cap calculated using the paragraphs (b)(1) and (2) of this section. streamlined methodology described in streamlined methodology under For purposes of the streamlined paragraph (b) of this section, subject to paragraph (d)(2)(ii) of this section methodology calculation— the following: subsequently elects the patient-by- (1) In the case in which a beneficiary (i) A hospice that has not received a patient proportional methodology or received care from only one hospice, the cap determination for a cap year ending appeals the streamlined methodology, hospice includes in its number of on or before October 31, 2011 as of under paragraph (d)(2)(ii)(A) or (B) of Medicare beneficiaries those Medicare October 1, 2011, may elect to have its this section, the hospice’s aggregate cap beneficiaries who have not previously final cap determination for such cap determination for that cap year and all been included in the calculation of any years calculated using the patient-by- subsequent cap years is to be calculated hospice cap, and who have filed an patient proportional methodology using the patient-by-patient election to receive hospice care in described in paragraph (c) of this proportional methodology. As such, accordance with § 418.24 during the section; or past cap year determinations may be period beginning on September 28 (34 (ii) A hospice that has filed a timely adjusted to prevent the over-counting of days before the beginning of the cap appeal regarding the methodology used beneficiaries, subject to existing year) and ending on September 27 (35 for determining the number of Medicare reopening regulations. days before the end of the cap year), beneficiaries in its cap calculation for (Catalog of Federal Domestic Assistance using the best data available at the time any cap year is deemed to have elected Program No. 93.773, Medicare—Hospital of the calculation. that its cap determination for the Insurance; and Program No. 93.774, (2) In the case in which a beneficiary challenged year, and all subsequent cap Medicare—Supplementary Medical received care from more than one years, be calculated using the patient- Insurance Program) hospice, each hospice includes in its by-patient proportional methodology Dated: July 21, 2011. number of Medicare beneficiaries only described in paragraph (c) of this Donald M. Berwick, that fraction which represents the section. Administrator, Centers for Medicare & portion of a patient’s total days of care (2) For cap years ending October 31, Medicaid Services. 2012, and all subsequent cap years, a in all hospices and all years that was Approved: July 27, 2011. spent in that hospice in that cap year, hospice’s aggregate cap is calculated using the best data available at the time using the patient-by-patient Kathleen Sebelius, of the calculation. The aggregate cap proportional methodology described in Secretary, Department of Health and Human calculation for a given cap year may be paragraph (c) of this section, subject to Services. the following: adjusted after the calculation for that Note: The following Addendums will not year based on updated data. (i) A hospice that has had its cap be published in the Code of Federal (c) Patient-by-patient proportional calculated using the patient-by-patient Regulations. methodology defined. A hospice’s proportional methodology for any cap aggregate cap is calculated by year(s) prior to the 2012 cap year is not

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47333

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.000 47334 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.001 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47335

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.002 47336 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.003 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47337

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.004 47338 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.005 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47339

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.006 47340 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.007 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47341

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.008 47342 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.009 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47343

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.010 47344 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.011 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47345

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00045 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.012 47346 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00046 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.013 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47347

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00047 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.014 47348 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00048 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.015 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47349

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00049 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.016 47350 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00050 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.017 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations 47351

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00051 Fmt 4701 Sfmt 4725 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.018 47352 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Rules and Regulations

[FR Doc. 2011–19488 Filed 7–29–11; 4:15 pm] BILLING CODE 4920–01–P

VerDate Mar<15>2010 17:43 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00052 Fmt 4701 Sfmt 9990 E:\FR\FM\04AUR2.SGM 04AUR2 mstockstill on DSK4VPTVN1PROD with RULES2 ER04AU11.019 Vol. 76 Thursday, No. 150 August 4, 2011

Part III

Department of Agriculture

Forest Service Final Directives for Forest Service Wind Energy Special Use Authorizations, Forest Service Manual 2720, Forest Service Handbooks 2609.13 and 2709.11; Notice

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47354 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

DEPARTMENT OF AGRICULTURE at 36 CFR part 251, subpart B. Wind comment period was extended an energy proposals and applications are additional 60 days to January 23, 2008. Forest Service currently processed in accordance with The Forest Service received 5,630 RIN 0596–AC61 36 CFR 251.54 and direction in Forest comments on the proposed directives. Service Manual (FSM) 2726 and Forest Approximately 5,500 of the comments Final Directives for Forest Service Service Handbook (FSH) 2709.11, were form letters, while the remaining Wind Energy Special Use governing administration of special letters consisted of original comments or Authorizations, Forest Service Manual uses. form letters with additional comments. 2720, Forest Service Handbooks The final directives add a new chapter Close to 50 comments were received 2609.13 and 2709.11 70, ‘‘Wind Energy Uses,’’ to the Special which could not be specifically tied to Uses Handbook, FSH 2709.11, and a any particular topic or section of the AGENCY: Forest Service, USDA. new chapter 80, ‘‘Monitoring at Wind proposed directives, but rather ACTION: Notice of issuance of final Energy Sites,’’ to the Wildlife expressed general opposition or general directives; response to public comment. Monitoring Handbook, FSH 2609.13. support for the proposed directives. The These new chapters supplement, rather Agency considered all timely received SUMMARY: The Forest Service is than supplant or duplicate, existing comments in development of the final amending its internal directives for special use and wildlife directives. In directives. special use authorizations and wildlife particular, new chapter 70 provides monitoring. The amendments provide direction on siting, processing proposals Response to General Comments direction and guidance specific to wind and applications, and issuing permits Comment. One respondent stated that energy projects on National Forest for wind energy uses. New chapter 80 the proposed directives fail to consider System (NFS) lands. These amendments provides specific guidance on wildlife the requirements of the Federal Land supplement, rather than supplant or monitoring at wind energy sites before, Policy and Management Act (FLPMA); duplicate, existing special use and during, and after construction. The National Forest Management Act wildlife directives to address issues direction in chapter 70 is similar to the (NFMA); Executive Order (E.O.) 13212, specifically associated with siting, procedures established by the U.S. which states increased production and processing proposals and applications, Department of the Interior, Bureau of transmission of energy in a safe and and issuing special use permits for wind Land Management (BLM), for managing environmentally sound manner is energy uses. The directives ensure wind energy uses on public lands. In essential; and E.O. 13123, which consistent and adequate analyses for addition, the directives make charges each agency to strive to expand evaluating wind energy proposals and corresponding revisions to FSM 2726, the use of renewable energy in its applications and issuing wind energy ‘‘Energy Generation and Transmission,’’ facilities. Another respondent stated permits. Public comment was and FSH 2709.11, chapter 40, ‘‘Special that wind energy projects should be considered in development of the final Uses Administration.’’ treated the same as any other proposed directives, and a response to comments use of Federal lands, that is, they should is included in this notice. Need for Wind Energy Directives be subject to applicable law, including DATES: Effective Date: These final The emphasis on development of FLPMA, NFMA, the Endangered directives are effective August 4, 2011. alternative energy sources in the Energy Species Act (ESA), the Migratory Bird ADDRESSES: The record for these final Policy Act of 2005 and increasing Treaty Act (MBTA), the National directives is available for inspection at industry interest in development of Historic Preservation Act (NHPA), and the office of the Director, Lands Staff, wind energy facilities on NFS lands thorough programmatic and site-specific USDA, Forest Service, 4th Floor South, have prompted the Forest Service to analysis and public participation under Sidney R. Yates Federal Building, 1400 issue directives that address issues the National Environmental Policy Act Independence Avenue, SW., specifically associated with siting wind (NEPA). Washington, DC, during regular energy uses, processing wind energy Response. Wind energy proposals, business hours (8:30 a.m. to 4 p.m.), proposals and applications, and issuing applications, and authorizations are Monday through Friday, except wind energy permits. subject to all applicable Federal law, holidays. Those wishing to inspect these The final wind energy directives including NEPA, the ESA, the MBTA, documents are encouraged to call ahead provide a consistent framework and and the NHPA. Wind energy at (202) 205–1256 to facilitate access to terminology for making decisions authorizations will be issued under the building. regarding proposals and applications for FLPMA, consistent with the applicable FOR FURTHER INFORMATION CONTACT: Paul wind energy uses. Specifically, the land management plan, which is Johnson, Minerals and Geology directives provide guidance on siting developed pursuant to NFMA. The Management, (703) 605–4793, or Julett wind energy turbines, evaluating a Agency believes that the proposed and Denton, Lands Staff, (202) 205–1256. variety of resource interests, and final directives are consistent with E.O. addressing issues specifically associated 13212, as they facilitate authorization of SUPPLEMENTARY INFORMATION: with wind energy in the special use wind energy projects in a safe and 1. Background and Need for the Final permitting process. These issues include environmentally sound manner. The Directives potential effects on scenery, national Agency does not believe that E.O. 13123 security, significant cultural resources, applies to these directives, as it Background and wildlife, especially migratory birds addresses the use of energy in federally The Forest Service is responsible for and bats. owned facilities. managing approximately 193 million Comment. Several respondents acres of NFS lands. To date, the Forest 2. Public Comments on the Proposed believed that the proposed directives Service has issued over 74,000 special Directives and Agency Responses failed to take into account the use authorizations on NFS lands The proposed directives were requirements of the NHPA. covering more than 180 types of uses. published in the Federal Register on Response. The Agency agrees and has Wind energy uses are governed by the September 24, 2007, (72 FR 54233), with corrected this omission in the final Forest Service’s special use regulations a 60-day public comment period. The directives by adding direction regarding

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47355

the NHPA to sections 70.5, energy program. Rather, NEPA requires and the BMPs and mitigation measures ‘‘Definitions,’’ and 72.21e, ‘‘Historic assessment of an agency’s proposed contained in the policy. BLM’s wind Properties and Cultural actions and the Forest Service believes energy policy was one of the sources Considerations.’’ that wind energy projects should be used to develop the Forest Service’s Comment. One respondent stated that decided on a site-specific basis for the wind energy directives. the impacts of the proposed directives reasons stated above. The level of The Forest Service’s wind energy on treaty rights and trust resources must analysis required will vary depending directives closely track BLM’s wind be considered and analyzed under both on site-specific circumstances. After a energy policy. Some provisions in the NEPA and the NHPA. wind energy proposal passes screening Forest Service’s directives are worded Response. Each analysis conducted and is accepted as an application, the differently to be consistent with Forest for a wind energy facility will adhere to Agency will analyze its effects Service procedures. Some provisions, applicable Agency NEPA procedures consistent with NEPA. In preparing an such as section 75.12 regarding the need and applicable law, including treaty and EA or EIS, the Agency examines the to ascertain the existence of competitive reserved rights and the NHPA. cumulative effects of the proposal interest, are required by Forest Service Comment. Several respondents (including past, present, and reasonably regulations (36 CFR 51.58(c)(3)(ii)). suggested that the Agency revise the foreseeable future actions) on the Nothing in the final directives phrase ‘‘minimize damage to scenic and affected environment, per 36 CFR precludes the authorized officer from aesthetic values’’ in 36 CFR part 254, 220.4(f). using additional information contained Subpart B, to state that projects must be Comment. Multiple respondents in BLM’s wind energy policy. To clarify designed to meet established scenic noted that the proposed directives this intent, the Agency has added BLM’s integrity objectives. minimally reference best management 2005 wind energy policy to the list of Response. The Agency has not practices (BMPs) and recommended that references in section 70.6 in the final proposed any revisions to the the Forest Service develop BMPs and directives. regulations at 36 CFR part 254, subpart standards as part of developing a PEIS The Forest Service does not believe B. Therefore, this comment is beyond on wind energy development. These that it would be efficient or effective for the scope of these directives and was respondents recommended that the wind energy development on NFS lands not considered in development of the Forest Service review BLM’s Wind to develop programmatic BMPs and final directives. Energy Development Program and standards that would require amendments to Forest Service land Decisionmaking Process and Methods Associated Land Use Plan Amendments, which established policies and BMPs management plans. Comment. Several respondents for administration of wind energy Comment. Several respondents stated recommended that the Forest Service projects and minimum requirements for that a programmatic EIS for wind energy prepare a programmatic environmental mitigation measures. These respondents development is essential to assess impact statement (PEIS) for wind energy stated that Forest Service review of this economic effects on community tourism development on NFS lands. These document would foster a uniform considerations alone. respondents noted that pending approach to renewable energy Response. The Forest Service has completion of the PEIS, individual production on Federal lands. This chosen a different approach. The Forest projects could proceed based on project- respondent further stated that additional Service recognizes the potential value of specific environmental analysis, such as stipulations could be developed as a programmatic approach for planning an environmental assessment (EA) or needed to address site-specific concerns purposes, however the opportunity for Environmental Impact Statement (EIS). on the basis of the relevant land utility scale renewable energy These respondents further stated that management plan, other mitigation development projects on the national once the PEIS is completed, an EA guidance, and mitigation measures forest system lands is fairly limited. The would be appropriate for most wind identified in the PEIS. Agency believes it is more cost efficient energy projects on NFS lands. These One respondent stated that the and effective to look at each proposed respondents believed that in not proposed directives have little in site individually and assess the preparing a PEIS, the Forest Service has common with BLM’s wind energy potential effects at that particular site not complied with NEPA because the policy, despite assertions that the Forest and, if appropriate, address the Agency has not analyzed or disclosed Service’s directives would closely track socioeconomic impacts as part of the the cumulative effects of current Forest BLM’s policy, and that BLM’s policy NEPA process. Once a wind energy Service wind energy proposals. should be included in the list of application has been accepted, the Response. The Forest Service has references in FSH 2709.11, section 70.6. Agency will analyze the effects of the chosen not to prepare a PEIS for wind Another respondent stated that the proposed use in accordance with the energy development on NFS lands. proposed directives, like BLM’s PEIS, Agency’s NEPA procedures at 36 CFR Given the diversity of NFS lands and should require development of detailed part 220 and FSH 1909.15. their uses, the Forest Service believes it BMPs for monitoring and site selection To be useful, the NEPA document will be more efficient and effective to on a State or regional level as soon as would need to provide a level of detail look at each proposed wind energy site possible. Another respondent suggested that would be the equivalent of a site- and assess the potential effects of the Forest Service-wide standards and specific NEPA document. A proposed use as it relates to that site. review for all wind energy projects, programmatic EIS does not provide this The Agency does not believe the including meteorological towers (METs) level of site specific detail. preparation of a programmatic NEPA and wind energy facilities, on NFS Comment. Several respondents noted document will save time or inform lands. This respondent further stated that significant benefits from a decisionmakers, since it will still be that the national standards should be coordinated permit process would be necessary to analyze the site-specific fine-tuned to site-specific conditions, realized if each Regional Forester would environmental effects at each project such as wildlife habitat, topography, appoint a single person or small team to site. and climate. coordinate wind energy projects for all NEPA does not require preparation of Response. The Agency is familiar regions and process all wind energy a PEIS for the Forest Service’s wind with BLM’s 2005 wind energy policy project applications. These respondents

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47356 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

stated that having a single point of Advisory Committee will be used to Decisionmaking Philosophy contact between the Forest Service and revise the 2003 U.S. Fish and Wildlife Comment. One respondent suggested the wind industry would help ensure Service (FWS)’s Interim Guidelines to that the Forest Service identify wind that best practices are used and applied Avoid and Minimize Wildlife Impacts energy corridors or zones during consistently across the NFS. from Wind Turbines. However, the development of land management plans. Response. For large wind energy Forest Service believes it would not be This respondent believed that this projects, the Agency will designate a appropriate to limit the siting of wind approach would allow for public single point of contact to facilitate turbines to one set of guidelines which participation in wind energy coordination. The Agency does not specifically address only wildlife development on NFS lands at the forest- believe it is appropriate to commit to impacts from wind turbines. In wide rather than only at the project regional processing of wind energy addition, the final directives do not level, as well as for assessment of the applications, since the regional offices preclude the Forest Service from using cumulative impacts of multiple wind may not have sufficient staff for that any newly developed Federal purpose. In addition, since the energy projects on a given national guidelines, recommendations, or other supporting environmental analysis for forest. relevant scientific publications wind energy applications must be site- Response. Land management plans regarding wind energy projects as they specific, it may not make sense to may be amended or revised as consolidate processing of proposals and become available. appropriate to address opportunities for applications for wind energy projects. Comment. One respondent wind energy development. In addition, Comment. One respondent stated that commented that under the ESA and E.O. the authorized officer may utilize the the approach to wind energy projects in 13186, the Forest Service has an energy right-of-way corridors on Federal the proposed directives was reactive, obligation to consult with FWS and the lands in 11 western states identified rather than proactive, in that the Agency National Marine Fisheries Service under Section 368 of the Energy Policy would be merely responding case-by- (NMFS) and prepare a biological Act of 2005. case to each application submitted by assessment prior to issuance of any The Agency does not believe it is appropriate to require identification of commercial wind energy developers. wind energy permits. This respondent recommended that the wind energy corridors in land Another respondent commented that Agency develop national siting criteria management plans, as it may be more under Section 7 of the ESA, special use for wind energy projects and an efficient and effective to assess potential inventory of areas in the NFS that may authorizations must be consistent with effects only at the project level, given be suitable for wind energy projects. the applicable land management plan the variety of uses of NFS lands. This respondent believed that this and must be issued only after the Forest Comment. One respondent stated that approach would eliminate analysis in Service has consulted with FWS. In since wind energy technology is rapidly the permitting process and allow the those cases where issuance of the evolving, land management plans may Agency to direct wind energy authorization may affect a federally not be sufficient for purposes of proponents to areas most suitable for listed threatened or endangered species, evaluating wind energy projects. As an wind energy projects. a comprehensive analysis under NEPA example, this respondent cited the Response. The proposed and final must be completed. Cherokee National Forest Plan, which directives establish a comprehensive, Response. Forest Service policy at was most recently updated in 2004, and orderly approach to siting wind energy FSM 2670 requires the Agency to noted that there have been significant facilities, evaluating resource interests, consult with FWS or NMFS, as changes in wind energy technology in and addressing specific issues applicable, regarding any Forest Service the intervening years. associated with wind energy permits. action that may affect any federally Response. The authorized officer may, Moreover, the Agency does not believe listed threatened or endangered species but is not required to, amend a land it is necessary to establish an inventory or their critical habitats. Section 72.1 in management plan at any time to address opportunities for wind energy of areas on NFS lands that may be the final directives directs the development and the best available suitable for wind energy projects authorized officer to clarify expectations science regarding wind energy because sufficient wind energy for coordination and consultation with development on NFS lands. Land information regarding the NFS generally FWS and NMFS with a wind energy is available from the U.S. Department of management plans tend to provide proponent at the pre-proposal meeting. Energy’s National Renewable Energy general guidance on siting decisions. Consultation and coordination under Laboratory. This coordination with the However, land management plans need Section 7 of the ESA should occur U. S. Department of Energy’s National not address wind energy development concurrently with environmental Renewable Laboratory simplifies the specifically in order for it to occur on analysis pursuant to NEPA and should process in not duplicating efforts and NFS lands. Adequate environmental providing consistency in innovation and be completed by the time the authorized analysis may be conducted at the site- technologies for setting renewable officer is prepared to issue a NEPA specific level, consistent with the final energy development opportunities.’’ decision document. Sections 73.31, directives. Comment. Several respondents paragraph 2, and 73.4a, paragraph 1, in Public Involvement suggested that the Agency incorporate the final directives address biological into the proposed directives the wind evaluations and assessments for Comment. Multiple respondents power guidelines produced by the Wind purposes of consultation under Section stated that the Forest Service did not Energy Turbines Guidelines Advisory 7 of the ESA. The Forest Service’s adequately include input from various Committee, which consists of special use regulations at 36 CFR industry organizations and State representatives from State and Federal 251.54(e)(1)(ii) require all proposals, agencies in development of the agencies and the wind energy industry. including wind energy proposals, to be proposed directives. Response. The Forest Service consistent with standards and Response. The Agency believes that recognizes that recommendations from guidelines in the applicable land the appropriate way to obtain input the Wind Energy Turbines Guidelines management plan. from industry organizations and State

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47357

agencies in the development of wind development and management and from ancillary facilities) and carbon audits energy directives is through the public scientists with expertise on bird and bat (carbon footprint) are two examples of notice and comment process and has migration ecology. issues that may be applicable and done so in the development of these The directives were derived from a appropriate during site-specific directives. number of sources, including several environmental analysis. Comment. Another respondent stated peer-reviewed publications, such as Comment. One respondent cited a that the proposed directives failed to FWS’s ‘‘Interim Guidelines to Avoid report issued by the British Government involve the various State agencies in and Minimize Wildlife Impacts from stating that roughly 20 percent of wind assessing the impact of industrial wind Wind Turbines;’’ BLM’s ‘‘Best farms generate noise complaints. This power. Management Practices and Mitigation respondent advocated minimizing noise Response. Wind energy applications for Wind Power Development;’’ and the impacts by utilizing important design will undergo project-specific American Wind Energy Association’s principles, such as installation of blades environmental analysis, as appropriate. Wind Energy Siting Handbook. These that turn on the upwind side of the In accordance with FSM 1501.2, section sources and others listed in section 70.6 towers to avoid the pressure differential 72.1 in the final directives provides for of the final directives contain useful that causes rhythmic thumping as the consultation and coordination early in information regarding wind energy blades pass the tower. The respondent the NEPA process with appropriate facilities. Section 72.21 of the final cautioned against inaccurate assessment State and local agencies and Indian directives enumerates sources that may of noise and recommended using proper tribes. This early consultation and be consulted in connection with siting microphone shielding techniques so coordination will help ensure that the of wind energy facilities. The authorized that existing ambient noise is properly requisite environmental analysis for officer may also use any applicable measured, as well as referring to a 2006 wind energy projects is consistent with existing or newly developed Federal, study addressing the impact of State fish and wildlife laws, wildlife State, or non-governmental guidelines, atmospheric conditions on night-time plans, and wind energy project recommendations, and relevant noise levels so that those levels are guidelines. scientific publications in implementing properly measured. Comment. One respondent suggested the final directives. Response. Section 73.4c in the final that the Agency consider formation of a Comment. One respondent directives requires the authorized officer citizen’s advisory board, consisting of recommended using recognized site to ensure that wind energy applicants representatives from communities assessment protocols that are based on minimize noise where possible and potentially impacted by wind energy the best available science and that practical and, if possible and practical, projects, to advise the Agency regarding include ecological attractiveness minimize the amplitude of wind turbine development of wind energy directives. evaluations, i.e., that assess ecological and associated generator noise using Response. The public input obtained magnets and other conditions that draw available noise dampening technologies. through the notice and comment birds and bats to specific sites. This In particular, section 73.4c, paragraph process combined with Agency’s own respondent noted that this information 2a, requires the authorized officer to knowledge, expertise and research have is available from the closest FWS ensure that wherever possible, resulted in development of final Ecological Services field office, as well applicants restrict noise to 10 decibels directives that can effectively guide the as from State fish and wildlife or natural above the background noise level at Agency employees who will be resource agencies. nearby residences and campsites, in or reviewing wind energy proposals and Response. The Agency agrees that the near habitats of wildlife known to be applications and issuing wind energy authorized officer should use the best sensitive to noise during reproduction, authorizations. The chartering of a available science and information in roosting, or hibernation, or where citizen advisory board under the Federal assessing suitability of sites proposed habitat abandonment may be an issue. Advisory Committee Act would not be for wind energy development, including Section 73.4c, paragraph 2b, requires cost effective and would prolong the effects on habitat and landscape features the authorized officer to ensure that development of wind energy directives and conditions that attract birds and applicants provide for comparison of and therefore, is unwarranted in this bats. This approach is reflected in noise measurements of proposed case. sections 73.31 and 73.4a in the final equipment during wind turbine directives. In addition to Forest Service operation with the background noise Use of Science records, the authorized officer may level in the project area over a 24-hour Comment. One respondent stated that gather information for site evaluations period. Forest Service regulations require the and other environmental analysis from Agency to consider the best available the local FWS Ecological Services field Purpose and Need science when implementing a land office; State fish and wildlife or natural Comment. Several respondents management plan, yet the proposed resource agencies; non-governmental commented that under NEPA a clear directives fail to use the best available entities; and sources such as and compelling purpose and need must science in prescribing direction to Natureserve’s Vista Support System, be identified for any project and that the Forest Service decisionmakers. State Heritage databases, State Agency should require that a Response. The Forest Service used the Comprehensive Wildlife Plans, and the compelling case be made for the use of best available science in developing the Audubon Society’s list of important bird NFS lands versus non-NFS lands for proposed and final directives. The areas. wind energy projects. These proposed and final directives were Comment. Several respondents respondents asked the Agency to reviewed by numerous Forest Service recommended that the Agency carefully explain the apparent change in this specialists Agencywide with substantial consider infrastructure and carbon long-standing special uses policy, which expertise in natural resource audits in reviewing wind energy they believed was reflected in the management and research and applications. proposed directives. development. The Forest Service sought Response. The Agency will address Response. Under NEPA, it is up to the advice from FWS and BLM staff all relevant issues in the NEPA process. Agency to determine the purpose and experienced in wind energy facility Infrastructure (transmission lines and need of a project. Current directives

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47358 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

require authorized officers to analyze monitoring of direct, indirect, and Comment. Multiple respondents the need to use NFS lands in evaluating cumulative effects. objected to 36 CFR 220.6(e)(3), which a special use proposal (FSM 2703.1, Comment. One respondent authorizes a CE for approval, para. 3), as well as the appropriateness commented that the proposed directives modification, and continuation of minor of the use on NFS lands (FSM 2703.1, do not clearly articulate that a site- special uses, including METs, using less para. 4). In addition, current directives specific environmental analysis will be than 5 contiguous acres of land. These provide for denial of proposals that can required for all projects; that the respondents stated that wind energy reasonably be accommodated on non- proposed directives should require an development on NFS lands does not NFS lands (FSM 2703.2, para. 3). EIS for all large-scale wind energy warrant this low level of environmental Current directives at FSM 2703.2 also projects; that the proposed directives analysis and public disclosure and that direct the authorized officer not to should clarify when, where, and how no wind energy activities should be authorize the use of NFS lands simply NEPA requirements and all natural subject to a CE. because it affords the applicant a lower resource objectives in the applicable Response. The Agency has not cost and less restrictive location than land management plan will be met; and proposed revising 36 CFR 220.6(e)(3) in non-NFS lands. These directives apply that NEPA should be strictly adhered to connection with these directives. to all special uses, including wind before any wind turbine construction Therefore, these comments are beyond energy development. proceeds. the scope of these directives. The The preceding directives need to be One respondent requested that Agency’s experience with installation of read in conjunction with the final environmental analysis be conducted at METs in many locations on NFS lands directives, which direct authorized every level of a wind energy project, has shown that reliance on a CE for this officers to authorize wind energy including prior to erection of METs. activity is often warranted. The analysis facilities on NFS lands to help meet This respondent recommended review conducted to comply with the Agency’s America’s energy needs (FSM 2726.02a, of guidelines for construction of METs NEPA regulations will be based on site- para. 1) and to facilitate wind energy issued by the State of Washington’s specific information and anticipated development when it is consistent with Department of Fish and Wildlife, which environmental effects. Provided that managing NFS lands to sustain the this respondent believed were more extraordinary circumstances are not an multiple uses of its renewable resources comprehensive than those in the issue under 36 CFR 220.6(b), the CE in while maintaining the long-term proposed directives. 36 CFR 220.6(e)(3)(i) may apply to applications for minimum area site productivity of the land (FSM 2726.02a, Some respondents believed an EIS testing and feasibility permits, which para. 3). with a 90-day public comment period involve up to 5 acres. Per section 75.11, Comment. One respondent noted that was warranted for every proposed wind paragraph 2, in the final directives, the January 2005 assessment of energy facility on NFS lands. issuance of a site testing and feasibility renewable energy potential on NFS Response. Section 74.1 of the final permit does not ensure issuance of a lands conducted by the Forest Service directives expressly provides that each permit for construction and operation of and the U.S. Department of Energy’s wind energy application, including a wind energy facility. Applications for National Renewable Energy Laboratory applications for installation of METs construction and operation of a wind shows that other renewable energy (site testing and feasibility permits), is energy permit are subject to further sources offer better potential than wind subject to NEPA. Section 74.1 of the environmental analysis, as appropriate. energy. final directives states: ‘‘Environmental Comment. One respondent stated that Response. Wind energy is an analysis for wind energy applications permit applications that are limited to important potential source of renewable must comply with Agency NEPA road or transmission line access across energy on NFS lands. The Agency procedures at 36 CFR part 220 and FSH NFS lands should not require the same recognizes that other potential sources 1909.15 and should be commensurate level of environmental analysis as wind of renewable energy on NFS lands are with the activities proposed and energy projects and that an EA should also important and is developing potential effects anticipated.’’ be sufficient for most roads and directives on hydrological, geothermal, The appropriate level of transmission lines. and solar energy facilities on NFS lands. environmental documentation—EIS, Response. The environmental analysis Each project will be decided on its own EA, or categorical exclusion (CE) from required for a wind energy application merits. documentation in an EA or EIS — must consider connected actions, i.e., depends on the anticipated significance Need for Environmental Analysis actions that (1) automatically trigger of the environmental effects of the other actions which may require an EIS, Comment. One respondent believed proposed action and is therefore site- (2) cannot or will not proceed unless that the proposed directives should link specific. Therefore, it is not appropriate other actions are taken previously or implementation of wind energy projects for the final directives to require an EIS simultaneously, or (3) are to NEPA requirements for for all wind energy projects or to specify interdependent parts of a larger action environmental analysis, including when, where, and how NEPA and depend on the larger action for their assessment of cumulative effects. requirements and all natural resource justification (40 CFR 1508.25(a)(1)(i)– Response. Sections 74 and 74.1 objectives in the applicable land (iii)). In the case of a wind energy require the Agency to comply with management plan will be met. As wind application, access roads and NEPA and Forest Service NEPA energy proposals are analyzed, resource transmission lines likely would be procedures in processing applications specialists will utilize a wide range of connected actions and likely would be for wind energy permits. Agency NEPA information, including the variety of analyzed in connection with the procedures are enumerated in 36 CFR State guidelines that are available. If an proposed wind energy use. Accordingly, part 220, with additional guidance in EIS is required, the Agency would section 71 in the final directives states FSM 1950 and FSH 1909.15. These provide at least 45 days for public that environmental analyses for each procedures describe requirements for comment. The responsible official has wind energy permit should address the analysis and documentation, as well as the discretion to extend the public connected actions essential to enabling implementation of decisions and comment period. the proposed wind energy use and that

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47359

connected actions for a permit for the to Agency employees on siting wind Comment. One respondent expressed construction and operation of a wind energy facilities and addressing issues a concern that exercise of the power of energy facility might include specifically associated with proposals eminent domain would be necessary to reconstruction of an NFS road to and applications for wind energy uses route power lines for wind energy accommodate oversized vehicles needed on NFS lands. The final directives do facilities beyond the boundaries of the to move wind turbine components and not have the effect of a rule. Rather, they NFS. construction of a power line to connect merely overlay an existing regulatory Response. The Agency believes the the proposed site with the existing and policy framework for authorizing exercise of the power of eminent energy grid. special uses on NFS lands. Thus, domain to route power lines for wind Comment. One respondent noted that issuance of the final directives does not energy facilities across private lands is some of these projects will be require formal or informal consultation beyond the scope of these directives. influenced by the renewable portfolio with FWS or NMFS. In addition, the Comment. One respondent standards (RPS) initiatives, which directives remind authorized officers commented that holders of ski area distribute costs and concentrate and others of their responsibilities permits should have the exclusive right environmental damage. under the ESA to consult on wind to develop wind energy resources on the Response. The Agency is aware of energy projects as applicable. NFS lands covered by their ski area State RPS initiatives. State RPS permits, given their long-term capital initiatives in part would require energy Issues That Should Be Addressed investments, the potential for providers to produce a percentage of Comment. One respondent stated that interference with their operations, and electricity from renewable resources. the Forest Service should be cautious in safety and access concerns. This State RPS initiatives are consistent with providing for mitigation of adverse respondent analogized the exclusive the Federal focus on renewable energy effects. This respondent believed that right that ski area permit holders should sources, which prompted development offsite and compensatory mitigation have in this context to the withdrawal of these directives. should be provided for through of ski areas on NFS lands from all forms Comment. One respondent stated that environmental analysis and utilized to of appropriation under the mining laws E.O. 13212 sets a national policy for help restore other portions of the and from disposition under all laws Federal agencies to expedite review of landscape, so as to minimize the pertaining to mineral and geothermal new energy projects on Federal lands cumulative impact on the visual leasing under the National Forest Ski and that the proposed directives would environment. Area Permit Fee Act. This respondent hamper review and authorization of Response. Section 74.1 in the final noted that ski area permit holders may new wind energy projects. choose to collaborate with other entities Response. Establishing a standard directives provides that all wind energy applications are subject to NEPA and in wind energy development, but that framework for reviewing considerations the permit holders must remain in that affect wind energy development the Forest Service’s NEPA regulations at 36 CFR part 220 and NEPA procedures control. and review of proposals and Response. Pursuant to 36 CFR at FSH 1909.15. Pursuant to these applications for wind energy projects 251.54(e)(1)(iv) and 251.55, Forest authorities, each wind energy will enhance Agency efficiency. In Service special use permits do not grant application will be subject to scoping to addition, these final directives do not exclusive use. The Agency may use or determine the appropriate level of impose any new requirements on wind allow others to use any part of a permit environmental analysis and energy projects. While E.O. 13212 area for any purpose that is not documentation. In addition, per section encourages expediting new energy inconsistent with the holder’s existing 73.4b in the final directives, visual projects, it does not exempt agencies rights and privileges, after consultation impacts associated with wind energy from compliance with applicable law, with all affected parties and agencies applications will be evaluated using the such as NEPA and the ESA. NEPA, the (36 CFR 251.55(b)). If wind energy SMS. ESA, and other Federal laws impose development is proposed within a ski requirements regardless of whether Comment. One respondent suggested area, the Agency would consult with all these directives are promulgated. The providing for additional public affected parties and agencies. If it is complexity of proposals and comment on the proposed directives. determined that both uses can coexist, applications will influence the time Response. The Agency believes that it would be important to plan, design, frame for their review. the 60-day initial comment period, and operate both uses to be compatible. Comment. Citing Citizen for Better followed by a 60-day extension, was Additionally, the Agency could modify Forestry v. United States Department of sufficient to provide for adequate public a ski area boundary to exclude land Agriculture. 481 F. Supp. 2d 1059, 1097 input on development of the final suitable for wind energy development. (N.D. Cal. 2007), one respondent stated directives and is therefore issuing these that under the ESA, the Forest Service final directives. Technical and Editorial Comments must formally consult with FWS or the Comment. One respondent Comment. One respondent suggested NMFS when developing regulations that commented that the siting of wind that the Agency strengthen key may affect Federally listed threatened or energy facilities and associated provisions in the proposed directives by endangered species. infrastructure should take into the substituting ‘‘shall’’ for ‘‘should’’ Response. Citizens for Better Forestry consideration the need to protect the and that not doing so would allow v. United States Department of ability of species to adapt to climate authorized officers to set up monitoring Agriculture. 481 F. Supp.2d 1059. 1097 change. programs that might not appropriately (N.D. Cal. 2007). involved a regulation Response. The Agency is developing measure the environmental impacts of that revised species viability and a strategic framework for climate wind energy proposals. diversity requirements for national change. Once completed, the strategic Response. In the final directives, the forest management. The court held the framework for climate change will be Agency has substituted the word rule could have indirectly affected listed used as a guide when climate change is ‘‘must’’ for ‘‘should’’ in sections 72.21d species in the NFS. In contrast, the final identified as an issue during governing species of management directives provide additional guidance environmental analysis. concern; 73.1 governing application

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47360 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

requirements for all wind energy produced from these facilities would industrialization of the eastern United permits; and 73.31 governing study provide cost savings or tax revenue for States. plans. Elsewhere, imposing a mandatory State or local residents. Some Response. Consistent with the Energy duty on the Forest Service is respondents believed that wind energy Policy Act of 2005, the Agency has inappropriate, given the need for the projects would produce insufficient determined that renewable energy Agency to retain discretion in exercising energy to warrant the sacrifice of acres projects are appropriate uses of NFS its authorities. of NFS lands. One respondent stated lands and will help meet America’s energy needs. These final directives Natural Resource Management that Federal lands should not be destroyed to satisfy the energy demands provide Agency employees with Comment. Several respondents of population centers in other parts of guidance and a consistent framework for expressed opposition to the proposed the country. One respondent stated that consideration of relevant factors for directives because they believed wind wind turbines cannot generate sufficient siting wind energy projects and energy development on NFS lands power and must rely on backup consideration of wind energy proposals. would disrupt geological and FSH 2709.11, section 72.21, addresses hydrological conditions and cause generation from conventional power siting considerations for initial deforestation, erosion, and pollution, plants and therefore will do nothing to screening of wind energy proposals and resulting in adverse impacts on wildlife help meet America’s energy needs. review of wind energy applications. and humans. One respondent stated that wind FSH 2709.11, section 73.4b, in the final Response. The proposed and final turbines must be placed where they will directives requires authorized officers to directives at FSH 2709.11, section 72.1, have the least impact on beautiful areas ensure that applicants integrate wind reference a number of items the in the NFS, so as to protect local turbine strings and design into the authorized officer must clarify with economies that rely on tourism and to surrounding landscape, based on the proponents at a pre-proposal meeting. In preserve the psychological benefit these scenic integrity objectives in the addition, the proposed and final areas confer on those who cherish the applicable land management plan. FSH directives at FSH 2709.11, section 72.2, national forests. Another respondent 2709.11, section 73.32, paragraph 12, in describe the screening process and questioned the Forest Service’s the final directives requires authorized criteria for evaluating a wind energy determination that the proposed officers to ensure that applicants proposal. Potential infrastructure directives would not have an economic produce a visual simulation depicting effects, deforestation, and erosion and impact on small businesses, given the the scale, scope, and visual effects of all the other issues identified by the likely effect of wind energy components of their proposed wind respondent may be addressed at these development on numerous businesses, energy project. stages. In addition, wind energy such as tourism and real estate, that rely Consistent with applicable law, proposals that are accepted as on access to or pristine views of NFS authorized officers will address the applications will be analyzed as lands. This respondent believed that it potential effects of wind energy projects, appropriate pursuant to NEPA. If any would be highly unlikely that the including effects on recreational values, unique site-specific factors are present, benefit of wind power would cultural resources, scenery, public they will be considered as part of the compensate for even the most minimal access, and public safety, in analysis of environmental effects in the environmental and economic costs. One environmental analysis conducted on NEPA process. Where applicable, the respondent believed that wind energy wind energy applications. Authorized scoping process will provide another projects would not produce enough jobs officers will consider the number of opportunity for public involvement. to offset their negative effects, such as acres proposed for use at pre-proposal Comment. One respondent suggested diminished property values and meetings, during screening of proposals, that the Agency conduct an analysis of decreased recreational use due to and during review of applications, the impacts of wind energy projects on disturbance of pristine national forests including environmental analysis. fire control and firefighting and that the and wildlife habitats. One respondent Impacts for the next seven generations Agency require mitigation measures to believed that electrical power derived may not be reasonably foreseeable. minimize these impacts. NEPA and its implementing regulations Response. For the reasons given in an from wind energy would be most effective from a cost and reliability require analysis of reasonably earlier response, the Agency chose not foreseeable impacts, and the Agency perspective along coastlines and near to conduct a PEIS for wind energy will comply with that requirement in its population centers, rather than on NFS projects. Any site-specific analyses site-specific NEPA analysis. conducted on wind energy projects will lands. Another respondent was take into consideration environmental concerned about the large size of wind Response to Comments on FSM 2726 effects of the proposed action, including turbines, the number required for wind Comment. One respondent potential impacts on fire control, as energy facilities, and their distant recommended adding recreation and applicable, in accordance with the location from population centers. This scenic impacts to the list of detrimental Agency’s NEPA procedures. respondent stated that small wind impacts to be minimized, so that FSM turbines and solar panels should be 2726 would provide for minimizing Socioeconomic Concerns located along highways near population detrimental social, recreational, scenic, Comment. Several respondents centers, not in national forests. One and environmental impacts, including commented that output from wind respondent believed that in assessing direct, indirect and cumulative impacts. energy facilities on NFS lands would each wind energy proposal, authorized Response. Proposed and final FSM address local energy needs and would officers should consider its potential 2726 do not provide a list of detrimental result in a cost savings to consumers. psychological, physical, and spiritual impacts to be minimized. Nevertheless, Other respondents stated that there is impacts on the next seven generations, impacts on recreation and scenery will absolutely no guarantee that the output as well as its impacts on natural be analyzed at the site-specific project from wind energy facilities on NFS resources. One respondent was level as appropriate. lands would be available to local concerned that wind energy Comment. One respondent suggested communities or that wind energy development would result in further that the authorized officer delegate

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47361

determination of the appropriate 70.2—Objectives the National Register of Historic Places, including artifacts, records, and remains that environmental analysis for wind energy Comment. Several respondents projects to resource specialists to are related to and located within these disagreed that wind energy properties. prevent delays in initiating studies. development would reduce the United Comment. One respondent believed Response. The basic principles for States’ dependence on foreign energy the proposed definition for the phrase delegation of authority are in FSM 1230 sources and thus believed that wind ‘‘reasonably foreseeable future actions’’ and are further enumerated throughout energy development was inappropriate as ‘‘those activities not yet undertaken, the Forest Service Directive System. on NFS lands. These respondents noted for which there are existing decisions, Unless specifically delegated, the that wind energy components produced funding, or identified proposals,’’ was authority to make decisions rests with outside the United States would require too narrow. Specifically, this Regional Foresters, Forest or Grassland more fossil fuel for their manufacture respondent believed that the phrase Supervisors, and District Rangers, not and transport than would be saved from ‘‘not yet undertaken’’ would eliminate resource specialists. FSM 2726.04b, the generation of wind energy. These from evaluation those effects that have paragraph 4, provides for delegation of respondents further noted that wind wind energy authorities from the taken place and will continue; that there energy facilities in Europe have not were reasonably foreseeable future Regional Forester to the Forest replaced or caused the closing of any Supervisor as provided in FSM 2704.33. actions that would occur even in the fossil fuel plants. absence of ‘‘existing decisions, funding, The authorized officer utilizes the Response. In response to this or identified proposals;’’ and that these expertise of resource specialists, as comment, the Agency believes wind actions would have effects and must be needed, to inform decisions, including energy would help reduce net fossil fuel decisions regarding appropriate evaluated. consumption and promote clean air. In Response. The phrase ‘‘reasonably environmental analysis and addition has revised section 70.2 to foreseeable future actions’’ is defined in documentation. read: the Forest Service’s NEPA regulations at Comment. One respondent The Energy Policy Act of 2005 recognizes 36 CFR 220.3. The definition for this recommended mentioning species that the Forest Service’s role in meeting the phrase was vetted by the public, other are listed or are candidates for listing as renewable energy goals of the United States. Federal agencies, and the Council on Consistent with Agency policies and endangered in FSM 2726.02a, paragraph Environmental Quality (CEQ) prior to its 5, and adding FWS to the list of Federal procedures, the use and occupancy of NFS lands for alternative energy production, such adoption. The Forest Service’s NEPA agencies with a coordination role in regulations are beyond the scope of the FSM 2726.21a, paragraph 1. as wind energy development, are appropriate and will help meet the energy needs of the wind energy directives. Response. FSM 2726.02a, paragraph United States. For additional objectives Comment. One respondent objected to 5, already directs authorized officers to regarding wind energy facilities see FSM the definition for ‘‘site plan’’ on the consider species of management 2726.02a. grounds that it would require siting concern, which includes threatened and 70.5—Definitions individual wind turbines, rather than endangered species and their critical turbine corridors. This respondent habitats in siting wind energy facilities. Comment. Some respondents stated that it is impossible to identify The Agency agrees with the second indicated that a better definition for specific turbine locations at the recommendation and has added FWS ‘‘adaptive management’’ was needed. application stage when the turbine and NMFS to the list of agencies in FSM Response. The Agency has removed model to be used and overall project 2726.21a, paragraph 1. The list is not the definition for ‘‘adaptive capacity are still unknown. The comprehensive; there are other Federal management’’ because that term is not respondent further noted that most State agencies that may be contacted used in chapter 70. and county agencies require applicants Comment. One respondent suggested regarding protected species, including to site turbine corridors, rather than replacing all references to ‘‘significant NMFS. individual turbines, for this reason. cultural resources’’ with ‘‘historic Response. In response to this Response to Comments on FSH 2709.11, properties’’ because historic properties comment, the Agency has modified the Chapter 70 are listed or eligible for listing in the definition for ‘‘site plan’’ in the final 70.1—Authority National Register for Historic Places, directives to read: and their significance is presumed. Comment. One respondent suggested Response. The Forest Service agrees A scaled, two-dimensional graphic adding to the list of authorities the Bald that historic properties are a type of representation of the location of all proposed cultural resource and that the wind turbines, buildings, service areas, and Golden Eagle Protection Act, the roads, structures, and other elements of a ESA, E.O. 13186, the MBTA, and NEPA. significance of cultural resources as wind energy facility that are displayed in Response. This section addresses the defined in the final directives is relationship to existing site features, such as Forest Service’s authority to issue presumed. Accordingly, the Agency has topography, major vegetation, water bodies, permits for wind energy uses on NFS revised the definition for ‘‘cultural and constructed elements. lands, which is in section 501(a)(4) of resource’’ and added a definition for Comment. One respondent suggested FLPMA, 43 U.S.C. 1761(a)(4), and to ‘‘historic property,’’ to read as follows: that the Agency remove the word recover costs in connection with Cultural Resource. A product or location of ‘‘generally’’ from the definition of processing wind energy applications human activity, occupation, or use ‘‘species of management concern,’’ so and monitoring wind energy permits, identifiable through field survey, historical that migratory bird and bat species are which is in section 504(g) of FLPMA (43 documentation, or oral evidence, including included. U.S.C. 1764(g)). FSH 2709.11, sections prehistoric, archaeological, or architectural Some respondents suggested 73.4 and 74.1, in the final directives sites and structures, historic properties, expanding the definition for species of sacred sites and objects, and traditional addresses compliance with NEPA, the cultural properties. management concern to include species ESA, and other environmental laws in Historic Property. Any prehistoric or that are listed or that are candidates for connection with authorizing wind historic district, site, building, structure, or listing by States as endangered or energy uses. object included or eligible for inclusion in threatened. One respondent

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47362 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

recommended that the definition for public documents available on wind monitoring plan for installation of species of management concern be and wildlife interactions. METs, as well as all the studies needed limited to species protected under Response. The Forest Service used the to process an application for a permit to Federal law. FWS’s Interim Guidelines to Avoid and construct and operate a wind energy Other respondents suggested Minimize Wildlife Impacts from Wind facility. This respondent stated that including a wide variety of species Turbines in developing the Forest since METs are temporary structures without regard to Federal or State status, Service’s proposed and final wind with minimal impact, no environmental such as raptors, grassland gallinaceous energy directives. These guidelines are or cultural resources studies should be bird species, ground-nesting bird cited in section 70.6, along with all required for applications for site testing species that exhibit significant other sources used to develop the and feasibility permits. This respondent avoidance or other behavioral directives. also stated that studies needed to modifications and habitat fragmentation The authorized officer may use any process an application for a wind energy in response to vertical structures, and applicable Federal, State, and non- permit should be required only if the big game, such as elk and deer. governmental guidelines, application is filed. Additionally, respondents cautioned recommendations, and scientific Response. The proposed and final that care must be taken to avoid publications in connection with NEPA directives provide for issuance of a placement of wind energy facilities in compliance and review of proposals and permit, rather than a lease or an big game migration corridors, critical applications and issuance of permits for easement, for wind energy uses. fawning or calving grounds, or winter wind energy uses. Regardless, the Forest Service’s NEPA habitat. Comment. Several respondents regulations at 36 CFR part 220 are Response. In the final directives, the suggested additional references for beyond the scope of these directives. Agency has removed the word inclusion in the proposed directives. Provided that extraordinary ‘‘generally’’ from the definition for Response. After careful review, the circumstances are not an issue under 36 ‘‘species of management concern.’’ Agency has added two references cited CFR 220.6(b), installation of METs The Agency does not believe it is by these respondents, including under a minimum area site testing and appropriate to limit species of Assessing Impacts of Wind Energy feasibility permit, which involves up to management concern to those protected Development on Nocturnally Active 5 acres of land, may qualify for a CE by Federal law. Therefore, the Agency Birds and Bats: A Guidance Document under 36 CFR 220.6(e)(3)(i). This CE has added State-protected species to the and the FWS’s Interim Guidelines to applies to approval of construction of a definition for clarity. Species of Avoid and Minimize Wildlife Impacts meteorological sampling site requiring management concern may be any single From Wind Turbines to section 70.6 in less than 5 contiguous acres of land. species or group of species (e.g., big- the final directives. The Agency agrees that a monitoring plan should be required for permits for game, small game, upland game birds, 71—Types of Wind Energy Permits amphibians, reptiles, and butterflies) construction and operation of a wind and their corresponding habitats that Comment. One respondent stated that energy facility, not for site testing and may be affected by the proposed project if the proposed regulation at 36 CFR feasibility permits. Therefore, in the and that therefore should be included in 220.6(d)(10)(ii) allowing for conversion final directives, the Agency has the site-specific environmental analysis. of an existing special use authorization, removed the requirement for a Project-specific species of such as a permit, to a new type of monitoring plan from the provisions in management concern may be identified special use authorization, such as a section 75 governing site testing and by reviewing the applicable land lease or easement, without creation of a feasibility permits. management plan; Regional Forester project or case file or decision memo is Section 75.1, paragraph 3a, of the sensitive species list; interagency promulgated, the Forest Service should proposed directives stated that if species recovery or management plans; preclude its application to wind energy equipment is not installed and and State wildlife action plans. Species permits. This respondent reasoned that operational within 2 years after issuance or groups of species may also be special use permits, leases, and of a site testing and feasibility permit, identified through consultation with easements are very different legal the permit shall terminate. In the final other Federal agencies, State agencies, instruments and are not directives, the Agency has added the and tribal and local governments; public interchangeable. The respondent phrase, ‘‘unless a written justification scoping and involvement; site testing believed if this regulation applied to for the delay is submitted and accepted and feasibility evaluations; and pre- wind energy permits, it would allow by the authorized officer prior to the construction survey and inventory. conversion of a 30-year wind energy end of the 2-year period,’’ to address Comment. Some respondents wanted facility permit to an easement or a lease, situations where the delay is caused by the proposed directives to include which often has a longer term or may be circumstances that are beyond the definitions for ‘‘blade-swept area,’’ granted in perpetuity. This respondent holder’s control. ‘‘turbine array,’’ ‘‘wind farm or park,’’ believed that an authorization with this Section 75.1, paragraph 3b, of the and ‘‘wind resource area.’’ type of term could set a dangerous final directives states that if test results Response. The Forest Service has not precedent in permanently removing from METs or other instruments are not included definitions for these terms public access to NFS lands without reported to the Forest Service within 3 because they do not appear in the final public notice. years after issuance of either type of site directives. Another respondent stated that unless testing and feasibility permit, the permit METs require new road construction, shall terminate, unless a request for an 70.6—References they should be eligible for a CE from extension is submitted at least 6 months Comment. One respondent suggested documentation in an EA or EIS or less before termination and is approved by referencing FWS’s Interim Guidelines to detailed environmental analysis. This the authorized officer. In addition, Avoid and Minimize Wildlife Impacts respondent was concerned that the section 75.11, paragraph 1, of the final from Wind Turbines; the Government provisions regarding site testing and directives provides that studies on the Accountability Office’s 2005 Wind feasibility permits in the proposed feasibility of a wind energy project and Audit Recommendations; and any FWS directives appeared to require a wildlife its environmental compatibility are

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47363

required for processing an application larger project area being secured by the that the public can be involved early in for a permit to construct and operate a site testing and feasibility permit. the process. Another respondent stated wind energy facility and must Response. The environmental analysis that the Forest Service should ensure accompany the study plan (sec. 73.31). for each type of wind energy permit that wind energy proponents provide for Consistent with section 75.1, should address only the use proposed adequate public awareness through paragraph 3b, the Agency has clarified for that type of permit. For example, public meetings and coordination with section 71, paragraph 1, in the final environmental analysis for a site testing affected local and State agencies, and directives to state that site testing and and feasibility permit should address that any concerns raised during these feasibility permits are issued for a term the proposed use of NFS lands for site efforts should be documented and of up to 3 years, with the option to testing and feasibility, as opposed to presented to the Forest Service. One extend the permit for up to 2 years, construction and operation of a wind respondent stated that siting and design pursuant to section 75.1, paragraph 3b. energy facility, which may be proposed criteria should be discussed at the Comment. One respondent questioned at a later time. beginning of the process, rather than whether a special use permit was the Comment. One respondent suggested relying on mitigation measures imposed appropriate mechanism for dealing with increasing the term of a permit for at the end of the process. Another wind energy development and construction and operation of a wind respondent suggested that Forest suggested that the Forest Service energy facility from 30 to 40 years or Service personnel trained in scenery explore other approaches because of the more on the grounds that wind energy management be included in pre- permanent or quasi-permanent aspect of development is costly and the return on proposal meetings. One respondent these developments. In particular, this the investment may not be realized in a noted that BLM’s best management respondent believed that the provisions 30-year period, and financing may be practices for fluid minerals might serve in the proposed directives concerning difficult to obtain if the certainty of the as a model for improving on-site wildlife monitoring and adaptive project is unknown after 30 years. reviews. Another respondent noted that the 30- management were weak and questioned Response. The Agency believes it is year term for a permit for construction whether, once a special use permit was not necessary or appropriate to conduct and operation of a wind energy facility issued, the Forest Service would have a public meeting before a wind energy was misleading, since once wind sufficient authority to impose new proposal is submitted. A pre-proposal turbines, which have a typical life of requirements on the permit holder in meeting between the proponent and the more than 60 years, are installed, they response to new information that might Forest Service is required by 36 CFR are essentially permanent because of the require substantial and costly 251.54(a) and section 72.1 of the final cost of removing them. modifications to the project. Response. The Agency believes that a directives. Under these provisions, a Response. Section 501(a)(4) of 30-year term, which is one of the longer wind energy proponent must contact the FLPMA, (43 U.S.C. 1761(a)(4)) terms for Forest Service special use Forest Service as early as possible to authorizes the Forest Service to grant authorizations, is sufficient for purposes ensure that the proponent fully rights-of-way for the use and occupancy of recouping the investment in a wind understands the implications and of NFS lands for generation, energy facility and for purposes of requirements associated with a wind transmission, and distribution of obtaining financing. In addition, the use energy proposal. The anticipated level electric energy. Forest Service covered by a permit for construction of public interest, environmental regulations at 36 CFR part 251, Subpart and operation of a wind energy facility concerns, siting, and potential effects on B, provide for issuance of permits for may be reauthorized under 36 CFR the visual resource are included in this rights-of-way granted under FLPMA. 251.64, provided that the facility is still exchange. The Forest Service normally Both FLPMA (43 U.S.C. 1765(a)(ii)) and being used for wind energy purposes, is utilizes a broad range of resource Forest Service regulations (36 CFR being operated and maintained in specialists, including those trained in 251.56(a)(1)(i)(B)) allow the Agency to accordance with all the provisions of scenery management, in the proposal include terms and conditions that the permit, and is consistent with the development phase. Because a pre- minimize damage to fish and wildlife decision that approved the facility. In proposal meeting is conducted early in habitat and otherwise protect the reauthorizing the use, the authorized the process, a proposal may not be fully environment. officer may modify the terms and developed at that time. Therefore, In addition, the standard forms that conditions of the permit to reflect new public involvement initiated by the will be used to authorize wind energy requirements imposed by current Forest Service is not appropriate or uses contain a provision that allows the Federal and State land use plans, laws, required at that point. Per 36 CFR authorized officer to amend the permit regulations, or other management 251.54(e)(6), (g)(1), and (g)(2)(i), public in whole or in part at the discretion of decisions. involvement initiated by the Agency is the authorized officer, when deemed Forest Service regulations at 36 CFR required after a proposal is accepted as necessary or desirable to incorporate 251.54(e)(1)(iv) preclude authorization an application. new terms, conditions, and stipulations of permanent facilities. A wind energy However, a proponent may wish to that are required by law, regulation, the permit will terminate upon expiration, seek public input in developing a wind applicable land management plan, or and the use will be discontinued, unless energy proposal. The Agency supports other management decisions. a new permit is issued for the use. In public outreach efforts by a proponent Comment. One respondent believed addition, section 77.5 in the final in developing a wind energy proposal. that the guidance in proposed section directives provides for restoration of Section 73.5 in the final directives 71, paragraph 3, ‘‘environmental wind energy facility sites upon directs authorized officers to ensure that analysis for each type of wind energy discontinuation of the use. wind energy applicants consider permit should address only the conducting meetings to inform the proposed use for that type of permit,’’ 72.1—Pre-Proposal Meetings public regarding wind energy would ensure that environmental Comment. One respondent suggested development, including the design, analysis for site testing and feasibility that a public meeting be held before a operation, and public benefit of a permits would be conducted on the wind energy proposal is submitted, so proposed facility.

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47364 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Comment. One respondent stated that 72.2—Federal Interagency Coordination for coordination with FWS and NMFS the Forest Service should require Comment. One respondent stated that as required under the Bald and Golden consultation and coordination with the obligation to obtain clearance for Eagle Protection Act, the ESA, the State fish and game agencies throughout obstructions in airspace rests with the MBTA, and similar requirements under the process for wind energy FAA, not the Department of Defense other Federal and State wildlife laws. development, including pre-screening (DoD) or the Department of Homeland This respondent also stated that the and pre- and post-development Security (DHS), and that the FAA does proposed directives need to provide for monitoring plans, in addition to the not require obstruction evaluations for consideration of sensitive species and opportunity to comment through the most new construction less than 200 management indicator species in each region in any analysis, assessment, and NEPA process. Another respondent feet above ground. Consequently, this evaluation related to wind energy suggested specifying a minimum period respondent recommended notifying development and protection of those for development of a wind energy proponents of the need for an species through mitigation measures proposal to ensure adequate pre- obstruction evaluation only when their proposal coordination with appropriate included in wind energy permits. proposal includes project components One respondent recommended that local and State agencies and other that would be taller than 200 feet. The stakeholders. State fish and wildlife agencies and respondent also noted that separate FWS be consulted regarding the Response. Section 72.1, paragraph 2g, FAA environmental analysis of suitability of a proposed site and known in the final directives addresses proposed wind energy development wildlife resources in the vicinity. discussion at pre-proposal meetings of should not be necessary because of the Another respondent stated that the consultation and coordination with environmental analysis of wind energy proposed directives circumvent appropriate State and local agencies and applications conducted by the Forest environmental analysis and Indian tribes. Section 73.1, paragraph 1, Service. consultation with FWS and give too in the final directives provides for Response. The Agency agrees that an much discretion to local Forest Service coordination and consultation with FAA obstruction evaluation is generally officials and wind energy permit tribal governments and with regulatory needed only for wind energy holders. Another respondent agencies such as FWS regarding wind construction 200 feet above ground level recommended establishing an energy applications. These provisions or within close proximity of an airport, interagency committee of State and will help ensure that project reviews in which case wind energy turbines may Federal wildlife experts, including and NEPA analyses are coordinated interfere with radar. The Agency representatives from FWS, to assist in with State, local, and tribal governments believes that sections 72.1, paragraph g, review of wind energy applications. and are consistent with State wildlife and 73.1, paragraph 1, in the final One respondent noted that all laws, wildlife plans, and wind energy directives adequately address federally listed threatened and development guidelines. The Forest coordination with the FAA in endangered species and State-protected Service does not believe it is necessary connection with proposed wind energy species and their habitat should be or appropriate to specify a minimum projects on NFS lands. The Agency considered in long-term management period for development of a wind believes that it is more appropriate for decisions concerning wind power energy proposal to ensure adequate pre- the FAA, rather than the Forest Service, development. Another respondent proposal coordination with interested to provide any additional necessary stated that wind energy proposals parties. Applicable regulations and detail regarding compliance with FAA should not be accepted if they destroy directives provide sufficient radar and electronic security or degrade critical habitats for listed opportunity for coordination by requirements in this context. The threatened and endangered species. requiring proponents to contact the Agency also agrees that separate FAA This respondent believed that because Forest Service as early as possible. environmental analysis of proposed wind turbines tower high above ridges, wind energy development is not the turbines would kill thousands of Comment. One respondent stated that necessary because of the environmental eagles and hawks soaring on updrafts where federally listed species or their analysis of wind energy applications and would pose an increasing risk to habitat are likely to be impacted by that will be conducted by the Forest eastern populations of peregrine falcons. wind energy development, the Forest Service. Response. Section 7 of the ESA and Service should clarify the Agency’s Comment. One respondent stated that FSM 2670 require the Forest Service to roles and responsibilities with the FWS, the proposed directives need to provide consult with FWS or NMFS regarding including designating a wind energy for coordination with the Federal any Forest Service action that may affect applicant as a non-Federal Energy Regulatory Commission (FERC). a threatened or endangered species or representative for purposes of informal Response. The Agency does not its critical habitat. FSM 2670 addresses consultations under Section 7 of the believe it is necessary to provide for sensitive species, management indicator ESA. coordination with FERC in connection species, and other species of Response. The authorized officer may with wind energy proposals. Proponents management concern. Section 7 choose to designate a wind energy are responsible for inter-connection consultation occurs concurrently with applicant as a non-federal representative agreements and other aspects of the NEPA analysis and is completed by the pursuant to 50 CFR 502.08 for purposes project that may fall within FERC’s time the authorized officer is prepared of informal consultation under Section preview. FWS, DoD, DHS, the FAA, and to issue a NEPA decision document. All 7 of the ESA. The Forest Service will the National Weather Service all have consultation, coordination, and project furnish guidance and supervision and an interest in wind energy development review required under the Bald and will independently review the scope because these agencies’ activities Golden Eagle Protection Act (16 U.S.C. and contents of the biological involve airspace and could be adversely 668–668d), MBTA (16 U.S.C. 703–712), assessment. When formal consultation affected by interference with and E.O. 13186, regarding the is necessary, it will be conducted by the instrumentation. responsibilities of Federal agencies to Forest Service in accordance with Comment. One respondent stated that protect migratory birds, are also Section 7 of the ESA. the proposed directives should provide conducted concurrently with NEPA

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47365

analysis and completed before a NEPA 72.31a—General Considerations Comment. One respondent stated that decision document is released. This section in the proposed the Forest Service should adhere to With respect to wind energy directives addressed general FWS regulations and NEPA with regard development, section 72.1, paragraph g, considerations associated with siting to siting wind turbines. Response. FWS’s Interim Guidelines of the final directives requires the wind energy facilities on NFS lands. to Avoid and Minimize Wildlife Impacts authorized officer at pre-proposal Comment. One respondent stated that from Wind Turbines were used to meetings to clarify expectations for before considering wind energy projects develop the proposed and final coordination and consultation with for a particular administrative unit, the directives. However, the Forest Service Forest Service should amend the FWS, NMFS, and State agencies. believes it would not be appropriate to applicable land management plan to Additionally, as part of NEPA limit the siting of wind turbines to one identify those areas that are compliance for wind energy set of guidelines. The Forest Service inappropriate, appropriate, or applications, the Forest Service will ask must be able to use the most applicable designated for wind energy State agencies and Federal wildlife and best information throughout the development and, with regard to the experts for input through the public wind energy permitting process. latter two, those areas that are subject to scoping process. Therefore, the Forest Sections 71, 72.1, and 74 of the final a higher standard of review before any Service does not believe it is necessary directives address NEPA compliance in wind energy project is approved. to establish an interagency committee of the context of wind energy development Response. The Agency does not State and Federal wildlife experts to on NFS lands. assist in review of wind energy believe it is necessary or appropriate to Comment. One respondent noted that applications. require programmatic analysis and maps are available which display areas amendment of land management plans The final directives contain numerous on NFS lands with strong wind for siting wind energy facilities on NFS resources and recommended that the provisions addressing protection of lands. The Agency believes that the wildlife. Section 70.5 of the final proposed directives facilitate appropriateness of siting a wind energy maximization of wind energy directives defines ‘‘species of facility on a particular administrative management concern’’ broadly to production for those NFS lands that are unit of the NFS is best addressed in a suitable for that purpose. include federally listed threatened and site-specific manner. However, when endangered species; species that are Response. The Agency has land management plans are revised, determined that renewable energy candidates for listing as threatened or they should address renewable energy endangered; Forest Service species of projects are appropriate uses of NFS development as needed or appropriate. lands and will help meet America’s concern, species of interest, species of Several sections of the final directives high public interest, and management energy needs. Pursuant to the Multiple address siting of wind energy facilities. Use-Sustained Yield Act (16 U.S.C. 528– indicator species; and State-protected For example, siting of wind energy species. Section 72.1, paragraph 2g, 531), the Forest Service manages NFS facilities will be discussed at pre- lands for multiple uses, without provides for clarification at pre-proposal proposal meetings per section 72.1. meetings of expectations for favoring one use over another. The NFS Section 72.2 addresses siting is not reserved for any particular use, coordination and consultation with considerations in the context of nor must every use be accommodated FWS. Section 72.21d addresses siting screening wind energy proposals. on every acre of NFS lands. Suitability considerations for species of Section 72.2 precludes issuance of of the proposed location for wind management concern. To protect birds permits for wind energy facilities in energy facilities will be considered as and bats, section 73.2 provides for wilderness areas and wilderness study part of the application process. avoiding the use of guy wires on METs. areas, in wild and scenic river corridors, Comment. One respondent Section 73.31, paragraph 1, requires at national historic sites, on National commented that the proposed directives applicants for a permit for construction Historic or National Scenic Trails, in should encourage buffer zones around and operation of a wind energy facility other special areas where Federal law wilderness areas to protect wildlife, to submit a study plan that includes a precludes land use for wind energy viewsheds, and other values protected review of existing information regarding production, in areas authorized for use by wilderness areas. Some respondents species of management concern. Section by the DoD or one of its agencies, and provided a list of scenarios where wind 73.31, paragraph 2, requires applicants in areas where DoD, DHS, FAA, or energy development should be to identify information and methods by National Weather Service express discouraged. These respondents further which to gather information for the concern that a proposed wind energy recommended that the proposed development of biological assessments facility would diminish national directives provide for denial of wind and evaluations of project-specific security, military readiness or suitability energy permits if a finding is made that species of management concern and of training areas, radar and electronic their impacts cannot be mitigated or that their habitats. security, or safety of military or civilian the proposed use would conflict with Section 73.4a addresses in detail airspace. Sections 72.21 through 72.21e existing uses or plans for multiple-use species of management concern in the address specific siting considerations in areas. context of construction and operation of the context of screening wind energy One respondent commented that wind energy facilities. Section 75.11, proposals. Section 73.32 states that a NEPA allows for unavoidable adverse paragraph 1d, provides for evaluation of wind energy plan of development, impacts and that the proposed site feasibility for wind energy which must be submitted by an directives hold wind energy projects to development relative to bat and bird applicant for a permit for construction a higher standard than other projects, migration routes and installation of bat and operation of a wind energy facility, since section 72.31a, paragraph 7a, detection equipment on METs. Section is used to determine if a wind energy states that a wind energy project may be 75.21, paragraph 6, requires a wildlife project is consistent with the applicable inappropriate if the authorized officer monitoring plan for permits for land management plan and facilitates makes a finding that ‘‘resource impacts construction and operation of a wind the safe and orderly use of land for wind cannot be mitigated.’’ This respondent energy facility. energy production. recommended stating that a wind

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47366 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

energy project may be inappropriate if energy facility would diminish national opportunities that may be afforded by the authorized officer makes a finding security, military readiness or suitability wind energy facilities. Infrastructure that adverse resource impacts outweigh of training areas, radar and electronic requirements are addressed in sections the positive impact derived from security, or safety of military or civilian 73.32 and 75.21, paragraph 3, of the generating renewable energy. airspace. Per section 72.1, paragraph g, final directives, which address a plan of Two respondents stated that if the likelihood of these types of concerns development for wind energy facilities. another Federal agency raised a concern will be addressed at the pre-proposal Comment. One respondent about a wind energy project, even meeting. The Agency does not believe it commented that in authorizing long- without any basis, it would be enough would be appropriate to require other term wind energy projects, the Forest to stop the project. These respondents Federal agencies to document concerns Service should consider State renewable believed that if an unacceptable impact they have regarding the effects of a energy portfolio standards for wind is demonstrated, mitigation measures proposed wind energy facility on energy development. should be explored before a proposal is national security, military readiness or Response. Compliance with rejected. One of these respondents suitability of training areas, radar and applicable State renewable energy recommended requiring other Federal electronic security, or safety of military portfolio standards for wind energy agencies to demonstrate that anticipated or civilian airspace. development is beyond the scope of project impacts would be unacceptable Comment. One respondent noted that these directives. The Forest Service’s based on a technical review conducted while the proposed directives list special use regulations at 36 CFR through a process that would allow for various resources to be considered, 251.54(d)(5) allow the authorized officer consideration of concerns raised by all avoided, and protected, the proposed to require any other information and sides. directives should include species data necessary to determine compliance Response. The Agency does not protected under the ESA, State-listed with requirements for associated believe that buffer zones around species (including species of ‘‘greatest clearances, certificates, permits, or wilderness and other special areas are conservation need’’), State trust wildlife licenses and to require suitable terms necessary. The proposed actions in the resources, and Audubon Watchlist and conditions to be included in special viewshed from designated wilderness species. use authorizations. Standard special use areas would include an analysis of the Response. Section 70.5 in the final authorization forms require the holder effects on the scenic values for directives broadly defines species of to comply with all applicable laws, protecting sensitive wilderness areas management concern to include regulations, and standards, as well as during the environmental analysis federally listed threatened and laws relating to the siting, construction, process. It is the viewshed rather than endangered species; species that are operation, and maintenance of any a buffer zone that’s more relevant to candidates for listing as threatened or authorized facility, improvement, or protecting wilderness values. endangered; Forest Service species of equipment. In addition, sections 72.31b through concern, species of interest, species of Comment. One respondent stated that 72.31e in the proposed directives and high public interest, and management processing of wind energy proposals sections 72.21a through 72.21e in the indicator species; and State-protected and applications should be an objective final directives iterate several categories species. Section 72.21d provides for process and that siting and suitability of of siting considerations, e.g., impacts on consideration of all species of wind energy facilities is appropriately recreation and scenery and wildlife, management concern in screening wind addressed in the environmental review which must be taken into account in energy proposals, with an emphasis section of BLM’s Instruction screening wind energy proposals. primarily on birds and bats because of Memorandum No. 2005–069, ‘‘Interim Wind energy projects are subject to their particular vulnerability to METs Offsite Compensatory Mitigation for Oil, the same environmental standards as and wind turbines during flight. Gas, Geothermal and Energy Right-of- other proposed projects on NFS lands. Comment. One respondent noted that Way Permits.’’ The Agency has not retained the wind power would provide a measure of Response. The Agency agrees that provision in section 72.31a, paragraph security and resilience to the tourism processing of wind energy proposals 7a, in the proposed directives because it industry, since it would diminish the and applications should be an objective is duplicative. Sections 72.21a through reliance on foreign sources of energy. process. The Agency used BLM’s 72.21e in the final directives adequately This respondent also commented that Instruction Memorandum No. 2005–069 address consideration of resource wind power facilities would be an in developing the final directives and impacts in screening wind energy additional tourist attraction that could referenced it in section 70.6, paragraph proposals. In addition, under the initial offer educational opportunities for 4, of the final directives. screening criteria in the special use visitors. Another respondent stated that Comment. One respondent believed regulations at 36 CFR 251.54(e)(1)(v), siting considerations should include that the proposed directives represented proposed uses may not unreasonably educational and demonstration another attempt to privatize Federal conflict or interfere with other opportunities that wind energy facilities lands. This respondent stated that scheduled or authorized uses of the NFS may offer and location and locating wind turbines in areas that or use of adjacent non-NFS lands. The infrastructure requirements necessary to could also support solar energy Agency agrees that if a proposed wind transport power from wind energy development might minimize energy facility would cause facilities to users. environmental impacts while reducing unacceptable impacts, mitigation Response. The Agency supports costs. The respondent also noted that far measures may be explored to eliminate education and demonstration fewer impacts would result from wind the impacts or reduce them to an opportunities that may be offered by energy development on national acceptable level. wind energy facilities, which could be grasslands or other uninhabited lands Proposals for wind energy facilities discussed at the pre-proposal meeting than from wind energy development in may be denied, rather than must be with the authorized officer. However, national forests. denied, in areas where the DoD, DHS, the Agency does not believe it is Response. Issuance of special use FAA, the National Weather Service necessary to require consideration of authorizations for wind energy facilities expresses concern that a proposed wind education and demonstration or any other uses does not result in

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47367

privatization of Federal lands. The provides for compliance with the Forest and was unable to address the comment Forest Service’s special use regulations Service’s NEPA procedures at 36 CFR concerning that letter. The Agency has at 36 CFR 251.55(b) state that all rights part 220 and FSH 1909.15 in reviewing not made the revision suggested by this not expressly granted by a special use applications for wind energy facilities. respondent to proposed section 72.31a, authorization are retained by the United In conducting environmental analysis of paragraph 2 (sec. 72.21 in the final States, including continuing rights of these applications, the Agency will take directives), because the Agency believes access to all NFS lands; a continuing into consideration the cumulative that electricity produced by wind right of physical entry to any part of the effects associated with the proposed turbines will require a generation authorized facilities for inspection, use. In many cases, construction of substation and transmission lines to monitoring, or any other purposes or roads, facilities, and power lines may be carry it to a power grid. reason consistent with any right or connected actions and will be analyzed The Agency has included the obligation of the United States under accordingly, where appropriate, under introductory text of proposed section any laws or regulation; and the right to applicable law. 72.31a, paragraph 4, in section 72.21 in require common use of the land or to Comment. One respondent suggested the final directives. However, the authorize use by others in any way that including in the general considerations Agency has not retained proposed is not inconsistent with the holder’s section statements from an otherwise section 72.31a, paragraphs 4a through rights and privileges, after consultation unspecified letter dated May 13, 2003. 4d, in the final directives or added the with all affected parties and agencies. In addition, this respondent suitability factor suggested by the The final directives, including the siting recommended (a) revising proposed second respondent because they are considerations, apply to all NFS lands. section 72.31a, paragraph 2, to state that duplicative. Sections 72.21, 73.3, 73.4, The Agency believes it would not be electricity produced by wind turbines and 75.11, paragraph 1, in the final appropriate to create a preference for ‘‘may,’’ rather than ‘‘will likely,’’ require directives adequately address one type of NFS lands over another with a generation substation and consideration of resource impacts, the respect to wind energy development. transmission lines to carry it to a power wind resource, proximity of proposed Comment. One respondent noted that grid; (b) revising proposed section wind turbines to transmission lines, and all facilities associated with a wind 72.31a, paragraph 4a, to provide for noise from wind turbines in evaluating energy project on NFS lands should be consideration in assessing site wind energy proposals and applications. covered by the proposed directives and suitability of ‘‘other environmental, The Agency agrees with the third suggested clarifying the second sentence recreational, or other human resource respondent that the definition of species of the section 72.31a, paragraph 2, considerations,’’ rather than ‘‘other of management concern should include which states, ‘‘Other facilities may be environmental or human resource State-protected species and has required for access, construction, considerations’’; (c) revising proposed accordingly revised that definition in operation, and maintenance,’’ to make section 72.31a, paragraph 4c, to provide section 70.5 of the final directives. that point explicit. for consideration in wind energy Comment. One respondent suggested Response. The Agency agrees that this planning of ‘‘the proximity of proposed revising section 72.31a, paragraph 6, to sentence needs to be revised to clarify wind turbines to transmission lines and state that authorizations for wind energy that it applies to wind energy projects. the need to construct new transmission development will not be issued for Accordingly, the Agency has revised lines,’’ rather than ‘‘the proximity of development incompatible with specific this sentence, which appears in section proposed wind turbines to transmission resource values, including areas of 72.21 of the final directives, to read: lines’’; and (d) revising proposed section critical environmental concern, ‘‘Other facilities may be required for 72.31a, paragraph 4d, to provide for wilderness areas, wilderness study access, construction, operation, and consideration in wind energy planning areas, Wild and Scenic Rivers, National maintenance of a wind energy facility.’’ of ‘‘project area resources and uses Historic and National Scenic Trails, and It is possible that not all facilities sensitive to noise from wind turbines,’’ areas where resource impacts cannot be required for access, construction, rather than ‘‘noise from wind turbines.’’ mitigated. operation, and maintenance of a wind A second respondent recommended Response. The Agency has addressed energy facility will be authorized under the following additional suitability this concern in section 72.2, paragraphs a wind energy permit. For example, factor to proposed 72.31a, paragraph 4a: 2 and 3, of the final directives by access to a wind energy facility may be ‘‘the potential impacts, including providing for denial of proposals for authorized under a separate special use fragmentation and habitat abandonment, wind energy facilities in wilderness authorization granting a right-of-way, on important wildlife corridors, large areas and wilderness study areas and in and use of NFS roads may be authorized contiguous habitat areas, or any globally areas authorized for use by the DoD. under a road use permit. See sections unique, rare, or threatened ecosystem or 73.32, paragraph 8, and 75.22, habitat type.’’ 72.31b—Recreation and Scenery paragraph 3, in the final directives. A third respondent recommended Considerations Comment. One respondent suggested revising proposed section 72.31a, Comment. Some respondents doubted including a statement in the general paragraph 4a, to provide for that 400-foot wind turbines could meet considerations section that the direct, consideration in assessing site partial retention standards under the indirect, and cumulative effects of suitability of ‘‘the presence of or habitat Recreation Opportunity Spectrum (ROS) construction of or additions to facilities for federally or State listed protected and Scenery Management System associated with a wind energy project, species, candidates for such protection, (SMS). These respondents were unsure including roads, must be considered in and other species of management about the criteria, timing, and process evaluating wind energy proposals, concern, as defined in section 70.5,’’ for taking into account these visual and regardless of whether these actions will rather than ‘‘the presence of federally recreation standards in making occur on NFS lands. listed fish, wildlife, or rare plant decisions regarding wind energy Response. The Agency does not habitat.’’ facilities. believe it is necessary to include the Response. Without more information, Response. ‘‘Partial retention’’ is an statement suggested by the respondent. the Agency was unable to locate the obsolete term that was used under the Section 74.1 in the final directives letter referenced by the first respondent Visual Management System (VMS),

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47368 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

which predated the SMS. In contrast to proposals and not to processing of wind Response. The Agency agrees that the SMS, the categories in the VMS energy applications. security and safety should be a priority described visual goals. For partial Response. Both paragraphs 1 and 2 at wind energy facilities. However, the retention, the goal was to retain in part referenced by the respondent contain Agency does not believe that it is the visual character of the landscape. guidelines, rather than standards. The appropriate or necessary to guarantee The Agency shifted from the VMS to the qualification ‘‘where possible and to the public access to wind energy facilities SMS (FSM 2380), which is based on extent practicable’’ in paragraph 1 is for purposes of monitoring impacts on scenic integrity, i.e., the current appropriate because it may not always wildlife. The Forest Service’s special condition of the landscape, rather than be possible or practicable to manage use regulations at 36 CFR 251.55(b)(2) visual goals. The Agency found that wind energy uses to protect community confer on the United States, rather than establishment of visual goals under the tourism values associated with natural members of the public, a continuing VMS tended to predetermine the scenery, recreation settings, wildlife right of physical entry to authorized outcome of the planning process. viewing, fishing, and cultural resources. facilities for monitoring purposes. Section 72.21a, paragraphs 1 through Paragraph 2 appropriately directs the The Agency believes that the final 4, in the final directives address the use authorized officer to consider the effects directives provide adequate guidance on of the ROS in screening wind energy of wind energy uses on tourism values avoiding, minimizing, and mitigating proposals. Section 72.21a, paragraph 5, and communities because this section of impacts on wildlife from wind energy in the final directives addresses the use the directives enumerates siting facilities. Specifically, section 75.21, of the SMS in screening wind energy considerations that need to be taken into paragraph 6, of the final directives proposals. account in screening wind energy requires applicants for a permit for Comment. One respondent proposals. Therefore, the Agency has construction and operation of a wind recommended revising proposed section not made the changes suggested by the energy facility to submit a detailed 72.31b, paragraph 2b, which stated, respondent in the final directives. monitoring plan that will become an ‘‘Consider how recreational settings Community tourism considerations appendix to the permit. Section 73.32, could be affected by dust or air quality apply only to screening wind energy paragraph 9, in the final directives impacts,’’ by adding ‘‘during proposals, rather than to evaluation of requires the plan of development that construction or maintenance.’’ wind energy applications, because must be submitted by applicants for a Response. The Agency agrees with community tourism considerations need permit for construction and operation of this comment and has added this phrase to be addressed in connection with a wind energy facility to address to the corresponding provision, section siting wind energy facilities in the potential impacts on existing land uses, 72.21a, paragraph 2b, in the final context of a proposal. This approach is including necessary restrictions on directives. reflected in the heading, ‘‘Siting public use, which should address effects Comment. One respondent Considerations’’ in section 72.31 in the on Federal and State species of recommended including a standard set proposed directives and section 72.21 in management concern and their habitats. of restrictions for wind energy the final directives, both of which Section 75.21, paragraph 6, of the final development for areas that fall into the encompass the section on community directives provides for wildlife most restricted category of visual tourism considerations. Once a wind monitoring before and after construction resource management. energy proposal is accepted as an of a wind energy facility. Per 36 CFR Response. The SMS does not establish application, a site has already been 251.55(b)(3), the Agency may require categories for visual resource determined, and the siting common use of NFS lands authorized management. Rather, the SMS employs considerations as reflected in a site plan for wind energy facilities or allow their scenic integrity objectives, which define (sec. 73.33 in the final directives) are use by others in any way that is not the degree of deviation from the much more specific. inconsistent with the holder’s rights and landscape character that may occur at privileges, after consultation with all 72.31d—Public Access Considerations any given time (FSM 2380.5). Consistent affected parties. with the SMS, section 72.21a, paragraph Comment. One respondent noted that Comment. One respondent noted that 5, in the final directives directs the while security and safety should be a the Forest Service should not allow its authorized officer in screening wind priority for protecting wind energy hiking trails to be used as service roads energy proposals to assess the value of facilities, public access to those for wind energy facilities. This scenery in the project area, the facilities should be guaranteed for respondent stated that the proposed experience it provides relative to monitoring adverse impacts of the directives should address road density competing resource demands, and the facilities on wildlife, either residing at in critical habitat areas. impacts on scenery from project or migrating past the site, and their Another respondent stated that construction and operation. habitat. One respondent stated that the construction of roads for wind energy proposed directives should provide projects causes more ground 72.31c—Community Tourism additional guidance on avoiding, disturbance than construction of typical Considerations minimizing, and mitigating habitat two-track, unpaved Forest Service roads Comment. One respondent stated that abandonment and other impacts of wind and thus has a greater impact on fish community tourism values must be energy facilities, including post- and wildlife. protected and that inclusion of the construction monitoring of those Response. Numerous provisions in phrase, ‘‘where possible and to the impacts. the final directives address access to extent practicable’’ in proposed section Another respondent commented that wind energy facilities, including the 72.31c, paragraph 1, and the word security and safety at wind energy need for and effects and management of ‘‘consider’’ in proposed section 72.31c, facilities would not be benefited by access roads. Section 72.21c in the final paragraph 2, make these criteria more open public access, and that access to directives directs the authorized officer like guidelines than standards. This those facilities should be controlled by to review road management objectives respondent also expressed concern that the permit holder and should be limited for NFS roads and trail management the direction on siting considerations to authorized staff or approved guided objectives for NFS trails (FSM 7714); applies only to screening of wind energy tours. consider the effect of traffic on NFS

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47369

roads and NFS trails needed for does not believe it is appropriate to energy facilities on bats, particularly construction, operation, and establish a standard for assessing effects during their migration and hibernation maintenance of wind energy facilities of wind energy facilities on public periods. These respondents cited on the ability of those roads and trails access to NFS lands. However, the studies that indicate a high risk of bat to meet their management objectives; Agency agrees that more guidance is mortality, especially along Appalachian and consider the effects of extending the needed in this provision with respect to ridges, from wind energy uses and availability of NFS roads that are open management of NFS roads and NFS stated that hibernating bats could be seasonally to year-round use for trails. Consequently, in section 72.21c of susceptible to detonations during wind purposes of maintaining wind energy the final directives, the Agency has energy facility construction. One facilities. added the following: respondent noted that wind energy Section 73.31, paragraph 6, in the Review road management objectives for structures can alter movement patterns final directives requires applicants for a NFS roads and trail management objectives of birds and wildlife and shift their permit for construction and operation of for NFS trails (FSM 7714). Consider the effect distribution. This respondent stated that a wind energy facility to submit a study of traffic on NFS roads and NFS trails needed grassland and shrubland birds in plan that includes an inventory of for construction, operation, and maintenance particular avoid tall structures and can existing infrastructure and resource of wind energy facilities on the ability of be significantly displaced by wind investments such as access roads under those roads and trails to meet their energy structures. the jurisdiction of the Forest Service or management objectives. Consider the effects Another respondent recommended of extending the availability of NFS roads a public road authority. that are open seasonally to year-round use for enumerating in the proposed directives Section 73.32, paragraph 2, in the purposes of maintaining wind energy those areas where there are large final directives requires these applicants facilities. numbers of one or more bird species of to submit a plan of development that management concern. This respondent describes the proposed location and 72.31e—Wildlife, Fish, and Rare Plant noted that micrositing decisions on number of ancillary structures and Considerations wind energy development would facilities, including access roads. Comment. One respondent stated that minimize impacts on birds. Section 73.32, paragraph 5, in the final the proposed directives should be as One respondent stated that decisions directives requires the plan of precise as possible in identifying which regarding turbine placement should take development to address needed road or plant and animal species should be into account species’ foraging strategies trail access and provides for existing considered for each particular and flight patterns, as well as roads to be utilized to the maximum investigation or analytical or monitoring topography, wind patterns, prey extent feasible. Section 73.32, paragraph activity associated with wind energy density, and all seasons of a species’ 8, in the final directives requires the uses. Other respondents expressed habitat, including migratory as well as plan of development to describe concern about harmful effects of wind wintering areas. management requirements necessary for energy development on butterflies and Another respondent recommended safe and reliable operation and big game migration routes. not just avoiding placement of METs in maintenance, including rights-of-way Response. Since the wind energy sensitive habitats, but avoiding for access. directives are national in scope, the placement of METs in locations where NFS trails may be actively managed species that could be impacted by wind they would adversely impact sensitive for more than one mode of travel. energy uses will vary by geographic habitats, including buffer zones. However, under 36 CFR 212.51, Forest region. The proposed and final One respondent wanted the general Service administrative units and ranger directives specifically address bats, considerations in proposed section districts are designating those NFS trails birds, and species of management 72.31a, paragraphs 4, 6, and 7, to apply that are open to motor vehicle use. concern, which is broadly defined in the to proposed section 72.31e. Therefore, whether an NFS trail final directives to include federally Response. The Forest Service is aware managed for hiker/pedestrian use is listed threatened and endangered of potential effects on wildlife from used as an access road for a wind energy species; species that are candidates for wind power development, especially facility would depend at least in part on listing as threatened or endangered; the susceptibility of bats and birds to the trail’s management intent and Forest Service species of concern, collision with wind energy facilities. whether the trail has been designated species of interest, species of high Numerous studies, including those cited for motor vehicle use. When a trail or public interest, and management in section 70.6 in the final directives, segments of a trail encumbering a indicator species; and State-protected document known and potential risks to proposed wind energy facility, this is a species. More specific lists of species birds and bats from wind energy connected action for consideration and species groups will be made at the facilities. The Agency is also aware of during the environmental analysis local level during the scoping process the important role that bats and bird process and trail would be re-routed out for each proposed wind energy facility. play in the health of the human of the proposed project area for the Comment. One respondent stated that environment. safety of hikers/pedestrians. wind turbines in migratory areas do not Accordingly, the Agency has Comment. A number of respondents necessarily pose a risk to avian species expanded the provisions in the final were concerned that the proposed and that migration corridors need to be directives regarding the need for careful language, ‘‘Consider the effects of wind delineated by the Forest Service based evaluation of environmental conditions, energy uses on public access via roads, on scientific studies or evaluated in landscape features, and habitats that trails, and waterways,’’ in proposed project-level avian surveys. This attract concentrations of birds, bats, and section 72.31d sets too low a bar for respondent recommended using other species of management concern. compliance. These respondents believed ‘‘minimize’’ throughout proposed See sections 72.21; 72.21d; 73.31, that a standard should be established for section 72.31e or qualifying the entire paragraphs 1 and 2; 73.4a; and 75.21, assessing effects of wind energy uses on section with the phrase, ‘‘to the extent paragraph 6. In particular, section public access. commercially practicable.’’ 72.21d, paragraph 1, in the final Response. Given the variety of Numerous respondents expressed directives lists examples of protected situations on NFS lands, the Agency concerns regarding the effect of wind and ecologically sensitive areas,

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47370 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

including critical habitat of wildlife facilities in bird or bat migration Response. The Agency believes that protected under Federal or State law; corridors, on the grounds that there is fog and mist can increase avian and bat nests of hawks, eagle, falcons, and owls; insufficient information to indicate that mortality. However, the Agency agrees and prairie or shrub-steppe grouse wind energy projects have significant that the statement in proposed section breeding grounds. Given the diversity of impacts on areas with migratory birds 72.31e, paragraph 2, was too broad. protected and ecologically sensitive and bats. This respondent believed that Consequently, the Agency has qualified areas on NFS lands, the Agency believes these areas should not be off-limits to the statement in corresponding section it is more appropriate to provide wind energy development. Rather, this 72.21d, paragraph 2, in the final examples than to list specific areas. Site respondent believed that wind energy directives to read: evaluations and all other relevant projects in these areas should be Avoid or minimize the placement of wind information needed to evaluate the monitored to determine if they pose a turbines in areas with a high incidence of potential effects of wind energy significant risk to migratory species. frontal weather events that lead to frequent development on species of management One respondent stated that many fog or mist if existing information indicates concern and their habitats will be documented bird migration corridors a high risk to migratory birds or bats during analyzed through the NEPA process. are so broad as to be regional or State- these weather events. The final directives are not intended wide, rather than site-specific, which 73.11a—Wildlife, Fish and Rare Plant to provide a comprehensive list of all makes the reference to ‘‘documented Considerations the potential effects of wind energy bird or bat migration corridors’’ in the development on species of management proposed directives less meaningful. Comment. One respondent suggested concern and their habitats, nor are the Response. Daily or seasonal bat flight that since the guidance in this section final directives intended to identify all pathways may be discovered through was similar to FWS voluntary measures that may be taken to avoid or pre-construction surveys. The Agency guidelines, they should be referenced. mitigate those effects. The intent of the agrees that ‘‘migration corridor’’ is too Response. FWS’s Interim Guidelines final directives is to highlight some of imprecise a term and has removed it to Avoid and Minimize Wildlife Impacts the more widely known wildlife issues from section 72.21d, paragraph 1, in the from Wind Turbines was one of the associated with wind energy final directives. In addition, for clarity, sources used to develop the final development and recommendations for the Agency has included examples of directives. This source is cited in addressing them, primarily regarding protected and ecologically sensitive sections 70.6 and 73.4 in the final susceptibility of birds and bats to aerial areas. As a siting consideration for directives. collisions with wind power facilities species of management concern, this Comment. Some respondents stated such as METs, guy wires, and turbine paragraph now states: that applications for wind energy uses towers and blades. that would have unacceptable impacts The Agency believes that section Locate METs, roads, wind turbines, and on wildlife should be denied and that other necessary facilities away from analysis of cumulative impacts should 72.21d, paragraph 1, in the final protected areas or where ecological resources directives adequately addresses are known to be sensitive to human be emphasized where regional trends for sensitive habitats. This provision directs activities. Examples of such areas include wind energy development have the authorized officers to locate METs, wetlands, riparian zones, streams, lakes, potential to impact migratory roads, wind turbines, and other bogs, or fens; globally unique, rare or populations. necessary facilities away from protected threatened ecosystems; critical habitat of Other respondents suggested speed areas or where ecological resources are wildlife protected under Federal or State law; limits for motor vehicles to minimize known to be sensitive to human nests of hawks, eagle, falcons, and owls; and wildlife mortality; addressing migratory prairie or shrub-steppe grouse breeding patterns of all species that may be activities and lists specific examples of grounds. these areas. impacted, including big game; Proposed section 72.31a (sec. 72.21 in As currently written, this provision addressing the impacts on entire the final directives) addresses general does not provide for blanket avoidance populations, not just individual considerations associated with siting of birds and bats. Rather, this provision animals; and providing barriers or wind energy uses at the proposal stage. states that METs, roads, wind turbines, adding humanly inaudible sirens or Proposed sections 72.31b through and other necessary wind energy whistles to divert wildlife from rotor 72.31e (sec. 72.21a through 72.21e in facilities should not be installed in blades. the final directives) address specific protected areas or where ecological Response. Several provisions in the considerations associated with siting resources are known to be sensitive to final directives address potential effects wind energy uses at the proposal stage. human activities. To address the on wildlife, including cumulative Comment. One respondent stated that problem of funneling migrants, the effects, at the application stage. Section there are no known bat migration Agency has added the following to 73.4a, paragraph 7, directs authorized corridors. Another respondent section 72.21d in the final directives: officers to ensure that applicants assess commented that ‘‘migration corridor’’ is Avoid or minimize the placement of wind effects on wildlife, as applicable, and too broad a term for purposes of turbines in areas where topography and lists specific items that at a minimum proposed section 72.31e, which this landscape features may funnel nocturnal should be considered in assessing these respondent believed appears to provide migrants, such as over mountain passes, effects. Section 73.4a, paragraph 8, for blanket avoidance of birds and bats. along river corridors, or ridge tops. directs authorized officers to ensure that This respondent noted that bird and bat Comment. One respondent applicants consider the effects of collisions with wind turbines are more commented that it was inappropriate to proposed wind energy uses on bats and likely where birds and bats are within recommend categorically that areas of birds that are continental migrants, the height range of the turbines or fog and mist be avoided, given the lack semi- or regional migrants, or year- funneled along geographical features in of scientific evidence that wind energy round residents; habitat use and the vicinity of the turbines. development in those areas results in requirements; seasonal use; and Another respondent objected to the higher avian or bat mortality or that bat migration activity. Section 73.4a, statement in the proposed directives to navigation is disrupted by mist and fog paragraph 9, directs authorized officers avoid locating METs and wind energy or guy wires on METs. to ensure that applicants include in

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47371

their assessment of direct, indirect, and address the potential for bird and bat Several respondents suggested cumulative effects on migrant birds and collisions. Section 73.2 in the final strengthening direction in section bats all factors routinely assessed for directives states: 73.11a, paragraph 4, in the proposed resident species, including To reduce bat and bird mortality, require directives to avoid, minimize, or susceptibility to mortality from collision applicants to avoid the use of guy wires on mitigate the potential for bird and bat with or electrocution from proposed METs, if feasible. If applicants propose to use collisions by configuring wind turbines project facilities and seasonal variation guy wires, require applicants to mark them to avoid landscape features known to in the effects that construction or with bird-deterrent devices when possible attract migrating wildlife. Several operation of wind energy facilities may (see ‘‘Suggested Practices for Raptor respondents suggested adding the word have on these species. Protection on Powerlines: The State of the ‘‘fully’’ prior to ‘‘mitigate’’ so that it is The Agency does not believe it is Art in 1996,’’ as updated in 2000). To reduce clear that mitigation will be necessary or appropriate for the final potential effects on scenery, require applicants to limit the height of METs to a comprehensive and complete. With directives to establish a speed limit for functional minimum. respect to the qualification to avoid, motor vehicles accessing wind energy minimize, or mitigate the potential for uses; to address migratory patterns of all With respect to the type and height of bird and bat collisions if site studies species that may be impacted; to turbine towers, section 73.4a, paragraph show that placing wind turbines in that address potential impacts on entire 5, in the final directives directs location would have adverse impacts, wildlife populations; or to require authorized officers to ensure that one respondent stated that the proposed applicants to provide barriers or add applicants design wind energy directives must specify how these humanly inaudible sirens or whistles to structures, including utility poles and studies would be utilized in site design, divert wildlife from rotor blades. These wires, to discourage perching or nesting evaluating wind energy applications, issues are more appropriately handled by birds. wind energy operations, wildlife generally in the final directives (see sec. Comment. Some respondents noted monitoring, and mitigation of adverse 73.32, para. 8, governing road that the direction in proposed section effects on wildlife. management objectives, and sec. 73.4a, 73.11a, paragraph 2, to locate placement Another respondent recommended paras. 4, 5, 8, and 9, governing of wind turbines, roads, and ancillary that the Forest Service adopt the avoidance of bird and bat collisions and facilities in the least environmentally published, updated Avian Power Line other effects on wildlife) and addressed sensitive areas does not take into Interaction Committee (APLIC) as needed in greater specificity case by account where the wind resource is guidelines to minimize electrocutions case. located and other engineering realities. and collisions by avian species. Comment. Several respondents stated These respondents also expressed Response. Resident species are that the direction in proposed section concern regarding the lack of a included in the definition of species of 73.11a, paragraph 1, to avoid use of guy definition for the term ‘‘the least management concern in section 70.6 in wires on METs would result in greater environmentally sensitive areas.’’ the final directives. In addition, section resource impacts due to the need to Other respondents suggested that 73.4a, paragraph 8, in the final construct a larger concrete foundation ‘‘environmentally sensitive areas’’ directives directs the authorized officer for METs. These respondents also stated should include grassland habitats, to consider the effects of proposed wind that the direction to avoid guy wires on shrublands, prairies, shorelines, cliffs, energy uses on bats and birds that are METs ‘‘to the maximum extent estuaries, old growth forests, aspen year-round residents and their habitat possible’’ was too qualified to permit stands, talus, and wildlife breeding, use and requirements. assessment of resource impacts brooding, and roosting areas and that The Agency agrees that the statement associated with the use of a larger habitat fragmentation, climate change in proposed section 73.11a, paragraph 3, concrete foundation for METs. adaptability, and avoidance and other was too broad. Consequently, the Several respondents suggested behavioral impacts on species sensitive Agency has removed the phrase ‘‘to the revisions to the provision requiring from the presence of vertical structures maximum extent possible’’ from avoidance of guy wires on METs to the should be considered. corresponding section 72.21d, maximum extent possible. One Response. In response to these paragraph 2, in the final directives. respondent suggested requiring the use comments, in the final directives, the The Agency has revised the final of bird flight diverters or markers on Agency has replaced ‘‘locate wind directives to remove site studies as a taller METs when guy wires are turbines, roads, and ancillary facilities precondition for avoiding, minimizing, necessary. Another respondent stated in the least environmentally sensitive and mitigating the potential for bird and that minimizing the height of METs areas, such as away from’’ with ‘‘locate bat collisions with wind turbines. would reduce the necessity for guy wind turbines, roads, and ancillary Specifically, section 73.4a, paragraph 3, wires and lights and the potential for facilities away from protected and in the final directives states: bird and bat collisions. One respondent sensitive areas such as.’’ In addition, the Avoid, minimize, or mitigate the potential recommended the use of monopole over Agency has added more examples of for bird and bat collisions by configuring lattice towers to reduce the potential for protected and sensitive habitats. wind turbines to avoid natural and man- collisions and perching. One respondent Comment. One respondent stated that made landscape features and habitats known noted that tower height seems to have guidance in proposed section 73.11a, to attract or concentrate wildlife, particularly a direct effect on bat mortality and paragraph 3, to avoid areas with a high if site surveys demonstrate that such suggested encouraging the use of shorter incidence of fog and mist should not be placement would create adverse impacts. turbine towers, consistent with rotor limited to protecting birds and bats Section 73.4a, paragraphs 3a and 3b, size. during migration, but should also enumerate factors relevant to the Response. In response to these include resident birds and bats. Another consideration of the potential for bird comments, the Agency has replaced the respondent suggested removing the and bat collisions. The Agency has phrase ‘‘to the maximum extent phrase ‘‘to the maximum extent declined to add the word ‘‘fully’’ before possible’’ with the phrase ‘‘if feasible’’ possible’’ with regard to avoiding ‘‘mitigate’’ because it would be difficult in the final directives. The Agency has placement of wind turbines in areas to show full mitigation of the potential made other revisions to this provision to with a high incidence of fog and mist. for bird and bat collisions.

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47372 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

In addition, in assessing effects of Response. There may be situations One respondent recommended using proposed wind energy uses on species where it is not possible to bury utility a 10-mile radius for non-sensitive of management concern, paragraphs 6a and distribution lines. Therefore, the landscapes and a 20-mile radius for and 6b direct the authorized officer to Agency has retained the phrase ‘‘where mountain ridgelines and other sensitive consider site climate and weather possible’’ in section 73.4a, paragraph 6, landscapes in analyzing visual impacts patterns, facility footprint, configuration in the final directives. In these of wind energy facilities. This of the facility within the landscape, and situations, aerial distribution lines may respondent also wanted the visual potential impacts on species migrating be appropriate. Both the proposed and impact of wind energy projects on to or dwelling in the proposed project final directives direct the authorized wilderness and other restricted areas to area, as well as the presence or officer to use existing utility corridors be taken into account and to meet the proximity of natural and man-made and structures to the extent practical scenic integrity objectives for those landscape features and habitats that and to avoid development of new areas. In addition, this respondent attract, congregate or concentrate infrastructure. recommended requiring visual wildlife. Section 73.32, paragraph 7, in the simulations prior to approval of wind The Agency used the APLIC final directives addresses control of energy uses. guidelines in developing the guidance invasive species in the plan of Response. Section 73.4b, paragraph 2, in section 73.4a, paragraph 3, in the development. Section 77.3, paragraphs 1 of the final directives requires final directives regarding avoidance of and 2, in the final directives address authorized officers to ensure that bird and bat collisions. Section 73.4a, control of invasive species during applicants consult a variety of sources paragraph 4, directs authorized officers construction and site restoration after in planning, designing, and siting wind to ensure that applicants use the 2006 construction of a wind energy facility. energy structures and facilities, APLIC recommendations for design of 73.11b—Scenery Management including USDA Handbook #701 above-ground lines, transformers, and (Landscape Aesthetics), FS–710 (The Comment. One respondent stated that conductors. All applicable APLIC Built Environment Image Guide for the although it is impossible to mitigate all guidelines may be used during project- National Forests and Grasslands), and of the visual impact of wind energy specific environmental analysis. In FSM 2380, which contains the SMS. projects, thoughtful siting and use of addition, the Agency has included the best practices can greatly reduce the The SMS establishes 3 levels of APLIC guidelines as a reference in impact. This respondent suggested observer distance zones: the foreground, section 70.6 in the final directives. referencing BLM’s Instruction middle ground, and background. The Comment. One respondent suggested Memorandum No. 2005–069, ‘‘Interim background includes areas seen from 4 changing ‘‘to discourage use as perching Offsite Compensatory Mitigation for Oil, miles to the horizon. Consistent with or nesting substrates’’ to ‘‘discourage Gas, Geothermal and Energy Right-of- the SMS, section 73.4b, paragraph 1, in use as roosting or nesting substrates’’ in Way Permits,’’ regarding micrositing the final directives requires authorized paragraph 6, since bats roost, rather than and suitability of wind energy projects. officers to ensure that applicants perch. Response. The Agency agrees and has integrate wind turbine strings and Response. The Agency has not made included this reference in section 70.6 design into the surrounding landscape, this change, since there is no indication in the final directives. considering the scenic integrity that bats roost on wind energy Comment. Several respondents objectives of the applicable land substrates. objected to the requirement in proposed management plan, and where the scenic Comment. Respondents generally section 73.11b, paragraph 2, for integrity objectives may not be met, to supported burial of utility lines applicants to integrate wind turbine ensure that applicants consider offsite provided for in proposed section 73.11a, arrays and design into the surrounding mitigation opportunities. When scenic paragraph 7. Some respondents landscape. These respondents believed integrity objectives are established, suggested removing the phrase ‘‘where that scenery management decisions wilderness and other special areas are possible’’ in connection with burial of regarding wind energy projects should considered. The final directives provide utility and distribution lines to be based on professional judgment for visual simulations in sections 73.32, minimize visual disturbance and regarding whether a particular facility paragraph 12, and 73.4b, paragraph 1b. impacts on wildlife. Other respondents will (a) Result in undue harm to Comment. With regard to the noted the need for aerial distribution valuable aesthetic resources in a provision regarding limiting the height lines over sensitive or rare habitat, particular setting; (b) significantly of METs in proposed 73.11b, paragraph where the effects on wildlife from degrade scenic resources; (c) visually 1, one respondent suggested defining ground disturbance would be greater degrade an area valued for its wildness the phrase ‘‘proper functioning’’ or than the effects on wildlife from use of and remoteness; and/or (d) be at a scale, replacing it with ‘‘for accurate aerial distribution lines. in terms of wind turbine height or measurement of wind speed and One respondent recommended number of turbines, that overwhelms direction.’’ replacing the phrase ‘‘to lessen impacts the landscape. Response. The Agency has not and disturbance to wildlife’’ with One respondent suggested that the included this provision in the final ‘‘when such action would reduce rather Forest Service balance any potential directives. that increase ecological impacts.’’ This aesthetic impacts with the Comment. With respect to proposed respondent also recommended adding environmental benefits of a wind power section 73.11b, paragraph 2, one the following sentence: ‘‘Ensure that project in terms of reducing global respondent questioned whether original soils and native vegetation are warming and emissions. ensuring that applicants consider restored to their original condition One respondent asked whether turbine clustering would undermine following any burial of utility and proposed section 73.11b, paragraph 5, wind energy projects from an transmission lines and that adequate provides for meeting scenic integrity engineering and financial standpoint. measures are taken to preclude the objectives or merely enumerates sources Another respondent suggested removing colonization and/or spread of invasive that may be consulted in connection the phrase ‘‘where appropriate’’ in species.’’ with that goal. connection with this direction.

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47373

The second respondent also suggested applicants avoid placing substations or provisions require authorized officers to specifying key design elements, large buildings at high elevations and ensure that applicants restrict noise to including visual uniformity, use of along skylines that are visible to the 10 decibels above background noise tubular towers, the proportion and color public should apply to wind turbines as levels, when possible, at nearby of wind turbines, and the prohibition of well. These respondents also stated that residences and campsites, in or near commercial messages; using rigorous any direction regarding the location, habitats of wildlife known to be viewshed mapping, photographic and design, or concealment of electrical sensitive to noise during reproductive, virtual simulations, computer substations should note that the first roosting, or hibernation, or where simulations, and field inventory priority with regard to these structures habitat abandonment may be an issue. techniques that illustrate sensitive and is safety. These provisions also require scenic viewpoints and that show with Response. The Agency has not authorized officers to ensure that reasonable accuracy the visibility of expanded this provision, which appears applicants provide for comparisons of proposed wind energy facilities; in section 73.4b, paragraph 3, in the noise measurements of planned prioritizing elimination or reduction of final directives, to apply to wind equipment during wind turbine lighting, consistent with FAA turbines. Each wind energy project will operation with background noise levels requirements, e.g., through use of light- be analyzed at the site-specific level, in the project area over a 24-hour colored wind turbine generators; and it may or may not be appropriate to period. designing and configuring wind place wind turbines at highly visible Comment. Some respondents turbines to provide visual order among elevations or along skylines that are suggested removing the words ‘‘when clusters of turbines; designing and visible to the public. Safety is addressed possible’’ and ‘‘where possible’’ from configuring rotor blades, nacelles, and in section 73.32, paragraphs 6 and 8, in proposed section 73.11c and revising turbine towers to create visual the final directives. proposed paragraph 2a to require uniformity in their shape, color, and Comment. One respondent suggested restriction of noise to 10 decibels above size; and properly maintaining wind adding a cross-reference in proposed background noise levels at nearby turbine generators. section 73.11b, paragraph 7, regarding residences and campsites and in Response. In section 73.4b, paragraph burial of distribution lines for scenery wildlife habitat. Other respondents 1, in the final directives, the Agency management, to proposed section believed that in the vicinity of replaced the sentence, ‘‘Where 73.11a, paragraph 7, regarding burial of residences, hiking trails, and appropriate, consider turbine distribution lines for wildlife campgrounds, even 10 decibels above clustering,’’ with the sentence, ‘‘Where management. This respondent also background noise levels is SIOs may not be met, consider off-site suggesting qualifying the requirement in unacceptable, especially at night. Two mitigation opportunities.’’ proposed section 73.11b, paragraph 7, respondents suggested that the proposed The Agency agrees with the other with the phrase ‘‘where feasible.’’ directives provide for measurement of changes suggested by the second Response. The Agency does not and limitations on infrasound (low respondent and has incorporated them believe that a cross-reference in frequency noise inaudible to humans) in section 73.4b, paragraph 1, in the proposed section 73.11b, paragraph 7 and high frequency sound. Other final directives. (sec. 73.4b, para. 4, in the final respondents commented that the noise Comment. One respondent suggested directives) is necessary. However, to be level in this provision was impossible to that the environmental analysis for consistent with the provision regarding measure and recommended a fixed wind energy facilities should address burial of distribution lines for wildlife limit, such as 50 decibels, near visual impacts resulting from air management in section 73.4a, paragraph residences, critical habitat, and pollution and additional transmission 6, in the final directives, the Agency has campgrounds. These respondents also lines from fossil fuel power plants. This qualified section 73.4b, paragraph 4, in suggested setting a fixed decibel level at respondent stated that the proposed the final directives to state: ‘‘Where a fixed distance from wind turbines, as directives should provide for possible, bury utility and distribution prescribed in the corresponding consideration of the views of a lines to minimize visual disturbance.’’ environmental analysis. These representative sample, rather than a In addition, the Agency has added a respondents noted that acoustic vocal minority, of people visually paragraph regarding consideration of shielding is already included on wind impacted by wind energy projects. SIOs in the location, design, and turbines and therefore suggested Response. NEPA requires assessment construction of the power line revising proposed paragraph 2c, which of site-specific effects. The level of connecting a wind energy project to the provided for minimizing wind turbine analysis required will vary depending energy grid. noise through the use of acoustic on site-specific circumstances. After a shielding in nacelles and associated wind energy proposal passes screening 73.11c—Noise Management facilities, if technologically feasible. and is accepted as an application, the Comment. One respondent noted that Response. The Agency does not Agency will analyze its effects medical studies have shown many believe it would be appropriate to consistent with NEPA. In preparing an adverse effects on nearby residents from establish specific noise restrictions in EA or EIS, the Agency examines the the sounds and shadows from wind the final directives because the cumulative effects of the proposal turbine blades. appropriate level of noise restrictions is (including past, present, and reasonably Response. The proposed and final a site-specific decision that needs to be foreseeable future actions) on the directives (proposed section 73.11c) and based on local conditions. Section affected environment, per 36 CFR final section 73.4c require authorized 73.4c, paragraph 2, in the final 220.4(f). If an EA or EIS is required, the officers to ensure that applicants directives provides for minimizing the Forest Service will seek public input in minimize noise where possible and amplitude of wind turbine and connection with the environmental practical and, if possible and practical, associated generator noise using analysis. minimize the amplitude of wind turbine available noise dampening technologies, Comment. Some respondents believed and associated generator noise using rather than acoustic shielding. Ten that the direction in proposed section available sound dampening decibels above the background noise 73.11b, paragraph 6, to ensure that technologies. In particular, these level was selected based on FWS’s

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47374 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Interim Guidelines on Avoiding and 5 turbines with duel red–strobe lights Response. Like the proposed Minimizing Wildlife Impacts From on the top of the nacelles of marked directives, the final directives require Wind Turbines. The Agency believes it turbines and that under no circumstance the authorized officer to ensure that is not necessary to address infrasound should L–180 lights be used. Section applicants for a permit for the and high frequency sound in this 73.11d in the proposed directives and construction and operation of a wind context. section 73.4d in the final directives are energy facility submit a study plan (sec. Comment. One respondent noted that consistent with these guidelines. In 73.31), plan of development (sec. 73.32), the noise level from construction of addition, section 73.4d, paragraph 2, in and site plan (sec. 73.33). These wind energy facilities would be harmful the final directives directs authorized documents must take into consideration to and could drive away wildlife that officers to ensure that, unless otherwise placement of and site disturbance from would not later return. required by the FAA, applicants use the proposed wind turbines, facilities, Response. Section 75.21 in the final minimum intensity and maximum ‘‘off’’ access roads, trails, utility corridors, and directives requires applicants to submit phase (i.e., 20 flashes per minute) that other facilities. a monitoring plan prepared in effectively marks the facility boundary Section 77.4, paragraph 8, in the final consultation with the authorized officer and turbines within the project site, directives directs authorized officers to that will become part of the permit for making the facility visible to pilots at ensure that holders of wind energy construction and operation of a wind night. The Agency has included a permits use results from multi-year energy facility. Section 75.21, paragraph reference to the FWS guidelines in monitoring to adjust operations to 6a, in the final directives lists as an item section 70.6 of the final directives. mitigate or eliminate impacts on species that may need to be addressed in the of management concern and their monitoring plan the effects of wind 73.12—Public Outreach habitats, while still achieving the energy turbine construction and operation on Comment. Several respondents production objectives for the facility. species of management concern and recommended changing ‘‘ensure that their habitats. applicants consider conducting public 73.21—Study Plan meetings’’ to ‘‘ensure that applicants Comment. One respondent stated that 73.11d—Lighting conduct public meetings.’’ One the purpose and timing of the study Comment. Some respondents believed respondent believed that this provision plan were unclear and that the proposed that any flashing lights on top of 400- was redundant, since public meetings directives required applicants to gather foot towers would be a source of light were already included in the NEPA environmental information for the study pollution and that any high-intensity process. Another respondent noted that plan that should be collected later in the lighting should be turned off unless the proposed directives should address NEPA process. This respondent also needed for specific tasks. These public education, as well as public noted that the Forest Service already has respondents also recommended that the outreach, regarding wind energy uses on inventories of improvements, resources, proposed directives include a statement NFS lands. and existing conditions and that compliance with FAA requirements Response. The Agency does not management plans and that applicants cannot be used to justify a failure to believe it is appropriate or necessary to should not be responsible for updating meet scenic integrity objectives. ensure that applicants conduct public or duplicating this work. Response. The Agency has clarified meetings. Proposed section 73.12 (sec. Response. The requirements in requirements regarding lighting for 73.5 in the final directives) addresses section 73.21 in the proposed directives wind energy facilities. For example, public outreach conducted by (section 73.31 in the final directives) are proposed section 73.11d directed applicants. Therefore, proposed section necessary for the authorized officer to authorized officers to ensure that 73.12 does not duplicate public evaluate wind energy applications fully applicants use the minimum amount of meetings conducted by the Forest during environmental analysis. The warning lights required by the FAA. Service during the NEPA process. inventories and other information Section 73.4d in the final directives Public meetings conducted by the Forest compiled in the study plan are specific directs authorized officers to ensure Service during the NEPA process may to each proposed use and relate to that, unless otherwise required by the be educational. assessment of potential impacts on FAA, applicants mark approximately 1 wildlife, other uses, and valid 73.2—Application Requirements for a in 5 turbines with duel red-strobe lights outstanding rights. Permit for Construction and Operation on the top of the nacelles of marked Comment. Several respondents of a Wind Energy Facility turbines and that under no circumstance recommended the following changes to should L–180 lights be used. Section Comment. One respondent stated that proposed section 73.21: (1) In the 73.4b addresses scenic integrity the proposed directives were introductory paragraph, changing the objectives in the context of disconnected from how wind energy phrase ‘‘submit a study plan which authorization of a wind energy facility. projects are actually financed and enumerates and provides a brief Comment. Several respondents developed. For example, the proposed description of the methodologies for the supported FAA and FWS guidelines directives allowed the Agency to require studies required’’ to ‘‘submit a study providing for use of red strobe lights for that wind turbines be moved after a plan which specifies and describes the wind energy facilities. These project is already in operation. This methodologies and studies required;’’ respondents recommended that only the respondent believed that the possibility (2) requiring submission of actual minimum number and intensity of of required wind turbine relocation studies and underlying data, and stating strobe lights be used and suggested would preclude financing of wind that the studies described in the study including a reference to the FWS energy projects. The respondent stated plan must, rather than should, enable guidelines at http://www.fws.gov/ that to avoid unnecessary administrative the authorized officer to evaluate the migratorybirds/issues/towers/ costs, the proposed directives should application fully during environmental comtow.html in the proposed directives. encourage the use of private sector analysis; (3) in proposed paragraph 2, Response. The FAA and FWS practices and standardization of adding a reference to duration and guidelines regarding wind energy uses commercial terms and conditions in timing in connection with the presence recommend marking approximately 1 in wind energy permits. of certain species, critical habitats, or

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47375

other important habitat features; (4) in ensure before issuance of a permit for The Agency believes it is feasible and proposed paragraph 6, changing ‘‘an construction and operation of a wind necessary for a plan of development to inventory of improvements and resource energy facility that applicants have contain photo-realistic visual investments, such as distribution lines, submitted a study plan that includes simulations depicting all proposed wind powerlines and other utilities, access survey outcomes from site testing and energy facilities, not just wind turbines, roads, reforestation, restoration, wildlife feasibility studies. and has therefore not revised section habitat structures, and fencing’’ to ‘‘an Similar to proposed section 73.21, 73.32, paragraph 12, in the final inventory of facilities, such as power paragraphs 1 and 2, section 73.31, directives. lines and other utilities and resource paragraphs 1 and 2, in the final Section 75.21, paragraph 2, in the management activities such as directives require study plans to proposed directives and section 75.21, reforestation, restoration, habitat include: paragraph 3, in the final directives structures and fencing’’; (5) in proposed provide for revision of a plan of paragraph 7, changing ‘‘an inventory 1. A review of existing information development, as appropriate, based on and assessment of the existing project regarding identified species of management environmental analysis of a wind energy concern, including habitat use, location, or area’’ to ‘‘an inventory and assessment presence in the study area, and identification application. Section 75.21, paragraph 3, of the proposed project area’’; and (6) in of ecologically sensitive areas in or near the in the final directives requires a plan of proposed paragraph 8, after ‘‘a review of study area, including landscape and development to be included as an land ownership records,’’ adding ‘‘and topographical features known to attract or appendix to a permit for construction evidence of easements or negotiations concentrate birds or bats; and operation of a wind energy facility. for access to private inholdings.’’ 2. Identification of information and The Agency has changed the word Other respondents suggested referring methods by which to gather information for ‘‘should’’ to ‘‘must’’ to ensure that the specifically to habitat mapping; raptor the development of biological assessments specifications are met in a plan of nest surveys; general avian use surveys; and evaluations of project-specific species of development in section 73.32, and wildlife impacts, including loss, management concern and their habitats; paragraphs 5, 7, 11a, and 11b. modification, fragmentation, and The Agency believes that these With regard to access to wind energy abandonment of forest, grassland, and provisions are broad enough to facilities, the Agency has added a sage-steppe habitat, increase in edge, encompass habitat mapping, raptor nest reference to the width of roads, in potential increase in nest parasitism and surveys, general avian use surveys, and addition to their number and length, in predation, potential for reduced nesting wildlife impacts and that it is not proposed section 73.22, paragraph 5 and breeding densities, attraction to necessary to reference these studies (sec. 73.32, para. 5, in the final modified habitats, and other potential specifically in the final directives. directives). The Agency has revised effects on wildlife behavior. proposed section 73.22, paragraph 6 Response. In response to these 73.22—Plan of Development (sec. 73.32, para. 6, in the final comments, the Agency has revised the directives) to specify that a plan for Comment. Some respondents were introductory paragraph to proposed security of wind energy facilities and unsure of the meaning and intent of section 73.21 (sec. 73.31 in the final equipment must address fire protection proposed section 73.22, paragraph 9, directives) to require study plans to and spill prevention, containment, and which addressed proposed alteration of provide a brief description of the studies cleanup. In addition, the Agency has existing uses. With respect to proposed required for processing the application, expanded proposed paragraph 6 to section 73.22, paragraph 13, which including the methodologies to be used require the site plan to address required photo-realistic simulations of in needed studies. In addition, the emergency repair and scheduled all wind energy facilities, one Agency has revised proposed section equipment replacement and has revised respondent stated that it would be 73.21, paragraph 7 (sec. 73.31, para. 7, proposed paragraph 10 to require that impractical to prepare photo-realistic in the final directives) to require study reclamation plan provide for removal of simulations other than for wind plans to include an inventory and foundations, roads, and associated turbines. This respondent also noted assessment of the landscape using the infrastructure; re-vegetation using native that proposed section 73.22 should SMS or an alternate visualization species; invasive species control; and provide for a preliminary plan of technique suitable for assessing restoration of the project area upon development as part of an application potential impacts on scenery. The termination of the authorized use. Agency has revised proposed section and a revised plan of development that 73.21, paragraph 8 (sec. 73.31, para. 8, includes mitigation measures identified 73.23—Site Plan in the final directives) to require study in the NEPA decision document for the Comment. With respect to the plans to include a review of land project. Another respondent requested introductory paragraph for proposed ownership records, noting any valid that ‘‘should’’ be changed to ‘‘must’’ in section 73.23, respondents outstanding rights, including mining paragraphs 5, 7, and 11. recommended requiring the authorized claims and land use authorizations. Response. In response to these official to consult with the applicant, With respect to submission of actual comments, the Agency has clarified rather than advising the applicant to data, as opposed to descriptions of proposed section 73.22, paragraph 9 consult with the authorized officer, studies, section 74.3 in the final (sec. 73.32, para. 9, in the final during preparation of the site plan to directives directs authorized officers to directives) by removing the reference to ensure that it is adequate. require applicants for a permit for the relationship of proposed alteration One respondent stated that it would construction and operation of a wind of existing uses to management be impractical to provide the exact energy facility to submit sufficiently objectives for the site and associated location and number of all wind detailed wind energy data to support restrictions on uses. The final directives turbines, as required by proposed environmental analysis of the require a plan of development to section 73.23, paragraph 1. This application and to allow evaluation of address proposed alteration of the respondent believed that the Agency the proposed development. In addition, project area and potential impacts on should give applicants the flexibility to section 75.4, paragraph 2, in the final existing land uses, including necessary propose the maximum number of wind directives directs authorized officers to restrictions on public use. turbines supported by predetermined

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47376 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

areas that have been studied and cleared rather than should, occur over multiple Federal and State laws and regulations for that purpose. days and nights and across multiple regarding wildlife, fish, and rare plants. Response. The Agency agrees that the seasons to account sufficiently for It would be inconsistent with Forest authorized officer must consult with spatial and temporal variation in Service directives to provide that applicants during preparation of a site wildlife activity. impacts on wildlife from proposed wind plan to ensure that wind energy projects Response. Section 73.4a of the final energy uses must be biologically are adequately described and has directives addresses seasonal and significant to be addressed during revised section 73.33 in the final spatial variation in wildlife activity in environmental analysis. The Agency directives to reflect that intent. connection with wind energy facilities. addresses the significance of any The Agency believes that it is feasible In particular, section 73.4a, paragraph 8, potential environmental effects of and necessary to show the location of all in the final directives requires proposed uses on a site-specific basis proposed facilities, including wind authorized officers to ensure that during the NEPA process in accordance turbines, in the site plan and has applicants for a permit for the with applicable law. To reinforce this therefore retained this requirement in construction and operation of a wind point, the Agency has added a statement section 73.33, paragraph 1, of the final energy facility consider the effects of in section 74.1 in the final directives directives. proposed wind energy uses on bats and that environmental analysis for wind birds that are continental migrants, energy applications must comply with 74—Requirements for Processing Wind semi- or regional migrants, or year- Energy Applications Agency NEPA procedures at 36 CFR round residents; habitat use and part 220 and FSH 1909.15 and should Comment. One respondent suggested requirements; seasonal use; and be commensurate with the activities stating that teams reviewing wind migration activity. In addition, section proposed and potential effects energy applications should have 73.4a, paragraph 9, in the final anticipated. experience and training in wind energy. directives requires authorized officers to The Agency has revised proposed Response. The Agency typically ensure that applicants for these permits sections 73.11a through 73.11d utilizes a range of resource specialists in include in assessment of direct, indirect, governing wildlife, scenery, noise, and reviewing special use applications, and cumulative effects on migrant birds lighting management (sec. 73.4a through including those with experience and and bats all factors routinely assessed 73.4d in the final directives); 73.12 training in special uses, environmental for resident species, including governing public outreach (sec. 73.5 in analysis, and, as needed, wildlife and susceptibility to mortality from collision the final directives); and 74.1 governing other areas of expertise. The expertise with or electrocution from proposed wildlife management (sec. 73.4a in the needed generally is based on the effects wind energy facilities and seasonal final directives) to clarify that they of the proposed use on existing variation in the effects that construction apply only to applications for permits conditions and therefore does not tend or operation of wind energy facilities for construction and operation of a wind to vary based on the type of the may have on these species. energy facility, not to applications for proposed use. Therefore, the Agency Comment. Some respondents noted site testing and feasibility permits. does not believe it would be appropriate that to be consistent with the way the to state that those reviewing wind Agency analyzes the effects of other Comment. Some respondents energy applications should have proposed uses on wildlife, the effects of suggested that the amount of baseline experience and training in wind energy. proposed wind energy uses on wildlife data required on wildlife impacts Both the teams reviewing applications must be biologically significant to be should be determined on a project- and the authorized officer can consult as addressed in environmental analysis. specific basis. These respondents needed with those who have that Additionally, these respondents believed that reliance on anecdotal training and experience. believed that proposed section 74.1 was models or wildlife assumptions would overly restrictive with respect to site result in information of little utility in 74.1—Effects on Species of Management testing and feasibility permits and assessing impacts on birds and bats and Concern recommended a 30-day environmental therefore recommended that Comment. One respondent stated that review period for site testing and scientifically rigorous surveys of avian the proposed directives should feasibility permits, as in BLM’s policy. and bat use be conducted prior to encourage wind energy developers and Response. The final directives are construction of wind energy projects. the Forest Service to comply with entirely consistent with the way the Response. Several provisions in the applicable State wildlife laws. Agency analyzes the effects of other final directives provide for acquiring Response. The final directives provide proposed uses on wildlife. Section baseline data on wildlife impacts, for compliance with all applicable 73.4a, paragraph 1, in the final conducting additional surveys, and Federal and State law concerning directives requires the authorized officer implementing a monitoring program. wildlife and their habitats, including to ensure that applicants for a permit for Section 72.1 provides for identification NEPA and the ESA. In particular, construction and operation of a wind of potential information needs at the section 73.4a, paragraphs 1 and 2, energy facility develop biological pre-proposal meeting. In particular, require authorized officers to ensure evaluations and assessments for Forest paragraph 2c states: ‘‘Identify that applicants for a permit for Service sensitive species and federally environmental or cultural resource construction and operation of a wind designated threatened, endangered, and analyses that may be required.’’ Section energy facility comply with all Federal candidate species that meet the 73.1, paragraph 1, requires coordination and State laws and regulations regarding requirements of FSM 2670, and, if with Federal, State, and tribal agencies, wildlife, fish, and rare plants. Section needed, conduct consultation pursuant which will result in identification of 74.1 addresses environmental analysis to Section 7 of the ESA. Section 73.4a, site-specific information needs. Section of wind energy applications. paragraph 2, in the final directives 73.31 lists the types of baseline data that Comment. One respondent stated that requires the authorized officer to ensure are needed to prepare a study plan. In peer-reviewed guidelines and that applicants for a permit for addition, FSH 2609.13, Wildlife recommendations must, rather than construction and operation of a wind Monitoring and Wind Energy Facilities, should, be used and sampling must, energy facility comply with all other enumerates the requirements for

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47377

collecting additional information under 74.2—Applications Involving Lands effects and therefore does not preclude a monitoring plan. Under the Jurisdiction of Multiple consideration, as appropriate, of those Comment. In proposed section 74.1, Agencies effects in siting wind energy uses and evaluating wind energy applications. paragraph 1, in the absence of intensive Comment. Some respondents Environmental and aesthetic survey efforts, one respondent suggested recommended adding a reference to considerations are addressed in sections considering each potentially affected FWS, the National Park Service, and State fish and wildlife agencies in the 72.21a, 72.21d, 73.4a, 73.4b, and 74.1 of species with range overlaps in the the final directives. proposed area as potentially affected, first paragraph of proposed section 74.2. rather than as present in the area. In One respondent suggested providing for 74.3—Proprietary Information addition, in proposed section 74.1, investigations, hearings, and Comment. One respondent paragraph 2, this respondent suggested proceedings conducted jointly by the commented that only summaries of adding that structural measures, such as Forest Service and other Federal and wind inventory data, rather than actual shielding exposed electrical lines and State agencies. data, should be required in site testing Another respondent stated that installing perch guards, are the best way and feasibility studies on the grounds proposed section 74.2 improperly to reduce the likelihood of electrocution that wind data are sensitive commercial focuses on activities taking place information that should not be made of birds and bats. Another respondent primarily on NFS lands and fails to commenting on proposed section 74.1, available to the public. This respondent mention other agencies’ activities on believed that once these data were paragraph 2, stated that greater private, State, tribal, or other Federal susceptibility of certain species to submitted to the Forest Service, they lands, as required by CEQ’s NEPA would be subject to disclosure under the mortality from collision with or regulations. This respondent noted that electrocution by wind energy facilities Freedom of Information Act. the potential for ignoring activities on Another respondent believed that has not been established. private lands is especially troubling wind inventory data needed to be better Response. Environmental analysis of given the miles of NFS lands bordering defined so that truly proprietary wind energy applications will assess private land and the increasing effects of information could be protected. This whether species of management concern private land use, such as primary and respondent also believed that data are potentially affected. For purposes of secondary housing development and collected by wind energy developers establishing the scope of the analysis, it resort communities. This respondent related to wildlife, plants, and other is more appropriate to speak in terms of further noted that ignoring activities on resources on Federal lands should be species in the area being present, rather adjacent State, other Federal, or tribal shared with the public. Other than potentially affected. The Agency lands could result in failure to identify respondents stated that wind energy has clarified this point in section 73.4a, potential sources of conflict or potential developers who use Federal lands paragraph 7a, of the final directives. opportunities to site and develop wind should be required to make their energy facilities effectively. resource data available to the public as Section 73.2 in the final directives Response. Section 74.2 in the directs authorized officers to require a trade-off for using Federal lands. proposed and final directives addresses Response. The Agency believes that applicants to avoid the use of guy wires coordination in connection with actual wind inventory data, rather than on METs, if feasible, to reduce bat and processing wind energy applications summaries of the data, are necessary to bird mortality, and if applicants propose that involve lands under the jurisdiction support environmental analysis of to use guy wires, to require applicants of the Forest Service and one or more applications for permits for construction to mark them with bird-deterrent other Federal agencies. Lands under the and operation of a wind energy facility devices when possible. Section 73.4a, jurisdiction of FWS and the National and to allow evaluation of the proposed paragraph 5, in the final directives Park Service are covered by section development. In addition, section 74.3 directs authorized officers to ensure that 74.2. Lands under the jurisdiction of in the proposed and final directives applicants for a permit for construction State fish and wildlife agencies are not states that wind inventory data collected and operation of a wind energy facility covered by section 74.2. The Forest under a site testing and feasibility design wind energy structures, Service does not coordinate processing permit are proprietary information that including utility poles and wires, to of applications for use of NFS lands may be withheld from public review to discourage perching or nesting by birds with applications for use of State lands. the extent allowable by law and shall be and to use the 2006 APLIC However, the Agency has revised used only for analysis and recommendations for design of above- proposed section 72.1, paragraph 2h decisionmaking related to authorization ground lines, transformers, and (para. 2g in the final directives) to of construction and operation of the conductors. provide for discussion of the need to proposed wind energy facility. coordinate with affected State agencies. Therefore, the Agency has not changed Studies have shown the susceptibility To clarify the scope of section 74.2, of birds and bats to mortality due to the substance of section 74.3 in the final the Agency has changed its title in the directives. collision with or electrocution from final directives to ‘‘Applications wind energy facilities. Some of these Involving Lands under the Jurisdiction 74.4—Change in Ownership of an sources, including ‘‘Mitigating Bird of Multiple Federal Agencies,’’ rather Applicant Collisions With Power Lines: The State than ‘‘multiple Agencies.’’ In addition, Comment. One respondent suggested of the Art in 1994,’’ published by the the Forest Service has added a statement requiring applicants that have Edison Electric Institute, and that each affected agency must issue a undergone a change in ownership to ‘‘Suggested Practices for Raptor land use authorization for the lands provide additional documentation or to Protection on Powerlines: The State of under that agency’s jurisdiction. refile their application. the Art in 1996,’’ published by the Section 74.2 does not address Several respondents stated that the Edison Electric Institute and Raptor investigations, hearings, and requirement to file a new application Research Foundation, are cited in proceedings. Section 74.2 also does not upon a change in ownership was overly section 70.6 of the final directives. address environmental and aesthetic burdensome financially and would

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47378 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

delay the application process by applications, including cost recovery for Comment. One respondent suggesting months. These respondents NEPA documentation. requiring holders of site testing and recommended transfer of the feasibility permits to prepare a site 75.1—Site Testing and Feasibility application to the new owner, as restoration plan and post a bond to Permits allowed with communications site cover the costs of restoring the site if the authorizations. Comment. One respondent suggested project terminates before wind turbines Response. Section 74.4 in the providing specific guidance on are installed. proposed directives required application requirements for site testing Response. The Agency does not submission of additional documentation and feasibility permits. For example, believe it is necessary to regulate or refiling of the application when an this respondent suggested encouraging holders of a testing and feasibility applicant has undergone a change in the use of a CE for site testing and permit to prepare a site restoration plan. ownership. The Agency has revised feasibility permits, given the minimal However, the Agency has revised section 74.4 in the final directives so impact of METs. section 75.13 in the final directives to that it applies to a change in control, as Other respondents suggested that a require holders of these permits to well as a change in ownership, of an monitoring plan should be required for obtain a construction and reclamation every wind energy permit, including applicant. In addition, the Agency has bond of at least $2,000 per MET. site testing and feasibility permits. clarified that the entity that acquires Comment. One respondent was These respondents cited the need for ownership or control, as opposed to the concerned that an EIS and 2 years of monitoring data and the difficulty in original applicant, has the option of extensive wildlife monitoring could be obtaining these data from private filing a new application. required for site testing and feasibility landowners. Another respondent permits, given the ambiguity in the Section 74.4 in the final directives wondered which criteria would be used proposed directives regarding the gives the authorized officer the option to for monitoring effects on wildlife and applicability of proposed sections require the applicant to provide current noted that baseline data must be 73.11a and 74.1, regarding effects on documentation of ownership or control collected before an area is disturbed by wildlife, to those permits. or to require the entity that has acquired installation of METs. Response. Section 73.2 in the final ownership or control to withdraw the Response. Section 73.1 in the final directives states that an application for pending application and file a new one directives provides direction on a site testing and feasibility permit with any necessary revisions. Forest application requirements for all wind requires less documentation than that Service regulations require special use energy permits. Section 73.2 in the final required for a permit to construct and applicants to demonstrate technical and directives provides direction on operate a wind energy facility. In financial capability to conduct their application requirements for site testing addition, the Agency has revised proposed use. 36 CFR 251.54(e)(5)(iv). and feasibility permits. The appropriate proposed sections 73.11a and 74.1 (sec. Therefore, when an applicant undergoes level of environmental documentation is 73.4a in the final directives) to clarify a change in ownership or control, the site-specific. Therefore, the Agency that these provisions regarding effects application may not simply be believes it is best to address NEPA on wildlife apply only to permits for transferred to the entity that acquires compliance generally in the final construction and operation of a wind ownership or control. Additional directives. energy facility. analysis of the applicant’s or new The Agency’s experience with Comment. Several respondents stated entity’s technical and financial installation of METs in many locations that new roads and utilities should not capability may be required, but does not on NFS lands has shown that reliance be built for METs and that METs should have to result in a lengthy delay, on a CE for this activity is often not be located in sensitive habitats or particularly if the application is subject warranted. The analysis conducted to areas where ecological resources are to cost recovery. comply with the Agency’s NEPA known to be sensitive to human The application process when there is regulations will be based on site-specific activities. One respondent suggested a change in ownership or control is no information and anticipated enumerating performance standards and different for applicants for a environmental effects. Provided that criteria that should be included in a CE communications site lease. However, extraordinary circumstances are not an or finding of no significant impact for a holders of a lease for a communications issue under 36 CFR 220.6(b), the CE in MET, such as avoiding locating METs in site may assign their lease to an entity 36 CFR 220.6(e)(3)(i) may apply to ecologically sensitive areas or at cultural that acquires ownership or control of applications for minimum area site or historic sites; prohibiting permanent the communications site facility. The testing and feasibility permits, which foundations for METs; and avoiding Forest Service allows assignment only involve up to 5 acres. construction of new roads to access of authorizations like leases and The Agency has determined that a METs. easements that convey an interest in real monitoring plan is not needed for a site Response. The Agency believes that property. A wind energy permit does testing and feasibility permit, given the the final directives appropriately not convey an interest in real property. minimal effect of METs on the address sensitive habitats, sensitive environment. Therefore, the Agency has ecological resources, cultural and 74.5—Cost Recovery Requirements removed proposed 75.1, paragraph 1, historic sites, and minimizing Comment. One respondent stated that which addressed the need for a development in connection with siting the cost of NEPA documentation for monitoring plan for a site testing and METs. Specifically, section 72.21d, wind energy applications should be feasibility permit, from the final paragraph 1, directs the authorized borne by the applicants, not the directives. Section 75.21, paragraph 6, officer to locate METs away from taxpayers. in the final directives requires protected areas or where ecological Response. Section 74.5 in the submission of a monitoring plan as a resources are known to be sensitive to proposed and final directives prerequisite to issuance of a permit for human activities and lists examples of incorporates the cost recovery construction and operation of a wind these areas. Section 72.21d, paragraph 4, requirements in Forest Service energy facility and addresses the directs the authorized officer to use regulations for processing special use contents of the plan. existing roads and utility corridors to

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47379

the extent feasible and to minimize the area permits, since only the minimum already be provided in the number, length, and size of new roads. number of METs would ever be environmental analysis. Section 72.21e directs the authorized proposed to obtain needed data. Other Response. The items listed in officer to consider potential effects on respondents recommended that proposed and final section 75.21 are historic properties and cultural justification of the proposed number of prerequisites for issuance of a permit for resources and to comply with section METs and the proposed acreage be construction and operation of a wind 106 of the NHPA and FSM 2360. mandatory. Another respondent stated energy facility. Documentation required Comment. Some respondents that the reference to the Department of in paragraph 1 may have been provided suggested increasing the term of site Energy’s National Renewal Energy during environmental analysis or some testing and feasibility permits to a Laboratory in Denver, Colorado, should other stage of the evaluation process. maximum of 6 years, consistent with be changed to ‘‘National Wind However, if the required documentation BLM’s approach, to allow holders to Technology Center in Golden, Colorado has not been provided beforehand, it meet the rigorous requirements for site (http://www.nrel.gov). must be provided at the pre- testing and feasibility permits. These Response. Proposed section 75.11, authorization stage. respondents stated that having to paragraph 2, required proponents to Consistent with section 77.2, conduct extensive pre-installation justify the proposed number of METs paragraph 1, of the final directives, the wildlife monitoring would economically and the proposed acreage for project Agency has added a requirement in deter or preclude the necessary site area permits. The Agency has retained section 75.21, paragraph 5b, governing testing and feasibility phase. this provision in section 75.1, paragraph the annual operating plan for the Response. Under Section 75.1, 2, in the final directives because a operational phase for holders of a paragraph 3, in the final directives, the project area permit authorizes multiple permit for construction and operation of a wind energy facility to provide an holder of a site testing and feasibility METs and excludes use of the permit has 2 years to install and operate annual inspection report of METs and authorized area for site testing and METs. In the final directives, the other authorized wind energy feasibility study by other project Agency has added the phrase, unless a equipment. In addition, to address proponents. The Agency believes it is written justification for the delay is potential reporting requirements, the feasible and necessary for purposes of submitted and accepted by the Agency has also added a requirement in evaluation to project proposed authorized officer prior to the end of the this section for holders to provide an development in all special use 2-years period. The holder has 3 years annual report of the amount of energy proposals and applications. In section to report results of site testing to the produced by the authorized facility and 75.1, paragraph 2, in the final directives, Forest Service. The authorized officer where that energy is sold. the Agency has modified the reference may extend the permit for up to 2 years, The Agency has moved the to the National Wind Technology Center up to a maximum term of 5 years, requirement for bonding for permits for as requested by the respondent. pursuant to section 75.1, paragraph 3b. construction and operation of wind The Agency believes a maximum term 75.13—Site Testing and Feasibility energy facility to this section to ensure of 5 years is adequate for installing and Permit Form that the required bonding is obtained operating METs and reporting test before the permit is issued. The Agency received no comments on results to the Agency. Comment. One respondent suggested this section. However the Agency The Agency has determined that a requiring applicants to submit a site- revised this section to read, ‘‘To monitoring plan is not needed for a site specific mitigation plan to minimize authorize site testing and feasibility, use testing and feasibility permit, given the environmental degradation. form FS–2700–4, Special Use Permit, minimal effect of METs on the Response. Proposed section 75.21, and use code 414, ‘‘Wind energy site environment. Therefore, the Agency has paragraph 3 (para. 4 in the final testing.’’ See FSH 2709.11, for guidance removed proposed 75.1, paragraph 1, directives) requires applicants to submit on completing form FS–2700–4.’’ which addressed the need for a a final site plan consistent with the monitoring plan for a site testing and The Agency added a paragraph to this corresponding environmental analysis feasibility permit, from the final section to require construction and before a permit for construction and directives. reclamation bonding of at least $2,000 operation of a wind energy facility is Comment. One respondent objected to per MET for all site testing and issued. Proposed section 75.21, requiring a study plan for site testing feasibility permits. Bonding may take paragraph 5 (para. 6 in the final and feasibility permits, which merely the form of corporate surety, U.S. directives) requires applicants to submit authorize data-gathering devices. Treasury bills, notes, bonds, or other a monitoring plan that addresses the Response. The introductory paragraph negotiable securities, cash deposits, potential effects on wildlife and any of section 73.21 in the proposed irrevocable letters of credit, assignment required mitigation measures discussed directives and section 73.31 in the final of savings accounts, or assignment of in the corresponding environmental directives states that a study plan must certificates of deposit. analysis and site testing and feasibility be submitted by applicants for a permit 75.21—Pre-Authorization Requirements studies before a permit for construction for construction and operation of a wind and operation of a wind energy facility energy facility, not by applicants for a Comment. With respect to proposed is issued. site testing and feasibility permit. section 75.21, paragraph 1, several Comment. In proposed section 75.21, respondents questioned the need at the paragraph 4a, one respondent suggested 75.11—Types of Site Testing and pre-authorization stage for stating that the operating plan must, Feasibility Permits documentation that construction and rather than should, address minimizing Comment. With respect to proposed operation of a wind energy facility will hazards resulting from increased truck section 75.11, paragraph 2, one not ‘‘hinder national security, military traffic. respondent questioned whether it was readiness and training areas, radar and Response. The Agency agrees and has feasible or necessary for proponents to electronic security, and military and stated that an operating plan must justify the proposed number of METs civilian airspace. These respondents address minimizing hazards resulting and the proposed acreage for project believed that this documentation would from increased truck traffic in section

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47380 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

75.21, paragraph 5a, in the final annual report as appropriate to revise ‘‘for site restoration upon completion of directives. the next annual operating plan, construction.’’ This respondent believed Comment. With respect to proposed including adding provisions to mitigate that this revision would ensure that section 75.21, paragraph 4b(1), one adverse effects on species of structures are not left indefinitely at the respondent questioned the need for management concern. The authorized site. applicants to specify the dates or officer may request the underlying data, Response. The Agency intends to seasons of operation if wind energy if needed. require holders of a permit for projects are operated 24 hours a day, Comment. One respondent suggested construction and operation of a wind year round. adding a reference in proposed section energy facility to obtain a construction Response. Depending on the climate 75.21, paragraph 5e, to avoiding bond prior to commencement, not upon and other site-specific factors, wind harassment and disturbance of wildlife completion, of construction. The energy facilities may not be able to during fledging seasons. construction bond is for site restoration operate all the time. Specifically, there Response. The Agency agrees and has upon completion of construction. To may be seasonal limitations on the use added this reference to section 75.21, clarify this point, the Agency has moved of heavy equipment and requirements paragraph 6d, in the final directives. the bonding provision to section 75.21, for plowing snow, as addressed in 75.22—Authorization of Wind Energy paragraph 7 in the final directives. sections 75.21, paragraphs 5a and 5b(1), Facilities Section 75.21 enumerates the in the final directives. The Agency prerequisites for issuance of a permit for needs to know when these facilities will Comment. Some respondents believed construction and operation of a wind operate to minimize their resource that a special use permit is not adequate energy facility. Placing the bonding impacts. for financing wind energy projects and requirement in that section will require Comment. One respondent stated that that a lease or an easement, which applicants for those permits to obtain a relocating wind energy facilities based conveys an interest in real property, is construction bond before the permit is on monitoring results, as suggested by necessary to obtain a loan for these issued. proposed section 75.21, paragraph 5b, projects. The Agency believes it would be would be cost-prohibitive and should be Response. The Agency believes that inappropriate to specify the terms, a consideration only during the issuance of a long-term permit of up to including the amount, of construction planning phase. 30 years is appropriate for wind energy bonds in the directives because the Response. The Agency agrees and has projects. Many other uses of NFS lands terms may change based on site-specific revised section 75.21, paragraph 5b involving significant improvements, considerations. In addition, the Agency (para. 6b in the final directives), by such as ski areas, marinas, and resorts, does not believe it is necessary to removing the reference to relocating are authorized with a long-term permit, develop a standard form for wind energy facilities or staging areas. and the holders of these permits have construction bonds because they are Comment. In proposed section 75.21, been able to obtain financing. Directives common and readily available. Forest paragraph 5c, one respondent suggested at FSM 2717.3 and standard form FS– Service Handbook 2709.11k, chapter 70, replacing ‘‘evidence identified through 2700–12, Agreement Concerning Loan section 75.21, paragraph 7, in the final ongoing monitoring of newly discovered for Holder of Special Use Permit, directives provides that bonding may ecologically significant habitats or facilitate this process. The form explains take the form of corporate surety, U.S. features’’ with ‘‘data from ongoing the legal effect of a Forest Service Treasury bills, notes, bonds, or other monitoring of newly discovered special use permit and the rights and negotiable securities, cash deposits, ecologically significant habitats or obligations of the holder, the lender, irrevocable letters of credit, assignment features.’’ and the Forest Service in this context. of savings accounts, or assignment of Response. The Agency has removed Comment. One respondent stated that certificates of deposits. It would not proposed section 75.21, paragraph 5c, proposed section 75.22, paragraph 2, make sense to provide for a construction from the final directives because it is should specify the terms of the site bond for dismantling a wind energy covered by proposed paragraph 5d restoration bond; should allow facility upon completion of (para. 6c in the final directives), which corporate guarantees and letters of construction, because upon completion requires the holder to submit to the credit in lieu of bonds; and should cite of construction, wind energy facilities authorized officer an annual report section 2.6 in BLM’s PEIS regarding will operate. Therefore, the Agency has summarizing results of all monitoring bonding. Another respondent stated that made this change in the final directives. data and use of the annual report as the Forest Service should establish Comment. One respondent stated that appropriate to revise the next annual national forms and amounts for the 2-year limit in proposed section operating plan. bonding. Another respondent stated that 75.22, paragraph 3a, for commencement Comment. One respondent stated that the holder should be required to obtain of construction of a wind energy facility to allow independent validation and a construction bond for site restoration is problematic because this requirement analysis of data and to return some prior to commencement of construction, does not account for delays resulting value to the public for the development rather than upon completion of from having to secure other permits or of Federal lands, proposed section construction, to protect against other events outside the holder’s 75.21, paragraph 5d, should require that insufficient funds being available to control. This respondent recommended all monitoring data—not just summaries restore the site if construction is not including a provision allowing for of the data—be submitted to the completed. reasonable construction delays with authorized officer in the annual report. One respondent suggested revising notification. Another respondent noted Response. The Agency believes that proposed section 75.22, paragraph 2, to that there was a significant backlog on requiring summaries of the results of state that holders of a permit for orders of many wind energy facility monitoring are sufficient for purposes of construction and operation of a wind components (5 years for wind turbine annual reporting to the authorized energy facility must obtain a components) and that the 2-year officer under the operating plan. Section construction bond ‘‘for site restoration timeframe for commencement of 75.21, paragraph 6c, in the final or dismantling of a facility upon construction was therefore unrealistic. directives also provides for use of the completion of construction,’’ rather than This respondent recommended

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47381

increasing the time frame for quality of the wind resource and the regional minimum fee or $100 for each commencement of construction to 5 term of the permit. These respondents MET, whichever is higher. The Agency years and increasing the time frame for believed that land use fees should agrees that $100 for each MET is too having turbines operational to 7 years. increase as the wind capacity and low. Accordingly, the final directives Response. Forest Service special use permit term increase. These respondents provide that the land use fee for regulations at 36 CFR 251.54(d)(5) state stated that the Forest Service could minimum area permits shall be the that the authorized officer may require reserve use of the fee schedule until regional minimum fee or $600 for each proponents to comply with industry or economic conditions MET. This amount will be revised requirements for clearances, certificates, change. These respondents believed that annually, based on the Consumer Price permits, or licenses associated with the appraisals should be used only to Index, (CPI–U). This change in the CPI proposed use. Proponents and confirm that the values in the fee is posted in section 97 of the FSH applicants should plan on obtaining schedule achieve a fair return to the 2709.11. This fee is rounded to the other necessary permits before their Government for use of NFS lands. These nearest $10. special-use permits are issued, so that respondents stated that while they are ready to start construction upon standardization in assessment of the 77.2—Inspections issuance. value of the land use is important, the Comment. With respect to proposed Forest Service special use regulations Forest Service should recognize and section 77.2, paragraph 1, one at 36 CFR 251.54(d)(3) require all allow for unique situations. respondent stated that annual technical proponents to provide sufficient Another respondent stated that inspection reports of METs and other evidence to satisfy the authorized officer assessment of land use fees should take wind energy equipment should be that the proponent has, or prior to into account generating capacity, mandatory, not optional. commencement of construction will including anticipated intermittency in Response. Proposed and final sections have, the technical and financial the wind resource, and should create a 77.2, paragraph 1, require holders to capability to construct, operate, disincentive for sprawl in siting wind provide annual technical inspection maintain, and terminate the proposed turbines. reports of METs and other wind energy use. Accordingly, to pass second-level One respondent stated that because equipment. In addition, section 75.21, screening, a proponent must wind energy facilities are essentially paragraph 5b(5) in the final directives demonstrate the financial and technical permanent structures, taxpayers should requires the annual operating plan for capability to undertake the proposed receive a fair and significant royalty on the operational phase to provide for an use. 36 CFR 251.54(e)(5)(iv). To meet each megawatt of electricity they annual inspection report of METs and these requirements, proponents must generate. other authorized wind energy show that they have or will have the Response. The Agency does not equipment. capability to construct a wind energy believe that a fee schedule is 77.3—Construction Requirements facility, including wind turbines. appropriate for wind energy uses. The However, to address situations where Forest Service’s special use regulations Comment. With respect to proposed the delay in construction or operation of at 36 CFR 251.57(a)(1) authorize section 77.3, paragraph 1, one a wind energy facility is due to charging a land use fee based on the respondent suggested adding the circumstances beyond the holder’s market value of the authorized use, as following sentence: ‘‘Ensure that habitat control, the Agency has provided an determined by appraisal or other sound features attractive to wildlife, especially exception to termination in the final business management principles. prey species, are not left in place among directives, if a written justification for Section 76.1, paragraph 1, in the final the turbines.’’ Another respondent the delay is submitted and accepted by directives provides for standardization requested additional guidance on the authorized officer prior to the end of of the land use fee by establishing a flat avoiding, minimizing, and mitigating the termination period and the fee for each MET authorized under a adverse effects of construction of wind authorized officer establishes a new minimum area permit. Section 76.1, energy facilities. Another respondent time frame for the required actions. paragraph 2, in the final directives suggested adding the following after the provides for use of an appraisal to assess first sentence: ‘‘Minimize impacts on 76—Land Use Fees the value of the use authorized by a groundwater and surface water, Comment. One respondent suggested project area permit. Section 76.2 in the including sedimentation and other establishing a land use fee payment final directives provides for use of an impacts on water quantity and quality.’’ system similar to BLM’s so that wind appraisal to assess the value of the use Response. Effects on wildlife and energy applicants have an authorized by a permit for construction their habitats, including landscape approximation of the amount prior to and operation of a wind energy facility. features that attract species of approval of their application. In assessing the value of the authorized management concern, are addressed in Response. FSH 2709.11, section 76, use, the appraiser will take into account sections 72.21d, 73.4a, and 75.21, establishes the method for calculating all relevant factors, in accordance with paragraph 6, in the final directives. the land use fees for wind energy applicable appraisal standards. Section 75.21, paragraph 6a, addresses permits. Authorized officers should be effects of wind turbine construction and able to provide an estimate of the 76.1—Land Use Fees for Site Testing operation on species of management annual land use fee before a wind and Feasibility Permits concern. The Agency believes that energy application is granted. Comment. One respondent stated that impacts on groundwater and surface Comment. For increased efficiency the land use fee of $100 for minimum water from special uses generally and standardization, several area permits is much too low and that should be addressed in separate respondents proposed establishing a the fee should cover all Forest Service directives, and the Agency is working standard land use fee schedule that administrative and monitoring costs for on those directives. would be uniformly applied to all Forest the permit. Service wind energy permits. Response. Proposed section 76.1, 77.4—Operational Requirements Alternatively, these respondents paragraph 1, stated that the land use fee Comment. Another respondent proposed basing land use fees on the for minimum area permits shall be the believed that proposed section 77.4

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47382 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

would allow operation of a wind energy recommended limiting security lighting restoration. Another respondent stated facility even if injury to protected requirements to certain sites. Another that wind energy applicants should be species were occurring, in violation of respondent noted that motion sensors required to establish a standard for the MBTA. This respondent stated that for security lighting are not typical at evaluation of site restoration. This any violation of the MBTA should be wind energy facilities and may unduly respondent stated that the standard reported to the enforcement branch of disturb wildlife in the area. This could be based on selection of a point the FWS and the U.S. Department of respondent stated that motion sensors of reference within the project area for Justice. should not be required for security each vegetation type, the typical Response. None of the provisions in lighting, especially given that proposed vegetation description for each soil type proposed and final section 77.4 section 73.11d, paragraph 5, provides in a soil survey, or another agreed-upon authorizes operation of a wind energy for designing the site to minimize or standard. facility in violation of the MBTA. To the eliminate the need for security lights. Response. The Agency does not contrary, section 77.4 addresses Response. There is no inconsistency believe it would be appropriate to set maintenance of wind energy facilities, between the two provisions. It is specific timelines or standards for site proper use of security lighting, noise consistent to require that wind energy restoration, since the timelines and management, control of noxious weeds sites be designed to minimize or standards may vary depending on site- and invasive species and proper use of eliminate the need for security lighting, specific circumstances. pesticides. In addition, paragraph 7 in but to require that if security lighting is Comment. One respondent stated that the final directives provides for using used, the lighting be activated by proposed section 77.5, paragraph 1, results from multi-year monitoring to motion sensors. However, the Agency should include additional guidance on adjust operations to mitigate or has clarified sections 77.4, paragraph 3, decommissioning and that eliminate impacts on species of in the final directives by requiring that decommissioning should be considered management concern and their habitats, security lighting be limited to areas when assessing the environmental while still achieving the energy where safety is a concern. impact of a proposed wind energy use. production objectives for the facility. Comment. With respect to proposed Another respondent stated that Comment. One respondent suggested section 77.4, paragraph 4, another proposed section 77.5 should state more adding deadlines for operational respondent requested clarification of the clearly that decommissioning and full requirements. phrase ‘‘sound-control devices’’ and reclamation of sites are required after Response. The Agency believes that it wondered whether it referred to removal of wind energy facilities and would not be appropriate to include something other than the acoustic that the environmental analysis for deadlines for operational requirements, shielding referenced in proposed wind energy uses should clearly iterate as they may vary depending on project- section 73.11c. their impacts and any necessary specific circumstances. Section 73.32, Response. The sound-control devices mitigation. One respondent noted that if paragraph 4, in the final directives states referenced in section 77.4, paragraph 5, species are disturbed, they will avoid that the applicant’s plan of development in the final directives are the available the entire area, not just their habitats must describe the development process, noise-dampening technologies within the area, and that the Forest including the sequence, timing, and referenced in section 73.4c, paragraph 2, Service should require habitat duration of construction phases; in the final directives. mitigation based on more than the area construction methods; required access Comment. With respect to proposed of the disturbed footprint. Another to facilities; and additional development section 77.4, paragraph 6, a respondent respondent stated that the Forest that may be requested in the future. In suggested discouraging the use of Service should require not only addition, section 75.21, paragraph 5a, in rodenticides to control rodent decommissioning of access roads, but the final directives requires applicants burrowing around towers. also returning the roads to their pre- to submit an annual operating plan that Response. Section 77.4, paragraph 6 project state. addresses transportation and traffic in the proposed directives and section Response. The Agency has replaced management for the construction phase 77.4, paragraph 7, in the final directives the reference to decommissioning roads of the project. Therefore, the Agency has adequately address proper use of in paragraph 1 with a reference to not made the change suggested by the pesticides at wind energy facilities. returning roads to their pre-project state, respondent. Comment. With respect to proposed since roads may exist in the project area Comment. With respect to proposed section 77.4, paragraph 7, one before wind energy facilities are built. In section 77.4, paragraph 1, one respondent suggested removing the that case, decommissioning would not respondent stated that wind turbines phrase ‘‘as necessary’’ in connection be appropriate. Roads that were built for should be cleaned ‘‘as needed,’’ rather with adjusting operations to avoid or the project would be decommissioned. than ‘‘yearly,’’ to minimize the need to mitigate impacts on species of The other provisions in section 77.5 bring large cranes to the site to perform management concern and their habitats. regarding removal of authorized the task. Response. The Agency agrees and has facilities, re-establishment of Response. The agency agrees and has revised section 77.4, paragraph 8 in the predevelopment vegetation cover, use of revised proposed section 77.4, final directives to state: ‘‘Use results certified weed-free materials, and paragraph 2, by replacing ‘‘yearly’’ with from multi-year monitoring to adjust conducting other site restoration ‘‘as needed.’’ operations to mitigate or eliminate activities required by the plan of Comment. One respondent stated that impacts on species of management development and the permit provide there is an inconsistency between concern and their habitats, while still adequate environmental protection. proposed section 77.4, paragraph 2, and achieving the energy production Comment. Some respondents stated proposed section 73.11d, paragraph 5, objectives for the facility.’’ that while it is virtually impossible to in that the former provides for motion return developed land to pre-existing sensors for security lighting, while the 77.5—Site Restoration Upon conditions, wind energy developers latter provides for designing the site to Discontinuation of the Authorized Use should be required to submit removal minimize or eliminate the need for Comment. One respondent suggested and reclamation plans with their security lights. This respondent setting specific timelines for site proposals, including complete

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47383

information about the proper location access is not inconsistent with the serve as a comprehensive source of and width of roads and the footprint of holder’s rights and privileges under the literature on a specific topic. Therefore, underground electrical cables. These permit. only literature actually referenced in the respondents stated that if a wind energy handbook has been included. However, 80.4—Responsibilities proponent cannot fully restore the the final list of references has been proposed site when the use terminates, Comment. Several respondents augmented to include some of the the Forest Service may want to consider requested that the Forest Service obtain literature referenced by respondents. the site unsuitable for wind energy direct involvement from FWS and State The Forest Service agrees that development. wildlife agencies in developing and California’s guidelines are well-written Response. Both sections 73.22, reviewing wind facility monitoring and contain useful guidance for paragraph 10, in the proposed directives plans. monitoring. However, many other States and 73.32, paragraph 10, in the final Response. The final handbook ensures have wind energy guidelines. Rather directives require an applicant’s plan of that this will take place by adding than single out the guidelines of one development to include a reclamation interagency involvement to the State, the handbook encourages plan. In the final directives, the Agency responsibilities of the authorized officer. coordination with the applicable State enhanced this provision by providing Similar language was also added to FSH agency in which the project is located. for removal of foundations, roads, and 2609.13, section 81, ‘‘Monitoring associated infrastructure; providing for Plans.’’ 81—Monitoring Plans invasive species control; and specifying Comment. Some respondents Comment. Respondents indicated that that re-vegetation should involve use of requested that any data underlying the the draft handbook was not clear in the native species. In recognition of the permit holder’s monitoring reports be amount of monitoring required for site difficulty of restoring a wind energy site given to the Forest Service to be used for testing and feasibility permits as to its original condition, the final independent validation of monitoring opposed to permits for construction and directives provide for restoration of the reports and summaries and that this operation of a wind energy facility. project area upon termination of the information be provided to the public Response. To clarify that monitoring authorized use. for review and comment. is a requirement associated with permits Response. The Agency believes that for construction and operation of a wind Response to Comments on FSH 2609.13, requiring summaries of the results of energy facility, as opposed to site testing Chapter 80 monitoring are sufficient for purposes of and feasibility permits, the introductory Comment. One respondent noted that annual reporting to the authorized sentence now reads, ‘‘The monitoring wind energy facilities on NFS lands officer under the operating plan. Section plan will describe all pre- and post- offer a unique research opportunity for 75.21, paragraph 6c, in the final construction monitoring conducted learning how wildlife interacts with directives also provides for use of the under a permit for construction and wind energy facilities. This respondent annual report as appropriate to revise operation of a wind energy facility.’’ stated that this type of research the next annual operating plan, Comment. Some respondents opportunity is not necessarily available including adding provisions to mitigate expressed concern that too many on private lands, where owners can adverse effects on species of monitoring decisions were left to the control access to their facilities and to management concern. The authorized authorized officer and permit holders. the data generated. This respondent officer may request the underlying data, Additionally, several respondents suggested that the Agency include a if needed. Monitoring reports, operating suggested changing the word ‘‘should’’ provision in wind energy permits plans and land use authorizations are to ‘‘shall’’ in several places throughout allowing access to wind energy sites by public documents, not protected under chapter 80 to distinguish monitoring government, university, and other the Privacy Act or eligible for one of the requirements from discretionary actions wildlife researchers and providing for Freedom of Information Act of the authorized officer. public access to the data generated from exemptions. Response. The final directives impose the research. Comment. One respondent suggested requirements in several keys places with Response. The Forest Service agrees that the party responsible for monitoring respect to wildlife monitoring, such as that it is important to obtain information should have experience in experimental in connection with components of on the interaction of wildlife with wind design and analysis. monitoring plans; the number of years energy facilities, both for research and Response. This recommendation was for pre- and post-construction adaptive management so that impacts to not included under ‘‘Responsibilities,’’ monitoring, which may be extended, if wildlife can be reduced. Consequently, as proposed by the respondent, but FSH needed; and involvement of FWS and the Forest Service has developed 2609.13, section 81, now states that State wildlife agencies in development guidelines (FSH 2609.13, chapter 80) for monitoring plans must be developed ‘‘in and review of monitoring plans. pre- and post-construction monitoring consultation with an individual who Comment. Although many of wildlife at wind energy facilities. has expertise in sampling design.’’ respondents supported using an In addition, Forest Service regulations interagency committee for formulating a at 36 CFR 251.55(b) provide that the 80.6—References monitoring plan, some respondents Agency has the right to require common Comment. Respondents suggested believed that this would be a time- use of NFS lands covered by a special numerous additional references to consuming and unnecessary step. use permit or to authorize others to use include in the References section. Response. The Agency believes that those lands in any way that is not Specifically, several respondents involvement from FWS, State agencies, inconsistent with the holder’s rights and recommended that the Forest Service and other sources of wildlife expertise privileges after consultation with all incorporate and reference California’s is necessary for producing a monitoring parties and agencies involved. Under Guidelines for Reducing Impacts to plan that is scientifically sound as well this provision, after consultation with Birds and Bats from Wind Energy as practical to implement. the holder, the authorized officer may Development. Comment. Several respondents allow access to wind energy facilities for Response. Generally speaking, Forest suggested that monitoring plans contain research purposes, provided that the Service handbooks are not intended to thresholds that would indicate the point

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47384 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

at which further mitigation or changes the wind energy facility. For example, a Comment. One respondent stated that in management would be initiated. documented increase in habitat the Forest Service needs to define what Response. In FSH 2609.13, section 81, fragmentation associated with the is meant by a ‘‘significant’’ change in the concept of a trigger point has been facility could result in reduced the presence or abundance of any added as part of the requirement of plan abundance or lack of presence of a target species of management concern. objectives. However, sections 82.1, 82.2 species. Response. As mentioned in the and 84 state that the amount and degree Comment. One respondent requested response to comments on section 81, the of changes in permit operation will be that Objective 1 be reworded to read, final directives include a requirement limited to those that are practical and ‘‘Monitoring changes in wildlife for establishing a trigger point as part of feasible. presence caused by the establishment of the monitoring objective for each Comment. Some respondents believed a wind energy facility’’ rather than species or group of species. In section that the handbook should include ‘‘monitoring changes before and after 82.1, the term ‘‘significant change’’ has authority to shut down wind turbines the establishment of a wind energy been replaced with ‘‘is approaching or on a seasonal basis or remove them from facility.’’ has reached an undesired management the facility if they cause unacceptable Response. The Forest Service has threshold identified in the objective of mortality to wildlife. concluded that the current wording is the species’ monitoring design’’ (FSH Response. This recommendation has more appropriate because it implies that 2609.13, section 82.1). not been included in the final directives other environmental data should be Comment. Respondents were either because shutting down or removing included in the monitoring design. supportive or critical of the Before- wind turbines after a facility is in place After-Control-Impact (BACI) design as a Comment. Some respondents is not an operating model that the Forest recommended approach for pre- and commented that federally protected Service wishes to follow. Rather, the post-construction monitoring. Some species, such as bald and gold eagles Forest Service prefers to build respondents applauded the Forest and migratory birds, should be included mitigation and careful planning into the Service for recommending this design, in all monitoring plans. pre-construction phase and is therefore whereas others believed it was not Response. The Forest Service has requiring 2 years of pre-construction appropriate in many circumstances concluded that these species should be monitoring and close attention to siting associated with wind energy facilities. monitored if there are risks to these considerations to avoid wind turbine Response. The Forest Service believes species, as determined from the best placements where unacceptable that it is in the best interest of all available science and from surveys mortality might occur. See FSH 2609.13, parties, including the permit holder, to conducted under a site testing and section 84, ‘‘Adaptive Management,’’ for use the BACI design whenever possible feasibility permit. As stated in the responses to similar comments. to help distinguish wildlife changes due Comment. Some respondents response to comments on section 81, the to the wind energy facility from changes commented that monitoring after authorized officer will identify which due to other environmental factors. For construction takes place is too late species or groups of species are most in example, a decline in species because ecological damage will have need of monitoring. abundance that is only measured at the already occurred. 82.1—Monitoring Wildlife Presence, site of the facility would tend to be Response. Post-construction Abundance, and Activity Levels attributed entirely to the facility, monitoring is a necessary step in whereas a similar decline on a control adaptive management to detect desired Comment. Section 82.1 does not site could indicate other factors at work. and undesired effects as soon as consistently use presence, abundance, Although the handbook does not require possible and to minimize undesired and activity levels throughout, so it is the use of BACI as a monitoring design, effects through changes in operation to difficult to tell when all three measures it is recommended because it is a the extent possible. Additionally, post- are being discussed. standard tool for monitoring wildlife construction monitoring provides useful Response. For consistency, the final populations in response to management information for design and operation of handbook direction refers to wildlife actions. future wind energy facilities so that presence, abundance, and activity levels Comment. Respondents were mixed appropriate mitigation can be included throughout this section. The choice of in their support of 2 years of pre- in future projects (sec. 84). which attributes to monitor depends on construction monitoring and 3 years of the species’ use of the site (breeding, post-construction monitoring. Some 82—Monitoring Objectives migration and dispersal) and whether it respondents applauded these Comment. Several respondents is frequently or rarely detected, as timeframes and suggested long-term expressed concern that the monitoring described in the third paragraph of this monitoring, whereas other respondents objectives were focused solely on section. suggested that these timeframes were species abundance or mortality and not Comment. Some respondents excessive and were not needed in on other aspects, such as habitat commented that monitoring situations with minimal environmental fragmentation, behavioral avoidance of requirements did not include certain concerns. developed areas, and noise issues. species, such as State listed species, Response. The final directives Response. The final direction in FSH management indicator species, or Forest maintain the desire of 2 years of pre- 2609.13, section 82, clarifies the linkage Service sensitive species. construction monitoring because a between species abundance, presence Response. The definition for species period of 2 years is the minimum time and activity levels and the suite of of management concern in FSH 2709.11, needed to measure some of the natural environmental factors that potentially chapter 70, includes all of the groups of variation in environmental conditions affect these factors. As indicated in this species that respondents mentioned. so that all changes are not attributed section, monitoring of species Therefore, all direction pertaining to entirely to the wind energy facility. This abundance, presence, and activity levels species of management concern in FSH approach is beneficial to the permit also needs to include measuring the 2709.11, chapters 70 and 80, applies to holder as well as to the authorized appropriate environmental factors that all the management classes listed in the officer. However, the final directives are likely to change as a consequence of definition. reduce the post-construction monitoring

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47385

to a minimum of 2 years, which still suggested that mortality searches should in the monitoring plan.’’ The Forest allows for some measure of natural extend a fixed distance beyond the rotor Service added a statement that the variation while acknowledging that -swept radius. A respondent also permit holder will promptly notify the some sites may not have significant suggested that a correlation factor needs authorized officer when an anomalous environmental issues requiring longer to be added if there is a forested canopy or unusually high mortality event takes monitoring periods. The final directives within the radius of the rotor-sweep place involving any species or provide that 3 years of monitoring are area because it is possible that bats and combination of species. needed if significant risks to any species small birds will be caught in the 82.3—Other Monitoring of management concern have been branches and not fall to the ground. One identified or if a permit has been respondent stated that the guidance is Comment. The proposed directives modified in response to outcomes from vague for determining when a subset of stated that monitoring ‘‘may also the first 2 years of monitoring (FSH wind turbines rather than all wind include other species that are of 2609.13, sec. 82.1). turbines would be sampled for management concern or of substantial Comment. One respondent stated that carcasses. public interest,’’ but respondents this section should reference Federal Response. Topography and wind commented that ‘‘substantial public laws, such as the ESA, MBTA, and the speed have local effects on carcass interest’’ was not defined. Bald and Golden Eagle Protection Act. location, so the final directives state that Response. The final directives Response. None of these acts require preliminary tests may be needed to eliminate this phrase from section 82.3 monitoring. Therefore, they are outside determine the optimal search distance because the definition of species of of the scope of these directives. for local conditions. A correction factor management concern in FSH 2709.11, However, these acts and other for forested canopy was not chapter 70, includes ‘‘species of high legislation affecting Forest Service incorporated into the final directives public interest.’’ These species will be management are cited in FSH 2709.11, because this level of detail needs to be locally identified during the chapter 70, ‘‘Wind Energy Uses.’’ addressed locally. The final directives environmental analysis of proposed clarify that when a wind energy facility wind energy facilities. In addition, 82.2—Monitoring Mortality contains 20 or fewer wind turbines, section was eliminated because the Comment. One respondent suggested mortality searches will be conducted at language was in conflict with section using a more precise monitoring all wind turbines unless otherwise 82.2, paragraph 8. objective for monitoring mortality. directed by the authorized officer. For Response. This suggestion has been facilities with more than 20 wind 83—Monitoring Tools and Evolving incorporated into the final directives: turbines, a random sample of all wind Technology ‘‘The objective of post-construction turbines will be selected for mortality The Forest Service did not receive any mortality monitoring is to estimate the searches. public comments on this section. The approximate annual number of collision Comment. Some respondents term ‘‘evolving technology’’ was added fatalities of birds and bats on a per- commented on additional aspects of to the title of section 83 in recognition turbine or per-megawatt basis.’’ The mortality monitoring, such as depositing that current methods of monitoring final directives states, ‘‘and to estimate carcasses in research repositories and might be replaced by improved the influence of physical and biological collecting tissue for subsequent DNA methods. factors such as season, weather, analyses. 84—Adaptive Management topography, wind speed and turbine Response. The final handbook states, cut-in speed on mortality rates.’’ ‘‘The monitoring plan must provide Comment. Several respondents Comment. Several respondents details on documenting and mapping expressed concern that monitoring requested that ‘‘should’’ be changed to the location of carcasses; procedures for results might lead to changes in ‘‘shall’’ and ‘‘encourage’’ to ‘‘required’’ collecting all or a proportion of operations that could be economically in this section. carcasses; the name of the repository or unrealistic. Some respondents requested Response. The Forest Service has academic collection where carcasses that the full range of possible mitigation carefully evaluated use of these terms will be sent; and proper handling of measures be established when a permit and has changed the wording as tissue for potential future analyses of is issued. Respondents focused their appropriate to clarify what is actually DNA.’’ concerns on removal of wind turbines or required as opposed to encouraged. Comment. Some responses addressed seasonal shutting down of wind turbine Adjusting for scavenging rates and the need to notify FWS if carcasses of operations, since these were seen as the individual detection rates is required bald or golden eagles or other migratory only methods to reduce impacts. because it is not possible to interpret birds were found. One respondent Response. The Forest Service mortality results without these suggested that the permit holder notify recognizes the costs of changing wind adjustments. The time intervals between the authorized officer when an turbine location and operation once a mortality sampling and the amount of anomalous or unusually high mortality facility is in place. Therefore, the area searched depend on local factors event takes place involving any species Agency has emphasized site surveys, and are worded with more flexibility. or combination of species. careful attention to siting requirements, Comment. A respondent commented Response. The final directives state and 2 years of pre-construction that dog-handler teams should be used that FWS will be notified ‘‘within 24 monitoring to avoid after-the-fact instead of human searchers. hours’’ rather than ‘‘promptly’’ when mitigation. Moreover, language has been Response. The final directives do not the carcass of a bald or golden eagle is added throughout chapter 80 that any include this requirement, but state that found. The final directives further state, modifications to the permit should be dogs provide higher searching efficiency ‘‘Carcasses of other migratory bird within limits that are practical and than human searchers and provides a species must be reported to the feasible. reference for using this method. authorized officer and FWS by the next There are numerous forms of Comment. Several individuals business day, and other species should mitigation and changes in facility commented on specifics of conducting be reported in progress reports to the operation that are economically feasible mortality searches. One respondent authorized officer at intervals specified after a wind energy facility is operating,

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47386 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

such as closure of secondary roads that radio telemetry techniques be added as cultural and heritage resources, and inhibit terrestrial animal movements; useful tools. Some respondents also national security. The final directives do reseeding of areas that have converted to recommended that the reference to not compel approval or denial of wind invasive species; changes in lighting spotlighting and use of ceilometers be energy permits. Each proposed wind around buildings; and construction of eliminated because they are not energy use will be assessed to determine retaining walls to curtail observed soil particularly useful tools. the level of environmental analysis and erosion. Permit holders could be Response. The final directives do not documentation that is required. required to modify certain operations contain any reference to ceilometers or Comment. With respect to the such as changing wind turbine cut-in spotlighting. However, rather than add certification regarding civil justice speed or observing seasonal shut-downs more methods to this exhibit, the final reform in the proposed directives, one if these measures would significantly directives reference two publications respondent stated that the proposed reduce bird or bat mortality during that contain numerous methods for directives would conflict with State and specific migration periods. However, it detecting diurnal and nocturnal local laws and regulations, that the is unlikely that the full range of possible presence of wildlife species (Anderson, conflict must be addressed, and that the mitigation could be established when a et al.,1999 and Kunz, et al., 2007). views of citizens should be given full consideration in siting wind energy permit is issued. Response to Comments on the Comment. One respondent expressed projects on NFS lands within their Regulatory Certification for the State. concern that if a permit holder Proposed Directives disagreed with revocation of a permit, Response. Under Executive Order there would be no appeal process. Comment. One respondent (E.O.) 12988 on civil justice reform, Response. Forest Service appeal commented that formulation of a wind Agencies promulgating rules or issuing regulations at 36 CFR 251.60(a)(2)(ii) energy program and attendant policies directives through public notice and and the terms of special use and procedures clearly fits the comment must address whether the authorizations provide for definition of a major Federal action and proposed and final rules or directives administrative review of decisions to has the potential to significantly affect are intended to preempt conflicting revoke a special use authorization. the quality of the human environment. State and local laws and regulations; Comment. One respondent stated that This respondent contended that the whether the rules or directives will be merely ensuring that facilities do not Forest Service had violated NEPA in given retroactive effect; and whether have long-term unacceptable impacts on proposing the wind energy directives administrative proceedings will be wildlife is too vague and the standard is without accompanying environmental required before parties can file suit in too low. analysis in a PEIS. The respondent court challenging the rules or directives. Response. In section 84, this believed that the Agency’s blanket The Agency does not anticipate that the statement was replaced with the assumption that wind energy projects final directives will conflict with State following: ‘‘The purpose of monitoring will not require an EA or EIS would or local law. Nevertheless, to ensure wildlife at wind energy facilities is to establish a dangerous foundation for national consistency, the regulatory detect both desired and undesired widespread development on NFS lands. certifications for the final directives effects as soon as possible and to Response. Neither a PEIS, EIS, or EA provide that they will preempt all State minimize undesired effects through is required for issuance of the wind and local laws and regulations that changes in operation to the extent energy directives. The formulation of a conflict with the final directives or that possible.’’ wind energy program and attendant impede their full implementation. Comment. One respondent suggested policies and procedures fits the Forest Each proposed wind energy use on that periodic reviews (e.g., at 5-year Service’s categorical exclusion for rules, NFS lands will be subject to NEPA. If intervals) be required during the term of regulations, or policies to establish an EA or EIS is required, the Forest the permit. Servicewide administrative procedures, Service will seek public input as Response. Section 75.1, paragraph 6, program processes, or instructions (36 required by NEPA. in the final directives requires CFR 220.6(d)(2)), and there are no Comment. One respondent objected to submission of a monitoring plan as a extraordinary circumstances that would the conclusion in the certification prerequisite to issuance of a permit for require documentation in an EA, EIS, or regarding energy effects of the proposed construction and operation of a wind PEIS. directives that they could have a energy facility and lists examples of The final directives establish positive, rather than a negative, effect on terms that may need to be addressed or guidance for Forest Service employees the supply, distribution, and use of included in the monitoring plan. In on siting wind energy facilities, energy. This respondent stated that the particular, paragraph 6c lists as a evaluating a variety of resource environmental costs of siting wind possible requirement submission by the concerns, and addressing issues energy facilities on the ridge tops of holder to the authorized officer of an specifically associated with wind energy mountains in the mid-Atlantic region annual report summarizing the results facilities in the special use permitting outweigh the benefits derived from of all monitoring data and use of the process. Specifically, the final directives additional energy supplied. annual report as appropriate to revise address the processing of proposals and Response. The Agency believes that the next annual operating plan, applications for and issuance of two implementation of these directives including adding provisions to mitigate types of wind energy permits: (1) Site could have a positive effect on the adverse effects on species of testing and feasibility permits for the supply, distribution, and use of energy management concern. However, FSH collection of data on the wind resource to the extent the directives facilitate 2709.11 contains provisions for periodic and (2) permits for construction and development of a renewable energy reviews and requires annual operating operation of a wind energy facility. The source. plans as part of all special use permits. final directives also address competitive interest in wind energy uses, land use 3. Summary of Revisions to the 85—Exhibits fees for wind energy permits, and Proposed Directives Comment. Some respondents potential impacts of proposed wind The Agency has made nonsubstantive suggested that thermal imagery and energy facilities on wildlife, scenery, changes to the proposed directives for

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47387

clarity and has renumbered FSH species of management concern Agencies.’’ Added a statement that each 2709.11, sections 70.1 through 77.5. associated with wind energy uses at the agency must issue a land use In addition, the Agency has made the application stage. Revised to clarify that authorization for the lands under that following substantive changes to the the provision applies only to agency’s jurisdiction. proposed directives: applications for permits for construction 74.4—Change in Ownership of an 70.2—Objectives. Clarified the and operation of a wind energy facility. Applicant. Revised to apply to change objectives of the wind energy directives. 73.11c—Noise Management (73.4c in in control, as well as ownership, of an 70.5—Definitions. Removed the the final directives). Revised paragraph applicant and to clarify that the entity definition for ‘‘adaptive management’’ 2 to provide for use of available noise- that acquires ownership or control has because the term is not used in chapter dampening technologies. Expanded and the option to file a new application. 70. Revised the definitions for ‘‘cultural strengthened considerations regarding 75.1—Site Testing and Feasibility resource,’’ ‘‘site plan,’’ and ‘‘species of species of management concern Permits. Removed paragraph 1, which management concern.’’ Added a associated with wind energy uses at the addressed the need for a monitoring definition for ‘‘historic property.’’ application stage. Revised to clarify that plan for site testing and feasibility 70.6—References. Added references. the provision applies only to permits. In paragraph 2, modified the 71—Site Testing and Feasibility applications for permits for construction reference to the Department of Energy’s Permits. Revised paragraph 1 to clarify and operation of a wind energy facility. National Wind Technology Center in the term of and option to extend site 73.11d—Lighting (73.4d in the final Golden, Colorado. testing and feasibility permits. directives). Clarified requirements In paragraph 3a, provided an 72.1—Pre-Proposal Meetings. Revised regarding lighting for wind energy exception to termination if a written paragraph 2g to provide for discussion facilities. Expanded and strengthened justification for the delay in installation of the need to coordinate with affected considerations regarding species of and operation of equipment is State agencies. management concern associated with submitted and accepted by the 72.21e—Historic Properties and wind energy uses at the application authorized officer prior to the time Cultural Considerations. Added this stage. Revised to clarify that the specified for termination. Moved and section. provision applies only to applications expanded the provisions governing site 72.31a—General Considerations for permits for construction and testing and feasibility studies and (72.21, Siting Considerations, in the operation of a wind energy facility. moved the provisions regarding final directives). Revised the second 73.12—Public Outreach (73.5 in the issuance of a wind energy facility to sentence of paragraph 2 (the last final directives). Revised to clarify that new section 75.11, entitled ‘‘Site Testing sentence in the first paragraph in 72.21 the provision applies only to and Feasibility Studies.’’ in the final directives) to clarify that it applications for permits for construction 75.13—Site Testing and Feasibility applies to wind energy facilities. and operation of a wind energy facility. Permit Form. Revised to require holders Removed paragraphs 4a through 4d as 73.21—Study Plan (73.31 in the final of these permits to obtain a construction duplicative. Removed paragraph 7a. directives). For clarity, revised the and reclamation bond of at least $2,000 72.31b—Recreational and Scenery introductory paragraph and paragraphs per MET. Considerations (72.21a in the final 7 and 8. 75.21—Pre-Authorization directives). Clarified paragraph 2b. 73.22—Plan of Development (73.32 in Requirements. Revised paragraph 4a 72.31d—Public Access Considerations the final directives). Revised paragraphs (para. 5a in the final directives) to state (72.21c in the final directives). Revised 5, 6, 7, 10, and 11. that an operating plan must, rather than to add more guidance regarding 73.23—Site Plan (73.33 in the final should, address minimizing hazards management of NFS roads and NFS directives). Revised to require the resulting from increased truck traffic. trails. authorized officer to consult with Revised paragraph 4b (para. 5b in the 72.31e—Wildlife, Fish, and Rare Plant applicants during preparation of a site final directives) to require an annual Considerations (72.21d, Species of plan. inspection of METs and other Management Concern, in the final 74—Requirements for Processing authorized wind energy equipment and directives). Clarified and narrowed the Wind Energy Applications. Added an annual report of the amount of scope of paragraphs 1 and 2. language regarding compliance with energy provided by the authorized 73.11a—Wildlife, Fish, and Rare Plant applicable law, including NEPA. Added facility and where that energy is sold. Considerations (73.4a, Species of section (sec. 74.1 in the final directives) Revised paragraph 5b (para. 6b in the Management Concern, in the final requiring environmental analysis for final directives) by removing the directives). Expanded and strengthened wind energy applications to comply reference to relocating wind energy considerations regarding species of with the Agency’s NEPA procedures facilities or staging areas. Removed management concern associated with and to be commensurate with the proposed paragraph 5c because it is wind energy uses at the application activities proposed and potential effects covered by proposed paragraph 5d stage. Revised to clarify that the anticipated. (para. 6c in the final directives). Revised provision applies only to applications 74.1—Effects on Species of paragraph 5e (para. 6d in the final for permits for construction and Management Concern (73.4a in the final directives) to provide for avoiding operation of a wind energy facility. directives). Revised to address more harassment and disturbance of wildlife 73.11b—Scenery Management (73.4b fully effects on wildlife from wind during fledging seasons. in the final directives). Revised and energy development and to clarify that 75.22—Authorization of Wind Energy expanded paragraph 1. Qualified the provision applies only to Facilities. Moved paragraph 2, which paragraph 7 (paragraph 4 in the final applications for permits for construction requires a construction bond, to section directives). Added a paragraph and operation of a wind energy facility. 75.21 to ensure that the bond will be regarding consideration of SIOs in 74.2—Applications Involving Lands obtained before the permit is issued. location, design, and construction of the under the Jurisdiction of Multiple Revised the last paragraph to provide an power line connecting a wind energy Agencies. Changed title to exception to the termination provisions project to the energy grid. Expanded and ‘‘Applications Involving Lands under if a written justification for the delay is strengthened considerations regarding the Jurisdiction of Multiple Federal submitted and accepted by the

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47388 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

authorized officer prior to the time collecting carcasses, name of the review. The Office of Management and specified for termination and the repository or academic collection where Budget (OMB) has determined that the authorized officer establishes a new carcasses will be sent, and proper final directives are significant for timeframe for the required actions. handling of tissue for possible future purposes of E.O. 12866. The final 76.1—Land Use Fees for Site Testing analyses of DNA. Clarified that FWS directives will not have an annual effect and Feasibility Permits. In paragraph 1, will be notified ‘‘within 24 hours’’ of $100 million or more on the increased the amount of the land use fee rather than ‘‘promptly’’ when the economy, nor will they adversely effect for each MET to $600. carcass of a bald or golden eagle is productivity, competition, jobs, the 77.4—Operational Requirements. found; carcasses of migratory birds will environment, public health and safety, Revised paragraph 1 by replacing be reported to the authorized officer and or State or local governments. The final ‘‘yearly’’ with ‘‘as needed.’’ Clarified FWS the next business day; other directives will not interfere with an paragraph 2 regarding security lighting. species should be reported in progress action taken or planned by another Revised paragraph 7 regarding impacts reports or as specified in the monitoring agency, nor will they raise new legal or on species of management concern and plan; and the authorized officer will be policy issues. Finally, the final their habitats. promptly notified when an anomalous directives will not alter the budgetary 80.4—Responsibilities. Added or unusually high mortality event impact of entitlement, grant, user fee, or interagency involvement to the occurs. loan programs or the rights and responsibilities of the authorized officer. 82.3—Other Monitoring. Removed 81—Monitoring Plans. Clarified that obligations of beneficiaries of those this section which eliminated the programs. Accordingly, the final monitoring is a requirement of phrase concerning species of substantial construction and operation permits and directives are not subject to OMB review public interest, because these species not site testing and feasibility permits under E.O. 12866. are included in the definition of species by amending introductory sentence. In accordance with the Office of of management concern in chapter 70 Added the concept of a trigger point for Management and Budget (OMB) and monitoring language which was in further mitigation as part of the conflict with section 82.1, paragraph 8. Circular A–4, ‘‘Regulatory Analysis,’’ a requirement of plan objectives. 83—Monitoring Tools and Evolving cost/benefit analysis was conducted. 82—Monitoring Objectives. Clarified The analysis compared the costs and the linkage between species abundance, Technology. Added the term ‘‘evolving technology’’ to the title of section 83 in benefits associated with the current presence or activity level and the suite condition of having Agency of environmental factors that potentially recognition of the fact that current methods of monitoring might be implementing procedures combined affect these measures. with Agency explanatory guidance in 82.1—Monitoring Wildlife Presence, replaced by improved methods in the future. Forest Service Handbook (FSH) and the Abundance, and Activity Levels. For proposed condition of having consistency, referred to wildlife 84—Adaptive Management. Added language throughout this chapter that implementing direction in regulation presence, abundance and activity levels and explanatory guidance in FSH. throughout the section. Replaced the any modifications to the permit should term ‘‘significant change’’ with ‘‘in be within limits that are practical and The wind energy directives have no approaching or has reached an feasible. Replaced the statement that the direct economic effect on any entities or undesired management threshold purpose of monitoring is to ensure individuals beyond what is imposed identified in the objective of the species’ facilities do not have long-term under current regulations and monitoring design.’’ Reduced the post- unacceptable impacts on wildlife with directives, such as cost recovery construction monitoring to a minimum the following statement: ‘‘The purpose associated with processing special use of 2 years, but indicated that 3 years of of monitoring wildlife at wind energy applications and monitoring special use monitoring is needed if significant risks facilities is to detect both desired and authorizations under 36 CFR 251.58. to any species of management concern undesired effects as soon as possible, The Agency anticipates that the wind have been identified or the permit has and to minimize undesired effects energy directives will reduce costs by been modified in response to outcomes through changes in operation to the providing clear direction, enhancing from the first 2 years of monitoring. extent possible.’’ consistency and efficiency in program administration. 82.2—Monitoring Mortality. 4. Regulatory Certifications for the Established a more precise monitoring Final Directives Moreover, the Forest Service has objective for mortality, i.e., ‘‘The considered the final directives in light objective of post-construction mortality Environmental Impacts of the Regulatory Flexibility Act (5 monitoring is to estimate the Forest Service regulations at 36 CFR U.S.C. 602 et seq.). The Forest Service approximate annual number of collision 220.6(d)(2) (73 FR 43096) exclude from has determined that the final directives fatalities of birds and bats on a per documentation in an EA or EIS ‘‘rules, will not have a significant economic turbine or per megawatt basis.’’ Noted regulations, or policies to establish impact on a substantial number of small that dog handler teams provide a higher Servicewide administrative procedures, entities as defined by the Act, because searching efficiency than human program processes, or instructions.’’ The the final directives will not impose searches alone. Clarified that Agency has concluded that the special recordkeeping requirements on them; preliminary tests may be needed to use and wildlife monitoring directives will not affect their competitive position determine the optimal search distance fall within this category of actions and in relation to large entities; and will not for local conditions. Clarified that when that no extraordinary circumstances affect their cash flow, liquidity, or a facility contains 10 or fewer turbines, exist which would require preparation ability to remain in the market. The all turbines will be sampled, and when of an EA or EIS. final directives will have no direct effect there are more than 10 turbines, 20 on small businesses. The final directives percent of the turbines will be sampled. Regulatory Impact merely clarify existing requirements that Clarified that the monitoring plan must The final directives have been apply to processing special use provide for details on documenting and reviewed under USDA procedures and proposals and applications and issuing mapping the location of carcasses, E.O. 12866 on regulatory planning and permits for wind energy uses.

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices 47389

No Taking Implications changes to the directives where cultural resources, including sacred The Agency has analyzed the final appropriate in response to those sites and other areas used for tribal directives in accordance with the concerns. traditional and cultural purposes, and principles and criteria contained in E.O. On August 25, 2010, the Deputy Chief treaty and reserved rights. 12630. The Agency has determined that for the National Forest System sent 3. Section 72.1, paragraph 2g, the final directives do not pose the risk letters to the Regional Foresters, Station specifies that the responsible official of a taking of private property. Directors, Area Director, IITF Director, should use pre-proposal meetings to Deputy Chiefs, and Washington Office clarify expectations for coordination Civil Justice Reform Directors inviting them to conduct and consultation with tribal The Agency has reviewed the final government-to-government consultation governments. directives under E.O. 12988 on civil with federally recognized tribes on the 4. Section 73.5, ‘‘Public Outreach,’’ justice reform. Upon adoption of the proposed wind energy directives. The was revised to direct the authorized final directives, (1) All State and local Forest Service considers tribal officer to ‘‘consult, as appropriate under laws and regulations that conflict with consultation as an ongoing, iterative relevant policy and direction, with the final directives or that impede their process that, as applicable, encompasses affected tribes after an application for a full implementation will be preempted; development of proposed directives wind energy project has been accepted, (2) no retroactive effect will be given to through issuance of final directives. as part of the ongoing government-to- the final directives; and (3) From late September 2010 to March government consultation process.’’ administrative proceedings will not be 2011, Forest and Grassland Supervisors In addition, the USDA Office of Tribal required before parties can file suit in and District Rangers in each Region Relations and the Forest Service are court challenging their provisions. made contacts in person and in writing conducting a policy review concerning to the tribes within their area of sacred sites and are consulting with Unfunded Mandates jurisdiction. These Forest Service tribes during this effort. The Forest Pursuant to Title II of the Unfunded officials met with tribal leaders or their Service has informed tribes of this Mandates Reform Act of 1995, (2 U.S.C. designees to discuss the proposed wind initiative and how they can participate 1531–1538), the Agency has assessed energy directives. The Agency received during the consultation meetings. the effects of the final directives on comments from tribes in the Northeast, Pursuant to Executive Order 13175 of State, local, and tribal governments and Northern, and Pacific Northwest November 6, 2000, ‘‘Consultation and the private sector. The final directives Regions. All comments received through Coordination with Indian Tribal will not compel the expenditure of $100 March 2011 were considered in Governments,’’ the Agency has assessed million or more by any State, local, or development of the final directives. the impact of the final directives on tribal government or anyone in the Several of the comments are outside the Indian tribal governments and has private sector. Therefore, a statement scope of the proposed directives and determined that the final directives do under section 202 of the act is not will be addressed project by project, as not significantly or uniquely affect required. appropriate, during development of a communities of Indian tribal particular wind energy facility. governments. The final directives Federalism To date, the Agency has heard from merely provide a framework that guides The Agency has considered the final tribal leaders that Forest Service the siting of wind energy facilities on directives under the requirements of activities associated with siting of wind NFS lands. E.O. 13132 on federalism and has energy facilities should consider the The Agency has also determined that determined that the final directives impacts on tribal traditional and these final directives do not impose conform with the federalism principles cultural resources, uses, and areas, substantial direct compliance costs on set out in this Executive order; will not including sacred sites. The tribes also Indian tribal governments. The final impose any compliance costs on the indicated that the Forest Service should directives do not mandate tribal States; and will not have substantial assess the impacts of wind energy participation. Instead, they provide direct effects on the States, the projects on treaty and reserved rights guidance to authorized officers to relationship between the Federal and the federal government’s trust consult with affected tribes once a wind Government and the States, or the responsibility. Several tribes energy application has been accepted distribution of power and emphasized a need to engage in tribal and to consider potential impacts on responsibilities among the various consultation early and continuously cultural resources and tribal rights levels of government. Therefore, the throughout the wind energy permitting throughout the wind energy permitting Agency has determined that no further process. process. assessment of federalism implications is The Agency addressed the comments Energy Effects necessary. received through the tribal consultation process in development of the final The Agency has reviewed the final Consultation and Coordination With directives. In response to the comments directives under E.O. 13211 of May 18, Indian Tribal Governments received from tribes, the final directives 2001, ‘‘Actions Concerning Regulations In recognition of the unique were changed as follows: That Significantly Affect Energy Supply, government-to-government relationship 1. To strengthen Section 70.5, Distribution, or Use.’’ The Agency has with federally recognized Indian tribes, ‘‘Definitions,’’ the word ‘‘significant’’ determined that the final directives do the Agency consulted with tribal was deleted from the term ‘‘cultural not constitute a significant energy action officials in developing these final resource,’’ and a definition for ‘‘historic as defined in the E.O. To the contrary, directives. In accordance with Executive property’’ was added. Corresponding the final directives could have a positive Order 13175, entitled ‘‘Consultation and changes to the references to cultural rather than a negative effect on the Coordination With Indian Tribal resources were made in sections 72.21b supply, distribution, and use of energy Governments,’’ and relevant policy and and 73.32, paragraph 9. to the extent the final directives provide direction, the Agency has considered 2. In Section 72.1, ‘‘Pre-Proposal direction on processing proposals and the concerns raised by tribes during the Meetings,’’ paragraph 2b was revised to applications and issuing special use consultation process and has made reflect potential issues associated with permits for wind energy uses.

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4703 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 47390 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Notices

Controlling Paperwork Burdens on the its implementing regulations at 5 CFR directives, visit the Forest Service’s Web Public part 1320 do not apply. site at http://www.fs.fed.us/im/ directives/. The final directives and this The final directives do not contain 5. Access to the Final Directives Federal Register notice are also any recordkeeping or reporting The Forest Service organizes its available electronically http:// requirements or other information www.fs.fed.us/specialuses/. collection requirements as defined in 5 Directive System by alphanumeric CFR part 1320 that are not already codes and subject headings. The Dated: July 28, 2011. required by law or not already approved intended audience for this direction is Thomas L. Tidwell, for use. Accordingly, the review Forest Service employees charged with Chief, Forest Service. provisions of the Paperwork Reduction issuing and administering wind energy [FR Doc. 2011–19673 Filed 8–3–11; 8:45 am] Act of 1995 (44 U.S.C. 3501 et seq.) and permits. To view the full text of the final BILLING CODE 3410–11–P

VerDate Mar<15>2010 17:50 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00038 Fmt 4701 Sfmt 9990 E:\FR\FM\04AUN2.SGM 04AUN2 mstockstill on DSK4VPTVN1PROD with NOTICES2 Vol. 76 Thursday, No. 150 August 4, 2011

Part IV

Environmental Protection Agency

40 CFR Part 98 Mandatory Reporting of Greenhouse Gases; Proposed Rule

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47392 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

ENVIRONMENTAL PROTECTION Building, Room 3334, 1301 Constitution to 4:30 p.m., Monday through Friday, AGENCY Avenue, NW., Washington, DC 20004. excluding legal holidays. The telephone Such deliveries are only accepted number for the Public Reading Room is 40 CFR Part 98 during the Docket’s normal hours of (202) 566–1744, and the telephone [EPA–HQ–OAR–2011–0147; FRL–9443–1] operation, and special arrangements number for the Air Docket is (202) 566– should be made for deliveries of boxed 1742. RIN 2060–AQ85 information. Instructions: Direct your comments to FOR FURTHER INFORMATION CONTACT: Mandatory Reporting of Greenhouse Docket ID No. EPA–HQ–OAR–2011– Carole Cook, Climate Change Division, Gases 0147, 2011 Technical Corrections, Office of Atmospheric Programs (MC– 6207J), Environmental Protection AGENCY: Environmental Protection Clarifying and Other Amendments to Agency (EPA). Certain Provisions of the Mandatory Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone ACTION: Proposed rule. Reporting of Greenhouse Gases Rule. EPA’s policy is that all comments number: (202) 343–9263; fax number: SUMMARY: EPA is proposing to amend received will be included in the public (202) 343–2342; e-mail address: specific provisions in the Mandatory docket without change and may be [email protected]. For Reporting of Greenhouse Gases Rule to made available online at http:// technical information, please go to the correct certain technical and editorial www.regulations.gov, including any Greenhouse Gas Reporting Rule Program errors that have been identified since personal information provided, unless Web site http://www.epa.gov/ promulgation and to clarify or propose the comment includes information climatechange/emissions/ amendments to certain provisions that claimed to be confidential business ghgrulemaking.html. To submit a have been the subject of questions from information (CBI) or other information question, select Rule Help Center, reporting entities. These proposed whose disclosure is restricted by statute. followed by Contact Us. To obtain changes include additional information Do not submit information that you information about the public hearing or to clarify compliance obligations, consider to be CBI or otherwise to register to speak at the hearing, please correct data reporting elements so they protected through http:// go to http://www.epa.gov/ more closely conform to the information www.regulations.gov or e-mail. The climatechange/emissions/ used to perform emission calculations, http://www.regulations.gov Web site is ghgrulemaking.html. Alternatively, and make other corrections and an ‘‘anonymous access’’ system, which contact Carole Cook at 202–343–9263. means EPA will not know your identity amendments. EPA has received Worldwide Web (WWW). In addition or contact information unless you petitions for reconsideration on some of to being available in the docket, an provide it in the body of your comment. these subparts. EPA is still considering electronic copy of this proposal will If you send an e-mail comment directly these petitions, and the issues raised in also be available through the WWW. to EPA without going through http:// the petitions are not discussed or Following the Administrator’s signature, www.regulations.gov your e-mail addressed in this action. a copy of this action will be posted on address will be automatically captured DATES: Comments. Comments must be EPA’s Greenhouse Gas Reporting and included as part of the comment received on or before September 19, Program Web site at http:// 2011. that is placed in the public docket and made available on the Internet. If you www.epa.gov/climatechange/emissions/ Public Hearing. EPA does not plan to ghgrulemaking.html. conduct a public hearing unless submit an electronic comment, EPA requested. To request a hearing, please recommends that you include your SUPPLEMENTARY INFORMATION: contact the person listed in the name and other contact information in the body of your comment and with any Additional Information on Submitting following FOR FURTHER INFORMATION Comments: To expedite review of your CONTACT section by August 11, 2011. If disk or CD–ROM you submit. If EPA cannot read your comment due to comments by Agency staff, you are requested, the hearing will be encouraged to send a separate copy of conducted on August 19, 2011, in the technical difficulties and cannot contact you for clarification, EPA may not be your comments, in addition to the copy Washington, DC area. EPA will provide you submit to the official docket, to further information about the hearing on able to consider your comment. Electronic files should avoid the use of Carole Cook, U.S. EPA, Office of its webpage if a hearing is requested. Atmospheric Programs, Climate Change ADDRESSES: You may submit your special characters, any form of encryption, and be free of any defects or Division, Mail Code 6207–J, comments, identified by Docket ID No. Washington, DC 20460, telephone (202) EPA–HQ–OAR–2011–0147 by any of the viruses. Docket: All documents in the docket 343–9263, e-mail address: following methods: [email protected]. • Federal eRulemaking Portal: http:// are listed in the http:// www.regulations.gov. Follow the online www.regulations.gov index. Although Regulated Entities. The Administrator instructions for submitting comments. listed in the index, some information is determined that this action is subject to • E-mail: [email protected]. not publicly available, e.g., CBI or other the provisions of Clean Air Act (CAA) Include Docket ID No. EPA–HQ–OAR– information whose disclosure is section 307(d). See CAA section 2011–0147 [and/or RIN number] in the restricted by statute. Certain other 307(d)(1)(V) (the provisions of section subject line of the message. material, such as copyrighted material, 307(d) apply to ‘‘such other actions as • Fax: (202) 566–9744. will be publicly available only in hard the Administrator may determine’’). • Mail: Environmental Protection copy. Publicly available docket These are proposed amendments to Agency, EPA Docket Center (EPA/DC), materials are available either existing regulations. If finalized, these Mailcode 2822T, Attention: Docket ID electronically in http:// amended regulations would affect No. EPA–HQ–OAR–2011–0147, 1200 www.regulations.gov or in hard copy at owners or operators of certain industrial Pennsylvania Avenue, NW., the Air Docket, EPA/DC, EPA West gas suppliers and direct emitters of Washington, DC 20004. Building, Room 3334, 1301 Constitution GHGs. Regulated categories and • Hand/Courier Delivery: EPA Docket Ave., NW., Washington, DC. This examples of affected entities include Center, Public Reading Room, EPA West Docket Facility is open from 8:30 a.m. those listed in Table 1 of this preamble:

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47393

TABLE 1—EXAMPLES OF AFFECTED ENTITIES BY CATEGORY

Category NAICS Examples of affected facilities

Petroleum and Natural Gas Systems ...... 486210 Pipeline transportation of natural gas. 221210 Natural gas distribution facilities. 211 Extractors of crude petroleum and natural gas. 211112 Natural gas liquid extraction facilities. Underground Coal Mines ...... 212113 Underground anthracite coal mining operations. 212112 Underground bituminous coal mining operations. Electrical Transmission and Distribution Equip- 221121 Electric bulk power transmission and control facilities. ment Use. Industrial Wastewater Treatment ...... 322110 Pulp mills. 322121 Paper mills. 322122 Newsprint mills 322130 Paperboard mills. 311611 Meat processing facilities. 311411 Frozen fruit, juice, and vegetable manufacturing facilities. 311421 Fruit and vegetable canning facilities. 325193 Ethanol manufacturing facilities. 324110 Petroleum refineries. Suppliers of Industrial GHGs ...... 325120 Industrial gas production facilities. Geologic Sequestration of Carbon Dioxide ...... N/A CO2 geologic sequestration projects Industrial Waste Landfills ...... 562212 Solid waste landfills. 322110 Pulp mills. 322121 Paper mills. 322122 Newsprint mills. 322130 Paperboard mills. 311611 Meat processing facilities. 311411 Frozen fruit, juice, and vegetable manufacturing facilities. 311421 Fruit and vegetable canning facilities. 221320 Sewage treatment facilities.

Table 1 of this preamble is not e-GGRT electronic-GHG Reporting Tool. II. Technical Corrections and Other intended to be exhaustive, but rather EPA U.S. Environmental Protection Amendments lists the types of facilities or suppliers Agency. A. Subpart A—General Provisions that EPA is now aware could be FR Federal Register. B. Subpart W—Petroleum and Natural Gas GHG greenhouse gas. Systems potentially affected by the reporting GHGRP Greenhouse Gas Reporting C. Subpart FF—Underground Coal Mines requirements. Other types of facilities Program. and suppliers than those listed in the HCFC hydrochlorofluorocarbon. D. Subpart II—Industrial Wastewater table could also be subject to reporting kg kilograms. Treatment requirements. To determine whether kg/ft3 kilograms per cubic foot. E. Subpart OO—Suppliers of Industrial you are affected by this action, you mcf methane correction factor. Greenhouse Gases should carefully examine the MMscf million standard cubic feet. F. Subpart RR—Geologic Sequestration of applicability criteria found in 40 CFR MRV monitoring, reporting and Carbon Dioxide verification. G. Subpart TT—Industrial Waste Landfills part 98, subpart A or the relevant MSHA Mine Safety and Health criteria in the sections related to III. Statutory and Executive Order Reviews Administration. A. Executive Order 12866: Regulatory suppliers and direct emitters of GHGs. MtCO 2e metric tons carbon dioxide Planning and Review and Executive If you have questions regarding the equivalent. Order 13563: Improving Regulation and applicability of this action to a N2O nitrous oxide. Regulatory Review particular facility or supplier, consult NAICS North American Industry B. Paperwork Reduction Act the person listed in the preceding FOR Classification System. NOAA National Oceanic and Atmospheric C. Regulatory Flexibility Act (RFA) FURTHER INFORMATION CONTACT Section. Administration. D. Unfunded Mandates Reform Act Acronyms and Abbreviations. The NTTAA National Technology Transfer and (UMRA) following acronyms and abbreviations Advancement Act. E. Executive Order 13132: Federalism are used in this document. OMB Office of Management and Budget. F. Executive Order 13175: Consultation acf actual cubic feet. PFCs perfluorocarbons. and Coordination with Indian Tribal AGR acid gas removal. psia pounds per square inch absolute. Governments ASTM American Society for Testing and RFA Regulatory Flexibility Act. G. Executive Order 13045: Protection of Materials. SF6 sulfur hexafluoride. Children from Environmental Health U.S. United States. BAMM best available monitoring methods. Risks and Safety Risks UMRA Unfunded Mandates Reform Act of CAA Clean Air Act. H. Executive Order 13211: Actions that CBI confidential business information. 1995. Significantly Affect Energy Supply, CEMS continuous emissions monitoring Table of Contents Distribution, or Use system. CFC chlorofluorocarbon. I. Background I. National Technology Transfer and CFR Code of Federal Regulations. A. How is this preamble organized? Advancement Act CH4 methane. B. Background on This Action J. Executive Order 12898: Federal Actions CO2 carbon dioxide. C. Legal Authority to Address Environmental Justice in DOC degradable organic carbon. D. How would these amendments apply to Minority Populations and Low-Income EF emission factor. 2012 reports? Populations

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47394 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

I. Background authority, specifically authorities cubic feet (acf) of methane (CH4) or provided in CAA section 114. more per year (equivalent to 100,000 acf A. How is this preamble organized? As stated in the preamble to the 2009 of CH4 or more per day). If the current The first section of this preamble final rule (74 FR 56260) and the regulatory threshold is retained, all contains the basic background Response to Comments on the Proposed mines that are currently subject to information about the origin of these Rule, Volume 9, Legal Issues, CAA quarterly or more frequent sampling by proposed rule amendments and request section 114 provides EPA broad Mine Safety and Health Administration for public comment. This section also authority to require the information (MSHA) would be required to report. discusses EPA’s use of our legal proposed to be gathered by this rule Given that the original requirements authority under the Clean Air Act to because such data would inform and are were based on an incorrect assumption collect data under the Mandatory relevant to EPA’s carrying out a wide regarding the number of mines that Reporting of Greenhouse Gases (GHG variety of CAA provisions. As discussed MSHA samples, we are proposing a new reporting) rule. in the preamble to the initial proposed threshold that will remove reporting The second section of this preamble rule (74 FR 16448, April 10, 2009), CAA requirements for approximately 500 describes in detail the changes that are section 114(a)(1) authorizes the mines (see relevant discussion in being proposed to correct technical Administrator to require emissions Section II.C of this preamble). We are errors, to provide clarification, or sources, persons subject to the CAA, also proposing provisions to clarify the propose amendments to address manufacturers of control or process time period during which information implementation issues identified by equipment, or persons whom the must be submitted to EPA and to clarify EPA and others. This section also Administrator believes may have which information may be submitted presents EPA’s rationale for the necessary information to monitor and through the electronic Greenhouse Gas proposed changes and identifies issues report emissions and provide such other Reporting Tool (e-GGRT) and which on which EPA is particularly interested information the Administrator requests must be mailed to the Director of the in receiving public comments. for the purposes of carrying out any Climate Change Division. We are also provision of the CAA. For further proposing a revision to the definition of Finally, the last (third) section of the information about EPA’s legal authority, preamble discusses the various statutory ‘‘supplier’’ to be consistent with see the preambles to the 2009 proposed changes made to the rule during 2010. and executive order requirements and final rules and EPA’s Response to applicable to this proposed rulemaking. These changes impose no additional Comments, Volume 9. burden for facilities, and could be B. Background on This Action D. How would these amendments apply readily implemented for the 2011 The 2009 final GHG reporting rule to 2012 reports? reporting year. (2009 final rule) was signed by EPA EPA is planning to address the Many proposed revisions provide Administrator Lisa Jackson on comments on these proposed additional information to provide clarity September 22, 2009 and published in amendments and publish the final on existing requirements. For example, the Federal Register on October 30, amendments before the end of 2011. in subpart W (Petroleum and Natural 2009 (74 FR 56260, October 30, 2009). Therefore, reporters would be expected Gas Systems) we are providing The 2009 final rule, which became to calculate emissions and other additional clarity on the methodological effective on December 29, 2009, relevant data for the reports that are options for calculating emissions from includes reporting of GHGs from various submitted in 2012 using 40 CFR part 98 acid gas removal units and emissions facilities and suppliers, consistent with as amended by this proposed action. We from well venting for liquids unloading. the 2008 Consolidated Appropriations have determined that it is feasible for In subpart FF (Underground Coal Act.1 Subsequent notices were the sources to implement these changes Mines) we are proposing to clarify use published in 2010 finalizing the for the 2011 reporting year because the of MSHA data to calculate emissions. requirements for subparts FF, II, and TT revisions primarily provide additional While MSHA data may be used to (75 FR 39736, July 12, 2010), subpart W clarifications regarding the existing collect data for volume and (75 FR 74458, November 30, 2010), regulatory requirements, do not change concentration of methane, it does not subpart DD (75 FR 74774, December 1, the type of information that must be provide temperature and pressure data; 2010) and subpart RR (75 FR 75060, collected, and do not materially affect therefore, we are proposing that December 1, 2010). Subpart OO, which how emissions are calculated. measurements of temperature must be was promulgated as part of the 2009 For example, EPA is proposing made at the same time as MSHA final rule was also revised in 2010 (75 several technical clarifications and measurements for volume and FR 79092, December 17, 2010). The amendments to subpart A to address concentration of methane and that for source categories in 40 CFR part 98 issues raised by reporters through pressure, facilities must use either a cover approximately 85–90 percent of questions to the hotline in late 2010 and measured value or the average annual U.S. GHG emissions through reporting early 2011, as well as those identified by barometric pressure from the nearest by direct emitters, as well as suppliers EPA. For additional background National Oceanic and Atmospheric of certain products that would result in information on the questions raised, Administration (NOAA) weather service GHG emission when released, used, or please refer to the Technical Support station. This proposed clarification is oxidized, and those that geologically Document for the 2011 Technical consistent with clarifications EPA has sequester or otherwise inject carbon Corrections, Clarifying and Other issued in response to industry questions dioxide (CO2) underground. Amendments to Certain Provisions of and does not change the rule the Mandatory Reporting of Greenhouse requirements for facilities collecting C. Legal Authority Gases Rule proposal available in the data in 2011 because the requirements EPA is proposing these rule docket to this rulemaking (EPA–HQ– to collect temperature and pressure data amendments under its existing CAA OAR–2011–0147). For instance, we are were already clear in 40 CFR proposing to change the threshold for 98.324(b)(1). In subpart RR, clarifying 1 Consolidated Appropriations Act, 2008, Public underground coal mines to include only text is proposed in 40 CFR 98.443(d) to Law 110–161, 121 Stat. 1844, 2128. those that liberate 36,500,000 actual ensure that facilities account for CO2

VerDate Mar<15>2010 19:14 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47395

entrained in produced fluids from oil or and Volatile Solids in Solid and • Corrections to terms and definitions gas production wells or from other fluid Semisolid Samples,’’ in which the in certain equations. wells that are not processed through a volatile solids concentration is • Corrections to data reporting gas-liquid separator. Although we determined on a dry basis. These requirements so that they more closely intended that CO2 content in all clarifications do not result in additional conform to the information used to produced liquids would be determined requirements; therefore, EPA has perform emission calculations. (see Section II.B.4 of the preamble to the concluded that reporters subject to the • Other amendments related to final subpart RR rule (75 FR 75065, subparts that would be amended by this certain issues identified as a result of December 1, 2010)), the text in 40 CFR proposed action can follow the rule, as working with the affected sources 98.443(d) and associated equations were amended, in submitting their reports in during rule implementation and based on measurements that did not 2012 and thereafter. outreach. include fluids removed without the use Finally, EPA is proposing other We are seeking public comment only of a separator, such as water removed technical corrections (e.g., correcting on the issues specifically identified in for pressure relief. Therefore, the cross references) that have no impact on this notice for the identified subparts. clarifying text does not change the rule facilities’ data collection efforts in 2011. We will not respond to any comments requirements for facilities collecting In summary, these amendments addressing other aspects of 40 CFR part data in 2011. would not require any additional 98. Other proposed amendments provide monitoring or information collection A. Subpart A—General Provisions additional clarity to the data reporting above what was already included in 40 elements. For example, in subpart II CFR part 98. Therefore, we expect that EPA is proposing several technical (Industrial Wastewater Treatment) we sources can use the same information clarifications and amendments to are proposing to clarify what is meant that they have been collecting under 40 subpart A to address issues raised by by weekly sampling in 40 CFR 98.353(c) CFR part 98 for each subpart to calculate reporters and identified by EPA during and (d); the proposed revisions would and report GHG emissions for 2011 and the first year of implementation of the clarify that reporters that sample only submit reports in 2012 under the GHG Reporting Program (GHGRP), as once per week must sample more than amended subparts. well as to clarify terminology to ensure three days apart. EPA generally seeks comment on the consistency across all subparts. In For some subparts, we are proposing conclusion that it is appropriate to addition, a number of minor amendments that would provide implement these amendments and amendments are proposed to ensure that additional flexibility to the sources. incorporate the requirements in the data the General Provisions appropriately Thus, while they would be free to use reported to EPA in 2012. Further, we reflect the incorporation of the the amended regulations once final, seek comment on whether there are additional subparts into the GHGRP that facilities are not required to follow the specific subparts and specific proposed were finalized in 2010. amendments for 2011 data collection. changes where this timeline may not be Threshold for Electrical Transmission For example, in subpart TT (Industrial feasible or appropriate due to the nature and Distribution Equipment Use. We are Waste Landfills), facilities are provided of the proposed changes or the way in proposing to amend Table A–3 in the an additional approach for determining which data have been collected thus far General Provisions to clarify the volatile solids concentration or the in 2011. We request that commenters applicability of the rule for Electrical waste-specific degradable organic provide specific examples of how the Transmission and Distribution carbon (DOC) values for historically proposed implementation schedule Equipment Use (subpart DD). The final disposed streams. The July 12, 2010 would or would not work. subpart DD rule (December 1, 2010; 75 final rule had no provisions by which FR 74774) specifies at § 98.301 that waste streams that were not disposed of II. Technical Corrections and Other reporting is required for an electric in the first reporting year could be Amendments power system only if the total assessed. These waste streams were Following promulgation of subparts A nameplate capacity of SF6 and PFC required to use the default DOC values, and OO on October 30, 2009, subparts containing equipment located within which have a high degree of FF, II, and TT on July 12, 2010, subpart the electric power system, when added uncertainty. The proposed revision W on November 30, 2010, and subparts to the total nameplate capacity of SF6 allows owners and operators of DD and RR on December 1, 2010, EPA and PFC containing equipment that is industrial waste landfills to develop has identified errors in the regulatory not located within the electric power more accurate values for volatile solids language that we are now proposing to system but is under common ownership concentration and site-specific DOC. correct. These errors were identified as or control, exceeds 17,820 pounds. That With these proposed amendments, these a result of working with affected section of the rule also specifies that a facilities would have the option, but not industries to implement these subparts. facility other than an electric power be required, to use the newly proposed We have also identified certain rule system that is subject to part 98 because option for the reports submitted to EPA provisions that should be amended to of emissions from another source in 2012 and thereafter. provide greater clarity. The amendments category is only required to report EPA is also proposing corrections to we are now proposing include the emissions under subpart DD if the total terms and definitions in certain following types of changes: nameplate capacity of SF6 and PFC equations. For example, in subpart TT • Changes to correct cross references containing equipment located within (Industrial Waste Landfill), we are within and between subparts. that facility exceeds 17,820 pounds. The proposing to delete Equation TT–7 and • Additional information to better or final rule, however, does not include the amend Equation TT–8, which were more fully understand compliance 17,820 pound capacity threshold in incorrectly based on the assumption obligations in a specific provision, such Table A–3. Some potential reporters that the volatile solids concentration as the reference to a standardized have questioned if this omission means was expected to have units of mass of method that must be followed. that all facilities with electric power volatile solids per mass of (wet) waste. • Amendments to certain equations to equipment must submit an annual We are correcting these equations per better reflect actual operating report, even if they are below the Standard Method 2540G ‘‘Total, Fixed, conditions. capacity threshold and are not

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47396 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

otherwise required to report under any March 31, 2012 to September 28, 2012 required data reporting elements by other provisions of part 98. This would apply only to reporting of data March 31, 2012, but would not report interpretation is clearly not the intent of elements under the following source information related to the new 2011 the rule. The regulatory text in the final categories: Electronics Manufacturing reporting year source categories until rule can and should be interpreted to (subpart I), Fluorinated Gas Production September 28, 2012. mean that a facility is required to submit (subpart L), Magnesium Production Reporting on use of Best Available an annual report only if the capacity (subpart T), Petroleum and Natural Gas Monitoring Methods (BAMM). We are threshold is exceeded. This Systems (subpart W), Use of Electric proposing to amend 40 CFR 98.3(c)(7) to interpretation is clear from the preamble Transmission and Distribution remove the phrase ‘‘according to to the proposal (74 FR 16609) as well as Equipment (subpart DD), Underground paragraph (d) of this section’’ thereby the final rule (75 FR 74774)). However, Coal Mines (subpart FF), Industrial requiring all facilities and suppliers that we are proposing to revise Table A–3 to Wastewater Treatment (subpart II), use BAMM to provide a brief insert the capacity threshold language of Imports and Exports of Equipment Pre- description of each ‘‘best available § 98.301 to make the rule clearer and charged with Fluorinated GHGs or monitoring method’’ used, the less subject to misinterpretation. Containing Fluorinated GHGs in parameter measured using the method, Because the test for whether a facility Closed–cell Foams (subpart QQ), and the time period during which the meets the numerical threshold differs Geologic Sequestration of Carbon ‘‘best available monitoring method’’ was depending on the type of facility, we are Dioxide (subpart RR), Manufacture of used, if applicable. This reporting including a reference to § 98.301. Electric Transmission and Distribution requirement was applicable to all Therefore, we are revising the Table A– (subpart SS), Industrial Waste Landfills facilities and suppliers using BAMM in 3 entry for subpart DD to read as (subpart TT), and Injection of Carbon the 2009 final rule. Most of the subparts follows: Electrical transmission and Dioxide (subpart UU). promulgated in 2010 (subparts T, DD, distribution use at facilities where the All facilities and suppliers subject to FF, II, QQ, RR, SS, TT, and UU) directly total nameplate capacity of SF6 and PFC the GHGRP, including facilities and referred back to the procedures in 40 containing equipment exceeds 17,820 suppliers that include the source CFR 98.3(d), and therefore the pounds, as determined under § 98.301 categories listed above, would still be requirement to report basic information (subpart DD). required to report their GHG on BAMM is required. Through this Threshold for Underground Coal information for all other subparts by amendment, we are clarifying that this Mines. We are proposing to change the March 31, 2012. For example, a facility basic information must be reported for threshold for underground coal mines to subject to report GHG information under all subparts, including subparts L include only those that have ventilation subparts C, W, and PP would still be (Fluorinated Gas Production) and W emissions of 36,500,000 acf of CH4 or required to report GHG information for (Petroleum and Natural Gas Systems). more per year. For a full description of subparts C and PP by March 31, 2012, This does not impact the requirements this proposed change, please refer to the but would not be required to submit the of subpart I (Electronics Manufacturing), relevant discussion under subpart FF of required data reporting elements under which already directly include this this action. subpart W until September 28, 2012. reporting requirement in the data Computation of Time. EPA is We are proposing this change to the reporting requirements of that subpart. 2012 reporting deadline for the new proposing to add a provision to 40 CFR Definitions 98.3(b) to allow information, including 2011 reporting year source categories in but not limited to, the annual GHG order to allow sufficient time for Blowdown vent stack. We are report and any subsequent re- development, and more importantly proposing to amend the definition of submissions, the certificate of stakeholder testing, of the electronic- blowdown vent stack emissions to add representation, and requests to use best GHG Reporting Tool (e-GGRT). the phrase ‘‘emissions from emergency available monitoring methods, to be Stakeholder testing provides an events are not included.’’ EPA is submitted to EPA on the next business opportunity for EPA to receive feedback proposing to make this change to day in the event that a regulatory from reporters and other interested promote better consistency with deadline falls on a weekend or a Federal stakeholders to enable EPA to test the provisions in subpart C, which holiday. The proposed language is effectiveness of the user interface of e- exempted emissions from emergency consistent with a similar provision GGRT, correct any problems in advance generators and equipment from being under the Acid Rain Program (40 CFR of the reporting deadline, and ultimately included in the GHG emissions 72.11) and will provide all reasonable ensure that the data received under the calculations. Supplier. Based on changes made to flexibilities for submitting data without program are of the highest quality. the rule during 2010, the definition of compromising data quality. Stakeholder testing of the electronic 2012 Reporting Deadline. We are reporting tool for the new 2011 supplier does not adequately represent proposing a one-time extension of the reporting year source categories is the breadth of subparts covered under 2012 reporting deadline for facilities particularly important given the large the rule. EPA is proposing to change the and suppliers subject to source number of reporters affected by these definition of supplier in 40 CFR 98.6 so categories for which data collection new categories (more than one quarter it specifically refers to those source began January 1, 2011 (referred to below of all reporters are estimated to be categories listed in Table A–5 to subpart as the ‘‘new 2011 reporting year source required to report under these new A of part 98, and is as described in the categories’’).2 A deadline extension from subparts). definition of the source category in the Based on the discussion above, we are applicable subparts. 2 There was a separate one-time extension of the seeking comment on whether a six- The proposed amendment is reporting deadline for facilities and suppliers first month extension of the 2012 reporting necessary because suppliers are required to report GHG information to EPA in 2011, deadline for the new 2011 reporting currently defined as suppliers of fossil for data collected during 2010 (76 FR 14812). The year source categories to September 28, fuels and industrial GHGs. However, deadline extension in this proposal only applies to the reporting of information from those source 2012, would be appropriate. Facilities during 2010, EPA changed the categories for which data collection began in 2011 and suppliers subject to the rule would definition of fossil fuels in a rulemaking and for which data are to be reported in 2012. still be required to report all other (75 FR 79092) that could be wrongly

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47397

interpreted to exclude some suppliers of the annual GHG report. This raised a than 15,000 mtCO2e for 3 years, they are that are clearly subject to the rule. In the question as to whether the certificate of required to notify EPA by March 31 of 2009 final rule, fossil fuel was defined representation could be submitted the following year that they are no in 40 CFR 98.6 as meaning natural gas, through the mail. longer to report for the year after the petroleum, coal, or any form of solid, To address this potential source of year in which these conditions have liquid, or gaseous fuel derived from confusion, we are clarifying that the been met. Similarly, the owner or such material, including for example, annual GHG report, the certificate of operator is exempt from reporting in the consumer products that are derived representation, and all other requests, years following the year in which from such materials and are combusted. notifications, or communications that cessation of such operations occurs, Using this definition, suppliers of fossil can be submitted through e-GGRT, must provided that the owner or operator fuel-based products were covered by be submitted through e-GGRT. All other submits a notification to the subparts MM and NN regardless of the requests, notifications, or Administrator. However, the rule does product end-use. This interpretation is communications to the Administrator not provide a date by which such clear from the preamble to the 2009 pursuant to this part shall be submitted notification be made. EPA is proposing final rule (74 FR 56260). However, in through the mail to the Director of the that, similar to the requirements in 40 the subsequent rulemaking (75 FR Climate Change Division. CFR 98.2(i)(1) and (i)(2), owners or 79092) EPA modified the definition of Other Technical Corrections. We are operators notify EPA by March 31 of the fossil fuel to read natural gas, proposing to amend 40 CFR 98.2(d) and year following the reporting year in petroleum, coal, or any form of solid, (e) to remove references to paragraphs which such conditions have been met. liquid, or gaseous fuel derived from 40 CFR 98.2(a)(4)(i) and (a)(4)(ii), In 40 CFR 98.3(c)(10) and in the such material, for purpose of creating respectively, which were removed when definition of United State parent useful heat. We were clear in the we finalized amendments during 2010 company(s) in 40 CFR 98.6, we are preamble to that final rule that the to consolidate the lists of source proposing to replace the term ‘‘reporting change was not intended to have any categories covered into tables. The entity’’ with the term ‘‘facility or impact on coverage of GHGs under the correct references for both paragraphs supplier.’’ Reporting entity has not GHGRP (see 75 FR 79104). Nevertheless, should have been to 40 CFR 98.2(a)(4). typically been used in the GHGRP and referring to only suppliers of fossil fuels In those same paragraphs we are for consistency across the individual could now wrongly be interpreted so as clarifying that the applicability subparts of the rule, we are proposing to to exclude some coverage under determination for importers should be use the term ‘‘facility or supplier’’ subparts MM and NN. assessed separately from the which in turn clarifies that the In addition, we added a new source applicability determination for obligation is on the owner or operator of category to the rule called Importers and exporters. In other words, the emissions any such facility or supplier. This is Exporters of Fluorinated GHGs from the quantity of GHGs imported consistent with the preamble to the rule Contained in Pre-charged Equipment or should be calculated for comparison to that amended 40 CFR part 98 with 40 Closed-cell Foams (subpart QQ, 75 FR the 25,000 metric tons CO2e threshold CFR 98.3(c)(10), in which it is clear that 74774). Although one could interpret and separately the quantity of GHGs ‘‘reporting entity’’ means ‘‘facility or the existing definition to include exported should be calculated for supplier’’ (see, for example, 75 FR suppliers of fluorinated GHGs in bulk comparison to the 25,000 metric tons 57676). and in products, the proposed CO2e. Based on questions received from To address several requests for amendment further clarifies that reporters during the 2010 reporting year, clarification received on the suppliers include all the relevant source it was unclear if the quantity of imports recordkeeping requirements, we are categories included in Table A–5. and exports should be assessed proposing to clarify that the 3-year We are also proposing a harmonizing separately, added together, or the net requirement for retention of records change in 40 CFR 98.1(a)(1) to remove imports minus exports calculated for starts from the date of submission of the the terms ‘‘fossil fuel’’ and ‘‘industrial comparison to the threshold. Finally, we annual GHG report for the reporting greenhouse gas’’ before the term are clarifying in Table A–5 that coverage year in which the record was generated. ‘‘supplier.’’ and the applicability determination for This is as opposed to having the 3-year Submission of reports and other importers and exporters under subpart clock start on the day that the record information to EPA. There were some MM includes suppliers of natural gas was generated. The proposal, which is questions raised in the 2009 final rule liquids in addition to suppliers of consistent with the Acid Rain Program, about where certain communications petroleum products. The inclusion of is in recognition of the fact that common should be directed, whether natural gas liquids suppliers was clear practice is to retain all of the records for electronically through the electronic in 40 CFR 98.2(a)(4) and subpart MM a single reporting year in a readily greenhouse gas reporting tool (40 CFR (40 CFR 98.390), however, it was retrievable format, regardless if the 98.5) or through the mail with an inadvertently omitted from Table A–5. record was generated on January 1st or attention to the Director of the Climate We are proposing to amend 40 CFR December 31st of that reporting year. Change Division (40 CFR 98.9). 40 CFR 98.2(i)(3) to add a date by which owners We are therefore proposing that the 98.5 reads that each GHG report and and operators must notify EPA that they records be retained for 3 years from the certificate of representation for a facility no longer need to submit an annual data of submission of the applicable or supplier must be submitted GHG report because their operations annual GHG report. electronically in a format specified by have changed such that all applicable In 40 CFR 98.3(c)(5)(ii) we are the Administrator. 40 CFR 98.9 was GHG-emitting processes and operations proposing to replace the use of the term intended to provide a mailing address cease to operate. 40 CFR 98.2(i) provides ‘‘emissions’’ with ‘‘quantities’’ when for all other communications under the three instances where facilities or referring to the information reported program, however, the regulatory suppliers no longer need to report to under industrial GHG suppliers. This is language indicated that the mailing EPA. In instances where facilities or consistent with efforts throughout the address was for all requests, suppliers report less than 25,000 metric GHG Reporting Program to clarify that notifications, and communications to tons carbon dioxide equivalent information reported for supplier the Administrator other than submittal (mtCO2e) per year for 5 years, or less categories do not necessarily reflect

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47398 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

emissions to the atmosphere, but rather that the greenhouse gases to be reported include a reference to 40 CFR ‘‘quantities’’ that may be released if all under the natural gas processing 98.233(u)(2)(i) to clarify how and at of the supply were combusted or industry segment include nitrous oxide what frequency GHGi is to be released. (N2O) emissions and not just CO2 and determined for produced natural gas We are also proposing to correct an CH4 emissions. This proposed from the onshore production industry incorrect cross reference in 40 CFR amendment will make 40 CFR 98.232(d) segment. We are proposing these 98.4(m)(4) from (m)(2)(iv)(A) to consistent with other provisions in the amendments to Equations W–1 and W– (m)(2)(v)(A). rule related to calculating GHG 2, to clarify specific aspects of the B. Subpart W—Petroleum and Natural emissions from flare stacks. The rule in parameter GHGi and how it applies to Gas Systems 40 CFR 98.232(j) clearly states that you applicable industry segments and how it are required to report CO2, CH4 and N2O is to be determined to address lack of EPA is proposing several technical emissions for all flare stacks in all clarity on these aspects of the equation. clarifications and amendments to applicable industry segments and flare Next, we are proposing amendments subpart W to address issues raised stacks are included to be reported in to 40 CFR 98.233(d) to clarify how the during the first year of promulgation of natural gas processing facilities four different methods are to be used for the rule, as well as clarifications to (98.232(d)(6)). Finally, the calculation determining GHG emissions from acid specified provisions in the rule to methodology for flare stack emissions gas removal (AGR) vents. In many cases ensure consistency across all subparts. includes the method for quantifying a reporter may have both a continuous In addition, several technical N2O emissions from these stacks (See emissions monitoring system (CEMS) or corrections are proposed to clarify section 98.233(n)(8)). This proposed a vent meter available at their facility, provisions that were either erroneous or clarification avoids confusion as to and when reviewing the methods in 40 unclear to reporters. whether N2O emissions, which typically CFR 98.233(d) in the final rule, the Definitions. EPA is proposing to result from flaring activities, would reporter would not be able to easily amend the definition for gas well in 40 need to be reported under this industry determine which method would apply CFR 98.238. The definition of gas well segment. when certain technologies are available. that was finalized in the rule, posed the In addition, we are proposing to Thus, we are proposing to amend 40 question of whether or not gas wells that clarify in 40 CFR 98.232(i) that CO2 and CFR 98.233(d)(2), (3) and (4) to clarify included any hydrocarbon condensate CH4 emissions are to be reported from that if a facility has a vent meter but no were also considered gas wells. The the natural gas distribution industry CEMs available for determining the CO2 amendment clarifies the definition for segment. This clarification was emissions from AGR units then they gas well by stating that it includes gas necessary to ensure that the affected would use Calculation Methodology 2 wells that also produce natural gas reporters are aware that these GHG’s are and if a facility has neither a CEMs in including condensate. to be reported from this industry place or a vent meter in place, they have Threshold Clarifications. EPA is segment. the option of using either Calculation broadly including clarification to Calculating Greenhouse Gas Methodology 3 or 4 of 40 CFR 98.233(d). several throughput thresholds in Emissions. We are proposing several Next, we are proposing several subpart W in response to clarifications clarifications, corrections, and amendments to 40 CFR 98.233(e) for sought by reporters subject to the rule. amendments throughout 40 CFR 98.233. calculating emissions from dehydrator We are proposing to amend the First, we are proposing to amend the vents. First, we are proposing to include threshold in the definition of the source definition for GHGi of Equation W–1 in minor non-substantive revisions to the category for the onshore natural gas 40 CFR 98.233(a) which is used for citations in 40 CFR 98.233(e) and processing industry segment in 40 CFR calculating GHG emissions from natural (e)(1)(xi)(C). Next we are proposing to 98.230(a)(2). This definition includes a gas pneumatic device venting. In fix an erroneous citation in 40 CFR threshold provision, which states that specific, the definition for the parameter 98.233(e)(1)(xi) to correctly reference 40 all processing facilities that do not GHGi in Equation W–1 was incorrect in CFR 98.233(e)(1)(xi) instead of 40 CFR fractionate with a throughput per day of that it inferred that it applied to 98.233(e)(2)(xi). Finally, we are 25 million standard cubic feet (MMscf) facilities listed in 40 CFR 98.230(a)(3) proposing to amend 40 CFR 98.233(e)(1) or greater are covered under the rule. through (a)(8) when it actually only and (e)(2) to clarify that the throughput Without a clarification on how the 25 applies to the onshore production, threshold of 0.4 million standard cubic MMscf per day is to be determined, this natural gas transmission, and feet per day is to be determined using provision resulted in confusion for underground natural gas storage an annual average daily throughput. We reporters. Thus, we propose to amend industry segments of subpart W. In are proposing to include this particular the definition to state that the 25 MMscf addition, we are proposing to further amendment to clarify to reporters how per day throughput threshold is based amend the definition for parameter this throughput threshold is to be on an annual average throughput that GHGi in Equation W–1 to clarify that determined. the reporter would use to determine if GHGi should equal 0.952 for CH4 and 1 We are proposing to amend they are covered under this definition. X 10–3 for CO2 for facilities in 40 CFR engineering Equation W–8, which is Similarly, we are proposing to clarify 98.230(a)(4) and (a)(5). Previously, this used to calculate emissions from well that the throughput threshold for glycol equation did not include any venting for liquids unloading. First, we dehydrators (40 CFR 98.233(e)(1) and clarification of what the parameter GHGi are proposing to amend the first (e)(2)) and onshore production storage would be for methane and carbon sentence in 40 CFR 98.233(f)(2) to state tanks (40 CFR 98.233(j)(1),(j)(2),(j)(3) dioxide and as a result confusion arose that Calculation Methodology 2 is to be and (j)(4)) are also based on annual as to what values should be used for the used to calculate the total emissions for average throughput. These proposed natural gas transmission and well venting for liquids unloading amendments are described further in the underground natural gas storage whereas the rule previously stated that Calculating Greenhouse Gas Emissions industry segments. Further, for both Calculation Methodology 2 was to be section below. Equation W–1, and W–2, of 40 CFR used to calculate emissions from each Greenhouse Gases to Report. We are 98.233, we are proposing to amend the well venting for liquids unloading proposing to clarify in 40 CFR 98.232(d) definition for the parameter GHGi to event. This clarification is in line with

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47399

the equation in that the emissions from equipment type. Equation W–14 in 40 In 40 CFR 98.233(k) we are proposing well venting for liquids unloading that CFR 98.233(i) determines emissions on the inclusion of minor revisions to 40 have occurred in the year of data a unique volume basis; therefore, CFR 98.233(k)(2) and (k)(4) to clarify collection are to be summed and an emissions should be reported as such. that emissions to be calculated are annual value would result for all wells, In addition, we are proposing to make annual emissions. In addition, we are as opposed to each well separately. amendments to equations and proposing to revise 40 CFR We are proposing to amend Equation parameters dependant on CH4 and CO2 98.233(k)(4)(i) by removing the W–13 to include corrections and composition by making clarifications to reference to 40 CFR 98.233(j)(1) as this clarifications to the parameter the parameter, GHGs used to convert reference was incorrectly directed to the definitions. First we are proposing to whole gas, total hydrocarbon, or onshore production storage tank correct parameter Ea,n, EFwo, and Vf to methane emissions into volumetric or calculations where owners and state that they represent standard mass CO2, and CH4 emissions in operators could use a software program conditions and not actual conditions. Equations W–1, W–2, W–30, and W–31. to determine flashing emissions which Secondly, we are proposing a correction In 40 CFR 98.233(j) we are proposing are not covered under the transmission to the emission factor (EF) value in EFwo to clarify that the throughput threshold storage tanks calculations. Finally, we that was based on actual conditions and referenced in Calculation Methodologies are also proposing to revise 40 CFR should have been in standard 1–4 is based on an annual average daily 98.233(k)(4)(ii) by clarifying that the conditions. This proposed change throughput of oil, whereas the rule gave flare stack calculations are to be used for would result in the emissions factor no clarification as to what basis the oil emissions that are sent to a flare and not value adjustment EFwo = 2,454 to 3,114 throughput was based on, resulting in from a flare. The latter resulted in standard cubic feet per workover. Next, many questions from affected owners confusion from reporters as to what we are proposing to revise the definition and operators on how this throughput emissions they would be capturing by of Ea,n to Es,n to clarify that the annual threshold was to be determined. We are using the flare calculation natural gas emissions calculated are also proposing to correct an erroneous methodologies. from a single gas well venting event and citation in 40 CFR 98.234(j)(1)(vii) and We are proposing to amend the 40 CFR 98.233(j)(2), which referenced at standard conditions. Previously the provisions in 40 CFR 98.233(z) for citations that do not exist. In Equation rule stated that the Ea,n (now referred to determining combustion emissions from W–15, where volumetric GHG emissions as the Esn), represents emissions from both the onshore petroleum and natural are determined from onshore gas well venting, which resulted in gas production and natural gas production storage tanks, we are confusion as to whether this equation distribution industry segments. First, we proposing to revise the equation by was to apply for gas well venting in are proposing to include an engineering including a multiplier so the resulting previous years or to more than one gas equation to be used for determining CH well venting during the year of data emissions would be in the correct units. 4 emissions resulting from combustion of collection. Finally, we are proposing to In addition, we are proposing to amend a fuel. The rule did not include a revise 40 CFR 98.233(h)(1). The rule the definition for the EFi and count specific equation or methodology for states that the resulting emissions from parameters to clarify that these determining the methane emissions Equation W–13 are to be converted into parameters must be used for both gas- from combustion of fuel, however, the standard conditions. However, this liquid separators with throughput less provisions stated that both CH and CO should not be the case because Equation than 10 barrels per day and wells with 4 2 emissions were to be calculated from W–13 would already result in emissions throughput less than 10 barrels per day the combustion of fuel. In addition, we in standard condition. As a result, we sending liquids straight to a tank are proposing to amend the equation are proposing to include language in 40 without going through any separator. used to calculate CO emissions by CFR 98.233(h)(1) that would reference The definition to equation W–15 in the 2 including a combustion efficiency paragraphs in subpart W that will 2010 final rule could have been parameter. convert the emissions from Equation W– misinterpreted to apply only to 13 into GHG volumetric and mass instances where there was a separator at We are proposing to clarify that 40 emissions. the well. The proposed clarification CFR 98.233(z)(6), calculation of N2O In Equation W–14 used for makes the definitions to Equation W–15 emissions from stationary combustion, determining blowdown vent stacks consistent with the introduction to 40 applies only to units combusting field emissions, we are proposing to clarify CFR 98.233(j)(5). gas or process vent gas. Units combusting other fuels listed in Table that the parameter Vv is the actual In Equation W–16, we are proposing physical volume of the blowdown to amend the definition for the C–1 would estimate N2O (and CH4) equipment and not the gas volume. It parameter En by first correcting the emissions using the appropriate Tier 1 was always EPA’s intent that the citation that erroneously included 40 equations in subpart C. We have physical volume between isolation CFR 98.233(j)(3), which should not have reorganized section 98.233(z)(6) to valves be considered against the 50 been included because it references a incorporate this proposed amendment. standard cubic feet threshold for methodology that is specific for wells We are proposing to amend Equation blowdown vent stacks.3 EPA is also that flow directly to storage tanks W–40 to account for an incorrect proposing to clarify the reporting bypassing a wellhead separator. In exponent on the conversion factor from requirements for blowdown vent stacks addition, we are proposing to amend the kilograms to metric tons. Without by stating that emissions are calculated definition for En by including a making this change to the rule, the per unique volume type and not conversion factor that would result in emissions would have resulted in an the emissions being determined on a incorrect calculation of emissions. 3 Please see Response to Comment number EPA– yearly basis as opposed to an hourly We are also proposing to revise HQ–OAR–2009–0923–1018–27 in Mandatory basis. In addition, we are proposing to equation W–41 to insert missing Greenhouse Gas Reporting Rule Subpart W— delete the parameter Et in the equation variables a and b from the equation. Petroleum and Natural Gas: EPA’s Response to Public Comments, Volume 8. This document can be as it is being accounted for in the Without including the missing found at http://www.epa.gov/climatechange/ revised equation and is no longer variables, equation 41 would lack clarity emissions/downloads10/Subpart-W_RTC_part2.pdf. necessary. and be unusable.

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47400 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

Emission Factor Tables. We are In the proposal preamble, we conduct pressure measurements is not proposing to revise the emission factors estimated that this threshold covers readily available in the United States. for high bleed, low bleed, and only about 128 of the estimated 612 Sampling for moisture content. We intermittent bleed pneumatic devices to active underground mines in the United received numerous questions regarding correct for an error where the original States (74 FR 16553). Although it was the placement of timing of sampling for emission factors were on a CH4 basis not evident in reviewing the public moisture content. We are proposing to and should have been adjusted to comments received on the proposed add a paragraph (d) to 40 CFR 98.324 to account for the total hydrocarbon basis subpart FF, since finalization we have specify that when flow and as noted in equation. These proposed learned that the threshold was based on concentration are measured on different revisions would apply to Table W–3 and an incorrect understanding that MSHA bases, moisture content is measured at Table W–4. only samples quarterly at mines the location of the flow meter at least Other Technical Corrections. EPA is liberating 100,000 acf of CH4 or more weekly if using CEMS, and at the proposing to clarify in 40 CFR per day. location and time of the grab sample, if 98.236(c)(6)(ii)(B) that only the number If the current regulatory threshold is using grab samples. of workovers with hydraulic fracturing retained, all mines would be required to Additionally, we received numerous that vent gas to the atmosphere or flare report. This would add nearly 500 inquiries about how reporters are to gas needs to be reported. The current mines to the number previously measure for moisture content, and rule language could suggest you must expected to report, but these 500 mines asking whether measurements were report on the total number of workovers would represent only another 14 really necessary because no moisture per year, including those that don’t percent of the total GHG emissions from content measurement requirements are involve hydraulic fracture and those underground coal mines. EPA is in 40 CFR 98.324. To clarify how and that do not vent gas to the atmosphere. reviewing ways to address this and when reporters are to measure for It came to EPA’s attention that the ensure that the threshold in the rule moisture content, we are proposing to density parameter in Equation W–36 reflects EPA’s longstanding intent to amend 40 CFR 98.323 and 98.324 to was calculated incorrectly. EPA capture the gassiest mines that are include reference to calibration and proposes correcting these parameters to responsible for the majority of emissions documentation of procedures for 3 from underground coal mines in the moisture content monitors. These 0.0520 kg/ft for CO2 and N2O, and 0.0190 kilograms per square foot (kg/ft3) United States. proposed amendments clarify that the We are proposing to amend the moisture content is to be based on for CH4 at 68° F and 14.7 pounds per square inch absolute (psia). language so that mines liberating measurement values and not assumed 36,500,000 acf of CH4 or more per year moisture content values. In related C. Subpart FF—Underground Coal from their ventilation systems are amendments, we are proposing to Mines subject to the rule. This capacity amend 40 CFR 98.326(o) to clarify the Proposed changes to Subpart A. We threshold (equivalent to an average of reporting requirements for temperature, are proposing to amend Table A–3 to 100,000 acf of CH4 or more per day) may pressure, and moisture content subpart A of part 98. According to Table be more easily identifiable for the coal measurements. Together, the proposed A–3 to subpart A of part 98, all industry, is consistent with our original amendments to Equations FF–1 and FF– underground coal mines that are subject intent in terms of coverage, and removes 3 and 40 CFR 98.324 would clarify that to quarterly or more frequent sampling reporting requirement for the moisture content need only be by MSHA of ventilation systems approximately 500 mines. determined when the concentration and We considered but are not proposing, (subpart FF) must report, regardless of flow measurements are made on a threshold of 15,000 metric tons CO2e different basis (one wet and one dry) size. per year. This threshold would also be and that, if needed, the moisture content This threshold was based on EPA’s consistent with our original intent in must be measured. understanding that quarterly sampling terms of coverage and it would remove MSHA data. We received numerous by MSHA was only done at the largest, the reporting requirement for the comments on the use of MSHA data to gassiest mines, defined as those emitting approximately 500 mines. However, it calculate emissions. MSHA samples more than 100,000 actual cubic feet (acf) would be less familiar to industry than volume and concentration of methane, CH per day. For example, the proposal 4 the roughly equivalent threshold of but does not collect data on preamble states, 36,500,000 acf of CH4 or more per year. temperature, pressure, and moisture ‘‘We propose that all active underground Equations FF–1 and FF–3. We are content, which are required inputs for coal mines for which CH4 from the proposing the following technical the equations in this subpart. To allow ventilation system is sampled quarterly by amendments to Equations FF–1 and FF– facilities to use MSHA data, we propose MSHA (or on a more frequent basis), are 3 in 40 CFR 98.323. to amend 40 CFR 98.324(b)(2) to clarify required to report under this rule. MSHA We propose to amend 40 CFR that temperature and moisture content conducts quarterly testing of CH4 concentration and flow at mines emitting 98.324(a) and 98.324(b) to specify that must be sampled at the same time and more than 100,000 cf CH4 per day. We variables ‘‘V,’’ ‘‘MCF,’’ ‘‘C,’’ ‘‘T,’’ and location as the MSHA samples, and that selected this threshold because subjecting ‘‘P’’ are not ‘‘daily’’ rates. We are also for pressure, facilities must use either a underground mine operators to a new proposing to edit the units of ‘‘V’’ to cfm measured value or the average annual emissions-based threshold is unnecessarily from scfm and to revise the units for barometric pressure from the nearest burdensome, as many of these mines are ‘‘C’’ to read ‘‘%’’ to allow for the use of NOAA weather service station. already subject to MSHA regulations. The ‘‘C’’ on a dry basis. Monitoring equipment. We propose to MSHA threshold for reporting of 100,000 cf Sampling for pressure. We propose to amend 40 CFR 98.324(g) to include the CH4 per day covers approximately 94 percent amend FF–1 to allow facilities to use the use of infrared and flame ionization of the CH4 emitted from underground coal mine ventilation systems and about 86 annual average barometric pressure analyzers with the provision that they percent of total emissions from underground from the nearest NOAA weather service are calibrated annually using mining (including stationary fuel combustion station as a default to measuring measurements made by gas emissions at mine sites, as shown in Table ventilation system pressure. According chromatography methods. The infrared FF–1 of this preamble).’’ to MSHA, approved equipment to and flame ionization analyzers are

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47401

frequently used by the coal mining lagoon from which some biogas is production facilities report the total industry and they are often more recovered; and to clarify that the mass in metric tons of each reactant fed familiar with their calibration and continuous gas flow measurements must into the F–GHG or nitrous oxide operation. be used to determine cumulative gas production process, by process; and We propose to amend 40 CFR production each week. We are also section 98.416(a)(9) requires that 98.324(f) for consistency with the types proposing to amend 40 CFR 98.353(c)(1) fluorinated GHG and nitrous oxide of monitoring equipment required. We to replace the term ‘‘content’’ with the production facilities report the total propose to replace references to ‘‘fuel term ‘‘quantity’’ to clarify that fully mass in metric tons of the reactants, by- flow meters’’ with ‘‘flow meters,’’ integrated systems report CH4 quantity products, and other wastes permanently because the gas that is measured may or which accounts for both CH4 removed from the F–GHG or nitrous may not be used as a fuel. We also concentration and biogas flow. oxide production process, by process. propose to delete references to ‘‘heating We are proposing to amend 40 CFR Although these data elements do not, in value monitors,’’ and ‘‘sour gas flow 98.354(f) by dividing it into themselves, represent additions to or meters’’ because these monitors and subparagraphs and by deleting an subtractions from the U.S. supply of meters are not required. incorrect cross reference, to clarify the industrial GHGs, we required reporting monitoring requirements for anaerobic D. Subpart II—Industrial Wastewater of these data elements in the October 30, sludge digester, anaerobic reactor, or Treatment 2009, Mandatory GHG Reporting Rule to anaerobic lagoon from which some facilitate verification of production We are proposing clarifying biogas is recovered. levels through a material balance. (For amendments and technical corrections We are proposing to amend 40 CFR more discussion of that decision, see to subpart II to address questions EPA 98.356(a) by replacing the term page 26 of the Mandatory Greenhouse has received about the rule’s ’’explain’’ with ‘‘indicate’’ to provide Gas Reporting Rule: EPA’s Response to requirements, as well as to clarify guidance to reporters about the Public Comments, Volume No. 40, terminology. information they should include in the Subpart OO—Suppliers of Industrial We are proposing to amend 40 CFR description or diagram of their Greenhouse Gases.) 98.352(d) to replace the term ‘‘landfill wastewater treatment system. We are gas’’ with ‘‘biogas’’ to correct a also proposing to replace the term ‘‘all We are now proposing to require typographical error. anaerobic lagoons’’ with ‘‘each recordkeeping, rather than reporting, of We are proposing to amend the anaerobic lagoon’’ to clarify that these data elements. After additional consideration, we have concluded that definitions of the terms for ‘‘Tm’’ and reporters should provide the average these data elements, by themselves, ‘‘Pm’’ in Equation II–4 to refer to depth of each lagoon, not the average of ‘‘average temperature’’ and ‘‘average all lagoons. have somewhat limited usefulness for pressure’’ to clarify how reporters We are proposing to amend 40 CFR verifying production levels because the should use the multiple temperature 98.356(b)(3) and (4) to clarify that the relationship between the masses of the and pressure measurements that they values for ‘‘Bo’’ and ‘‘MCF,’’ that are reactants fed into the process, the mass may make during a measurement used as inputs to Equation II–1 or II–2, of the nitrous oxide or fluorinated GHG period. We are also proposing to amend are to be taken from Table II–1. We are product, and the mass of the reactants, these definitions to clarify how the also proposing to amend 40 CFR by-products, and other wastes calculation should be adjusted if the 98.356(d)(2) by replacing the text permanently removed from the process flow rate meter automatically corrects ‘‘Cumulative volumetric biogas flow for can vary. For example, if catalysts are for temperature and pressure. each week’’ with ‘‘Total weekly added to the process and subsequently We are proposing to amend 40 CFR volumetric biogas flow for each week removed from it, the sum of the masses 98.353(c)(2)(ii), 40 CFR (up to 52 weeks/year)’’ to clarify that of the product and the materials 98.353(c)(2)(iii)(A) and (B), and 40 CFR reporters should provide the total gas removed from the process may exceed 98.354(c) and (d) to replace ‘‘once each recovered for the week, for up to 52 the sum of the masses of the reactants calendar week, with at least three days weeks per year. fed into the process. On the other hand, between measurements’’ with ‘‘at least We are proposing to amend subpart II if by-products or other materials are once each calendar week; if only one (Industrial Wastewater Treatment) (40 emitted from the process, e.g., through measurement is made each calendar CFR 98.350 to 40 CFR 98.358) in fugitive emissions, the sum of the week, there must be at least three days multiple places, replacing the term masses of the reactants may exceed the between measurements,’’ to clarify what ‘‘anaerobic digester’’ with ‘‘anaerobic sum of the masses of the product and is meant by weekly sampling. sludge digester’’ to clarify the test refers the materials removed from the process. We are proposing to amend Equation to the anaerobic process defined in 40 Finally, the accuracies and precisions of II–6 of 40 CFR 98.353 to correct an error CFR 98.350(b)(2); and to replace the the various instruments used to measure in the placement of brackets and term ‘‘gas’’ with ‘‘biogas’’ to clarify the the masses of the reactants fed into the parentheses. This amendment will gas referred to is the biogas defined in process, the mass of the nitrous oxide or eliminate the possibility that the 40 CFR 98.358. fluorinated GHG produced, and the equation will return incorrect quantities masses of the materials permanently of methane emissions. We are also E. Subpart OO—Suppliers of Industrial removed from the process may all vary, proposing to amend the units in the Greenhouse Gases further complicating comparisons definition of CH4En under Equation II– We are proposing to amend subpart among these quantities. Retention of 6 to clarify that the annual quantity OO to require that the data currently these data as records would permit on- should be reported in ‘‘metric tons’’ not reported under 40 CFR 98.416(a)(8) and site verification of production as part of ‘‘metric tons/yr.’’ (9) be kept as a record rather than the audit process, which would have the We are proposing to amend 40 CFR reported. We are also proposing to make benefit of permitting consideration of 98.353(c) to reorder the text to clarify a corresponding revision to 40 CFR other production process information that continuous gas flow monitoring is 98.416(a)(10). (e.g., the use of catalysts) in making required for each anaerobic sludge Section 98.416(a)(8) requires that comparisons among the inputs and digester, anaerobic reactor, or anaerobic fluorinated GHG and nitrous oxide outputs of the production process. We

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47402 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

estimate that approximately 20 facilities separator. The current text and equipment leaks and vented emissions produce fluorinated GHGs or nitrous equations would not account for CO2 in of CO2.’’ oxide in the U.S., making on-site water that is withdrawn from the • At the introductory text of 40 CFR verification a practicable option for subsurface and reinjected or disposed 98.446(f)(3), revise the term ‘‘CO2 subpart OO. without going through a separator. equipment leakage and vented CO2 We are also proposing to revise To address this issue, we propose emissions’’ to read ‘‘CO2 emissions from § 98.416(a)(10) by removing the adding a new sentence to 40 CFR equipment leaks and vented emissions introductory qualifier. In its entirety, the 98.443(d) to specifically account for any of CO2.’’ • provision currently reads, ‘‘For CO2 in fluids that are produced and not At 40 CFR 98.446(f)(3)(i) and transformation processes that do not processed through a separator. We also 98.446(f)(3)(ii), revise the term ‘‘mass of produce an F–GHG or nitrous oxide, propose adding a new sentence to 40 CO2 emitted (in metric tons) annually as mass in metric tons of any fluorinated CFR 98.443(d)(3) to clarify that the equipment leakage or vented emissions’’ GHG or nitrous oxide fed into the reporter must include additional to read ‘‘mass of CO2 emitted (in metric transformation process, by process.’’ information regarding the measurement tons) annually from equipment leaks The phrase ‘‘for transformation methods used to determine the and vented emissions of CO2.’’ • processes that do not produce an F– concentration of CO2 in fluids, and a At 40 CFR 98.447(a)(5) and GHG or nitrous oxide’’ was intended to discussion of how the amount of 98.447(a)(6), revise the term ‘‘CO2 prevent double-reporting between this produced CO2 would be determined, in emitted as equipment leakage or vented provision and § 98.416(a)(8), which the monitoring, reporting and emissions’’ to read ‘‘CO2 emitted from requires reporting of the mass of each verification (MRV) plan. In the MRV equipment leaks and vented emissions reactant fed into the fluorinated GHG or plan, the reporter would describe the of CO2.’’ nitrous oxide production process. (In disposition of the produced water • At 40 CFR 98.448(a)(5), revise the the case where one fluorinated GHG was (reinjected into another zone, reused, or term ‘‘considerations for calculating transformed into another, the first otherwise disposed) and provide equipment leakage and vented fluorinated GHG would be one of the justification for determining whether emissions’’ to read ‘‘considerations for reactants fed into the process and would the CO2 entrained in the water is calculating CO2 emissions from therefore be reported under (a)(8).) With sequestered. The MRV plan would also equipment leaks and vented emissions the proposed removal of § 98.416 (a)(8), describe considerations the reporter of CO2.’’ the introductory qualifier in intends to use to calculate CO2 from Other Technical Corrections. We are § 98.416(a)(10) must be removed to produced water for the mass balance proposing to amend a cross reference in ensure that the quantities of fluorinated equation. the introductory language of 40 CFR GHGs fed into all transformation CO2 Emissions from Equipment Leaks 98.446(a)(2) and 40 CFR 98.446(a)(3). processes, including transformation and Vented Emissions of CO2. We are The incorrect references refer the reader processes that produce other fluorinated proposing to revise the term ‘‘CO2 to 40 CFR 98.446(a)(5), but should refer GHGs, will be reported under subpart equipment leakage and vented CO2 the reader 40 CFR 98.446(a)(4). We are OO.4 emissions’’ throughout subpart RR with also proposing to amend a cross the term ‘‘CO emissions from reference at 40 CFR 98.446(f)(1)(vii). F. Subpart RR—Geologic Sequestration 2 equipment leaks and vented emissions The incorrect reference refers the reader of Carbon Dioxide of CO2.’’ This change is proposed to to 40 CFR 98.446(f)(1)(i), but should We are proposing clarifying ensure consistency with the terminology refer the reader to 40 CFR amendments and technical corrections that is used in 40 CFR part 98 subpart 98.446(f)(1)(ii). to subpart RR to correct known errors. W and to more accurately describe the We are proposing to revise the data Accounting for CO2 Entrained in equipment between flow meters and reporting element at 40 CFR 98.446(e) Produced Water. We are proposing to wellheads for which monitoring and the introductory text at 40 CFR clarify 40 CFR 98.443(d) to ensure that requirements are specified in subpart 98.446(f). As currently written, it is CO2 entrained in produced water that is RR. Specifically, we are proposing the ambiguous when reporters would report not processed through a gas-liquid following changes: total amount sequestered. We are separator is accounted for in the mass • At 40 CFR 98.442(e) and 98.442(f), proposing that the revised data balance equation. We intended that CO2 revise the term ‘‘Mass of CO2 equipment reporting element at 40 98.446(e) read as content in all produced liquids would leakage and vented CO2 emissions’’ to follows: ‘‘Report the date that you began 5 be determined, and assumed that all read ‘‘Mass of CO2 emissions from collecting data for calculating total produced liquids would be processed equipment leaks and vented emissions amount sequestered according to through a gas-liquid separator. The text of CO2.’’ § 98.448(a)(7) of this subpart’’. We are in 40 CFR 98.443(d), and the associated • In Equations RR–11 and RR–12 at proposing that the revised introductory equations (Equations RR–7, RR–8, and 40 CFR 98.443, revise the term ‘‘Total text at 40 CFR 98.446(f) read as follows: RR–9) are based on measurements made annual CO2 mass emitted (metric tons) ‘‘Report the following. If the date at a separator to calculate the amount of as equipment leakage or vented specified in paragraph (e) of this section CO2 in produced fluids. However, EPA emissions’’ to read ‘‘Total annual CO2 is during the reporting year for this has recognized that in some situations, mass emitted (metric tons) from annual report, report the following including water removed for pressure equipment leaks and vented emissions starting on the date specified in relief or reservoir maintenance, fluids of CO2.’’ paragraph (e) of this section.’’ may be removed from the subsurface • At 40 CFR 98.444(d), revise the We are proposing to revise the without being processed through a heading ‘‘CO2 equipment leakage and heading of 40 CFR 98.448(e) to correct vented CO2 emissions’’ to read ‘‘CO2 a typographical error. The text of 40 4 Note that if a fluorinated GHG is produced and emissions from equipment leaks and CFR 98.448(e) refers to requirements for transformed at the same facility, neither its vented emissions of CO2.’’ revised MRV plans, but the heading is production nor its transformation are required to be • reported under subpart OO. At 40 CFR 98.445(e), revise the term incorrectly labeled as ‘‘Final MRV 5 See Section II.B.4 of preamble to the final ‘‘CO2 equipment leakage or vented CO2 plan.’’ We propose to revise the heading Subpart RR rule (75 FR 75065, December 1, 2010). emissions to read ‘‘CO2 emissions from to read ‘‘Revised MRV plan.’’

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47403

We are proposing to revise the methane generation. The July 12, 2010, In addition, we are proposing to add definition of ‘‘CO2 received’’ at 40 CFR final rule had no provisions by which a new paragraph (g) in 40 CFR 98.464 98.449 to correct a typographical error waste streams that were not disposed of and a new Equation TT–8 to provide by adding the word ‘‘means’’ after the in the landfill during the first reporting guidance on how to correct the CO2 received defined term. The year could be assessed. These waste measured CH4 concentration for zero definition would read ‘‘CO2 received streams would be required to use the percent oxygen in order to arrive at an means the CO2 stream that you receive default DOC values, which have a appropriate value for F in the case of air to be injected for the first time into a higher degree of uncertainty. Facilities infiltration into the landfill gas at the well on your facility that is covered by may still elect to use the default DOC monitoring location. this subpart. CO2 received includes, but values, but proposed amendments Provisions for Actively Aerated is not limited to, a CO2 stream from a provide methodologies for developing Landfills and Other Amendments To production process unit inside your site-specific DOC values for these Conform with Amendments to subpart facility and a CO2 stream that was ‘‘historically-disposed’’ waste streams. HH. Similar to amendments that were injected into a well on another facility, We are also proposing to amend 40 made to subpart HH (Municipal Solid removed from a discontinued enhanced CFR 98.467 to clarify that records must Waste Landfills), we propose to amend oil or natural gas or other production be retained for the volatile solids the definition of the methane correction well, and transferred to your facility.’’ concentration determinations, including factor (MCF) to allow landfills with G. Subpart TT—Industrial Waste determinations using process active aeration units to use an MCF Landfills knowledge. value other than the default value of 1. Equations for Determining Volatile For landfills with active aeration units, Numerous clarifying amendments and Solids and DOC Values. We are a site-specific MCF can be developed technical corrections are proposed to proposing to delete Equation TT–7 and based on the amount of aeration and the subpart TT to address questions EPA amend Equation TT–8 to 40 CFR 98.464 fraction of the landfill that is actively has received about the rule’s to correct inadvertent errors in these aerated. Owners and operators of requirements and to correct known landfills with active aeration can use the errors. Technical amendments to the equations. These equations as presented default MCF factor of 1 or they may rule are also proposed to address some in the July 12, 2010, final rule were elect to develop a site-specific MCF additional questions. These more incorrect because the volatile solids value. The owner or operator of the substantive technical amendments are concentration was expected to have industrial waste landfill must document discussed first, and then the clarifying units of mass of volatile solids per mass the basis for the alternative MCF value; amendments are presented. of (wet) waste. However, per Standard Determining Waste-specific DOC Method 2540G ‘‘Total, Fixed, and in no cases can an MCF value less than values for Closed Landfills. We are Volatile Solids in Solid and Semisolid 0.5 be used. These amendments are proposing to amend 40 CFR 98.464 by Samples,’’ the volatile solids being proposed because the default MCF adding a new paragraph (c) to provide concentration is determined on a dry value of 1 is expected to overestimate methodologies for closed landfills or basis (milligram (mg) volatile solids per the modeled methane generation at a active landfills that have stopped mg dried solids). As such, Standard facility that actively aerates the waste in accepting certain types of wastes to Method 2540G provides the volatile the landfill. Additionally, we propose to determine the volatile solids solids concentration in the appropriate add 40 CFR 98.466(d)(4) to require concentration (for exemption purposes units needed for 40 CFR 98.464(b)(3), reporting of the MCF value and the basis under 40 CFR 98.460(c)(2)(xii)) or to and Equation TT–7 in the final rule can for using an MCF value other than the determine the waste-specific DOC be deleted. Additionally, we propose to default value of 1. values for historically disposed waste amend 40 CFR 98.464(b)(4) to correct We are proposing to define the term streams. The proposed provisions the errors in Equation TT–8 (which is ‘‘construction and demolition waste would allow landfills to identify waste proposed to be renumbered as Equation landfills’’ as defined in subpart HH and streams similar to those that had been TT–7) and to clarify the units of the use that term rather than ‘‘dedicated historically placed in the landfill, variables used in the equation. construction and demolition waste measure the volatile solids We are revising the variable ‘‘F’’ in landfills.’’ concentration of these ‘‘similar’’ waste Equation TT–1 and new Equation TT– We are also proposing to revise the streams, and use those measured values 7 (which was Equation TT–8) to correct footnote to Table TT–1 to subpart TT of to assess the applicability of the the measured CH4 concentration for zero part 98 to clarify that leachate exemption under 40 CFR percent oxygen. We are proposing to recirculation rates can be determined 98.460(c)(2)(xii) or to determine the change ‘‘Fx’’ to be ‘‘F’’ in Equation TT– from company records or engineering average DOC value for the historical 1 because this parameter should be a estimates and that the owner or operator waste streams. The proposed provisions fixed value for a given reporting year of a landfill that uses leachate also allow use of process knowledge to and revising the definition of ‘‘F’’ to be recirculation may elect to use the k determine the volatile solids ‘‘Fraction by volume of CH4 in landfill value for the wet climate rather than concentration and, if needed, to gas (fraction, dry basis, corrected to 0% calculating the leachate recirculation calculate the corresponding DOC value oxygen). If you have a gas collection rate. These amendments provide if a similar waste stream cannot be system, use the annual average CH4 improved consistency between the identified. concentration from measurement data reporting requirements for municipal This provision is being proposed to for the current reporting year; otherwise, and industrial waste landfills. allow industrial waste landfill owners use the default value of 0.5’’ to clarify Other Technical Corrections. We are and operators a means by which to that, if a measured value of CH4 proposing other technical corrections develop volatile solids concentration concentration is used it should be based for subpart TT to correct typographical and site-specific DOC values for on measurements made during the errors, to correct equations, and to historically disposed waste streams. The reporting year and the volume fraction provide minor clarifications. These site-specific DOC values will in turn should be adjusted to 0 percent oxygen proposed corrections are summarized improve the accuracy of the modeled for use in Equation TT–1. below:

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47404 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

• In 40 CFR 98.460(c)(2)(i), replacing information:’’ to better describe the similar to 40 CFR 60.751 (Standards of ‘‘Coal combustion residue (e.g., fly ash)’’ reporting elements included in this Performance for Municipal Solid Waste with ‘‘Coal combustion or incinerator paragraph. Landfills). ash (e.g., fly ash)’’ to better describe our • Moving paragraphs 40 CFR • In Table TT–1, amending the intent to classify all combustion ash 98.466(d)(3) and (4) to 98.466(b)(3) and default value of construction and products as inert. (4) because these reporting elements are demolition waste from 0.04 to 0.08 to • In 40 CFR 98.463(a)(1): based on reporting year practices and do correct an inadvertent error. not need to be separately reported for • —Revising the definition of GCH4 to In Table TT–1, revising the delete the word ‘‘rate’’ because the each year or used in the summation for description of the waste type ‘‘Inert units of the modeled methane Equation TT–1. Also, to clarify that the Waste’’ to read ‘‘Inert Waste [i.e., wastes generation is metric tons. fraction of CH4 in the landfill gas, F, listed in 40 CFR 98.460(c)(2)]’’ to correct should be based on CH4 concentration —Revising the definition of DOCx from an incorrect cross-reference. ‘‘degradable organic carbon for year X corrected to 0% oxygen. • In 40 CFR 98.466(b)(2), adding III. Statutory and Executive Order * * *’’ to be ‘‘degradable organic Reviews carbon for waste disposed in year X ‘‘* * * for which Equation TT–1 of this * * *’’ for clarity. subpart is used to calculate modeled A. Executive Order 12866: Regulatory CH4 generation’’ to clarify that only • In 40 CFR 98.463(a)(2): Planning and Review and Executive descriptions of waste streams disposed Order 13563: Improving Regulation and —Revising ‘‘January 1, 1980’’ to be of in the landfill and used in Equation Regulatory Review ‘‘January 1, 1960’’ in both places to TT–1 must be reported (as opposed to correct an inadvertent error. all wastes managed on-site regardless of This action is not a ‘‘significant —Replacing the term ‘‘first emissions whether the waste in managed in the regulatory action’’ under the terms of monitoring year’’ with ‘‘first landfill). Executive Order 12866 (58 FR 51735, emissions reporting year’’ to improve • In 40 CFR 98.466(c)(3)(ii), replacing October 4, 1993) and is therefore not consistency with the terminology ‘‘The year, the waste disposal quantity subject to review under Executive used in other sections of subpart TT. and production quantity for each year Orders 12866 and 13563 (76 FR 3821, • In 40 CFR 98.463(a)(2)(ii)(C): Equation TT–2 applies’’ with ‘‘The year, January 21, 2011). —Deleting the phrase ‘‘fixed average the waste disposal quantity and B. Paperwork Reduction Act annual bulk waste disposal quantity production quantity for each year used This action does not impose any new for each year for which historic in Equation TT–2 of this subpart to information collection burden. These disposal quantity and’’ in the calculate the average waste disposal proposed amendments do not make any paragraph text and adding to the factor (WDF)’’ to clarify that these data substantive changes to the reporting definition of W ‘‘This annual bulk are to be reported for the years used to X requirements in any of the subparts for waste disposal quantity applies for all calculate WDF, not the years for which which amendments are being proposed. years from ‘YrOpen’ to ‘YrData’ WDF was subsequently used to In many cases, the proposed inclusive’’ to clarify that the value calculate waste quantities. • amendments to the reporting calculated by Equation TT–4 applies In 40 CFR 98.466(d), adding the requirements could potentially reduce for all years from ‘‘YrOpen’’ to phase ‘‘and each year thereafter up’’ so the reporting burden by making the ‘‘YrData’’ inclusive. that the paragraph reads ‘‘For each year of landfilling starting with the ‘‘Start reporting requirements conform more —Revising the definition of LFC and Year’’ (S) and each year thereafter up to closely to current industry practices. YrData to allow closed landfills that the current reporting year, report the However, the OMB has previously have some measurement data to following information:’’ to clarify that approved the information collection appropriately calculate W only for X the reporting elements must be reported requirements for subparts A and OO years for which the closed landfill separately for each year. contained in the regulations does not have waste disposal data • Adding a new paragraph 40 CFR promulgated on October 30, 2009, available from company records or 98.466(d)(1) to read ‘‘The calendar year subpart W promulgated on November from Equation TT–3. for which following data elements 30, 2010, subpart DD promulgated on • In 40 CFR 98.464(b), replacing ‘‘For apply’’ to ensure the calendar year is December 1, 2010, subparts FF and TT each waste stream for which you choose also reported. Renumber existing promulgated on July 12, 2010, and to determine * * *’’ with ‘‘For each paragraphs 98.466(d)(1) and (2) to (d)(2) subpart RR promulgated on December 1, waste stream received during the and (3) and add the phrase ‘‘for the 2010 under 40 CFR part 98 under the reporting year for which you choose to specified year’’ to ensure the data provisions of the Paperwork Reduction determine * * *’’ for clarity given the elements are reported with specified Act, 44 U.S.C. 3501 et seq., and has addition of 40 CFR 98.464(c). year in the new paragraph 98.466(d)(1). assigned OMB control numbers 2060– • In 40 CFR 98.464(b)(1), adding the • In 40 CFR 98.466(f), deleting the 0629; 2060–0650; and 2060–0647; and parenthetical ‘‘(as received at the word ‘‘rate’’ to conform with revised 2060–0649 respectively. The OMB landfill)’’ to clarify that the definition of term and replace it with control numbers for EPA’s regulations representative sample of each waste ‘‘(GCH4)’’ to clarify this is the equation in 40 CFR are listed in 40 CFR part 9. stream was to be determined ‘‘as term to be reported. Further information on EPA’s received at that landfill’’ (as opposed to • In 40 CFR 98.466(f), adding ‘‘(MG)’’ assessment on the impact on burden can sampling waste in ‘‘closed’’ sections of after ‘‘methane generation’’ to improve be found in the Technical Corrections the landfill) and for clarity given the clarity and replace ‘‘Equation TT–5’’ and Amendments Cost Memo in docket addition of 40 CFR 98.464(c). with ‘‘Equation TT–6’’ to correct an number EPA–HQ–OAR–2011–0147. • In 40 CFR 98.466(b), replacing improper equation cross-reference. ‘‘Report the following waste • In 40 CFR 98.468, adding the C. Regulatory Flexibility Act (RFA) characterization information:’’ with definition of ‘‘design capacity’’ to clarify The RFA generally requires an agency ‘‘Report the following waste what is meant by this term as it is used to prepare a regulatory flexibility characterization and modeling in 40 CFR 98.460. The definition is analysis of any rule subject to notice

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47405

and comment rulemaking requirements assess the effects of their regulatory and OO promulgated on October 30, under the Administrative Procedure Act actions on State, local, and Tribal 2009; subparts FF, II, and TT or any other statute unless the agency governments and the private sector. promulgated on July 12, 2010; subpart certifies that the rule will not have a Federal agencies must also develop a W promulgated on November 30, 2010, significant economic impact on a plan to provide notice to small and subparts DD and RR, both substantial number of small entities. governments that might be significantly promulgated on December 1, 2010. A Small entities include small businesses, or uniquely affected by any regulatory summary of EPA’s consultations with small organizations, and small requirements. The plan must enable State and local governments is provided governmental jurisdictions. officials of affected small governments in Section VIII.E of the preamble to the For purposes of assessing the impacts to have meaningful and timely input in 2009 final rule. of this proposed rule on small entities, the development of EPA regulatory In the spirit of Executive Order 13132, small entity is defined as: (1) A small proposals with significant Federal and consistent with EPA policy to business as defined by the Small intergovernmental mandates and must promote communications between EPA Business Administration’s regulations at inform, educate, and advise small and State and local governments, EPA 13 CFR 121.201; (2) a small governments on compliance with the specifically solicits comment on this governmental jurisdiction that is a regulatory requirements. proposed action from State and local government of a city, county, town, The proposed rule amendments do officials. school district or special district with a not contain a Federal mandate that may population of less than 50,000; and (3) result in expenditures of $100 million or F. Executive Order 13175: Consultation a small organization that is any not-for- more for State, local, and tribal and Coordination With Indian Tribal profit enterprise which is independently governments, in the aggregate, or the Governments owned and operated and is not private sector in any one year. Thus, the This action does not have tribal dominant in its field. proposed rule amendments are not implications, as specified in Executive After considering the economic subject to the requirements of section Order 13175 (65 FR 67249, November 9, impacts of these proposed rule 202 and 205 of the UMRA. This rule is 2000). The proposed rule amendments amendments on small entities, I certify also not subject to the requirements of would not result in any changes to the that this action will not have a section 203 of UMRA because it current requirements of 40 CFR part 98. significant economic impact on a contains no regulatory requirements that Thus, Executive Order 13175 does not substantial number of small entities. might significantly or uniquely affect apply to this action. The proposed rule amendments will not small governments. The proposed Although Executive Order 13175 does impose any new requirement on small amendments will not impose any new not apply to this action, EPA sought entities that are not currently required requirements that are not currently opportunities to provide information to by the regulation of subparts A and OO required for 40 CFR part 98, and the rule Tribal governments and representatives promulgated on October 30, 2009; amendments would not unfairly apply during the development of the rules for subparts FF, II, and TT promulgated on to small governments. Therefore, this subparts A and OO promulgated on July 12, 2010; subpart W promulgated action is not subject to the requirements October 30, 2009; subparts FF, II, and on November 30, 2010, or subparts DD of section 203 of the UMRA. TT promulgated on July 12, 2010; or RR, both promulgated on December 1, subpart W promulgated on November E. Executive Order 13132: Federalism 2010. 30, 2010, and subparts and DD and RR, EPA took several steps to reduce the This action does not have federalism both promulgated on December 1, 2010. impact of 40 CFR part 98 on small implications. It will not have substantial A summary of the EPA’s consultations entities when developing the final GHG direct effects on the States, on the with Tribal officials is provided in reporting rules in 2009 and 2010. For relationship between the national Sections VIII.D and VIII.F of the example, EPA determined appropriate government and the States, or on the preamble to the 2009 final rule and in thresholds that reduced the number of distribution of power and Section IV.F of the final rule for subpart small businesses reporting. In addition, responsibilities among the various W. EPA conducted several meetings with levels of government, as specified in industry associations to discuss Executive Order 13132. G. Executive Order 13045: Protection of regulatory options and the These amendments apply directly to Children From Environmental Health corresponding burden on industry, such facilities that supply certain products Risks and Safety Risks as recordkeeping and reporting. Finally, that would result in GHGs when EPA interprets Executive Order 13045 EPA continues to conduct significant released, combusted or oxidized and (62 FR 19885, April 23, 1997) as outreach on the GHG reporting program facilities that directly emit greenhouses applying only to those regulatory and maintains an ‘‘open door’’ policy gases. They do not apply to actions that concern health or safety for stakeholders to help inform EPA’s governmental entities unless the risks, such that the analysis required understanding of key issues for the government entity owns a facility that under section 5–501 of the Executive industries. directly emits GHGs above threshold Order has the potential to influence the We continue to be interested in the levels (such as a landfill), so relatively regulation. This action is not subject to potential impacts of the proposed rule few government facilities would be Executive Order 13045 because it does amendments on small entities and affected. This regulation also does not not establish an environmental standard welcome comments on issues related to limit the power of States or localities to intended to mitigate health or safety such impacts. collect GHG data and/or regulate GHG risks. emissions. Thus, Executive Order 13132 D. Unfunded Mandates Reform Act does not apply to this action. H. Executive Order 13211: Actions That (UMRA) Although section 6 of Executive Order Significantly Affect Energy Supply, Title II of the Unfunded Mandates 13132 does not apply to this action, EPA Distribution, or Use Reform Act of 1995 (UMRA), 2 U.S.C. did consult with State and local officials This action is not subject to Executive 1531–1538, requires Federal agencies, or representatives of State and local Order 13211 (66 FR 28355, May 22, unless otherwise prohibited by law, to governments in developing subparts A 2001), because it is not a significant

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47406 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

regulatory action under Executive Order of the Code of Federal Regulations is quantities separately to the 25,000 12866. proposed to be amended as follows: metric ton CO2 per year threshold. * * * * * I. National Technology Transfer and PART 98—[AMENDED] Advancement Act (h) An owner or operator of a facility Section 12(d) of the National 1. The authority citation for part 98 or supplier that does not meet the Technology Transfer and Advancement continues to read as follows: applicability requirements of paragraph (a) of this section is not subject to this Act of 1995 (NTTAA), Public Law No. Authority: 42 U.S.C. 7401–7671q. 104–113 (15 U.S.C. 272 note) directs rule. Such owner or operator would 2. Section 98.2 is amended by: EPA to use voluntary consensus become subject to the rule and reporting standards in its regulatory activities a. Revising paragraph (d). requirements, if a facility or supplier unless to do so would be inconsistent b. Revising paragraph (e). exceeds the applicability requirements with applicable law or otherwise c. Revising paragraph (f) introductory of paragraph (a) of this section at a later impractical. Voluntary consensus text. time pursuant to § 98.3(b)(3). Thus, the standards are technical standards (e.g., owner or operator should reevaluate the d. Revising paragraph (h). applicability to this part (including the materials specifications, test methods, e. Revising paragraph (i)(3). sampling procedures, and business revising of any relevant emissions calculations or other calculations) practices) that are developed or adopted Subpart A—[Amended] by voluntary consensus standards whenever there is any change that could bodies. NTTAA directs EPA to provide § 98.2 Who must report? cause a facility or supplier to meet the Congress, through OMB, explanations * * * * * applicability requirements of paragraph (a) of this section. Such changes include when the Agency decides not to use (d) To calculate GHG quantities for but are not limited to process available and applicable voluntary comparison to the 25,000 metric ton modifications, increases in operating consensus standards. CO per year threshold for importers 2 hours, increases in production, changes This proposed rulemaking does not and exporters of coal-to-liquid products in fuel or raw material use, addition of involve technical standards. Therefore, under paragraph (a)(4) of this section, equipment, and facility expansion. EPA is not considering the use of any calculate the mass in metric tons per voluntary consensus standards. year of CO2 that would result from the (i) * * * complete combustion or oxidation of the J. Executive Order 12898: Federal (3) If the operations of a facility or quantity of coal-to-liquid products that Actions To Address Environmental supplier are changed such that all are imported during the reporting year Justice in Minority Populations and applicable GHG-emitting processes and and, that are exported during the Low-Income Populations operations listed in paragraphs (a)(1) reporting year. Compare the imported through (a)(4) of this section cease to Executive Order 12898 (59 FR 7629, quantities and the exported quantities operate, then the owner or operator is February 16, 1994) establishes Federal separately to the 25,000 metric ton CO2 exempt from reporting in the years executive policy on environmental per year threshold. Calculate the following the year in which cessation of justice. Its main provision directs quantities using the methodology such operations occurs, provided that Federal agencies, to the greatest extent specified in subpart LL of this part. the owner or operator submits a practicable and permitted by law, to (e) To calculate GHG quantities for notification to the Administrator that make environmental justice part of their comparison to the 25,000 metric ton announces the cessation of reporting mission by identifying and addressing, CO2e per year threshold for importers and certifies to the closure of all GHG- as appropriate, disproportionately high and exporters of petroleum products emitting processes and operations no and adverse human health or under paragraph (a)(4) of this section, later than March 31 of the year environmental effects of their programs, calculate the mass in metric tons per following such changes. This paragraph policies, and activities on minority year of CO2 that would result from the (i)(3) does not apply to seasonal or other populations and low-income complete combustion or oxidation of the temporary cessation of operations. This populations in the United States. combined volume of petroleum paragraph (i)(3) does not apply to EPA has determined that this products and natural gas liquids that are facilities with municipal solid waste proposed rule will not have imported during the reporting year and landfills or industrial waste landfills, or disproportionately high and adverse that are exported during the reporting to underground coal mines. The owner human health or environmental effects year. Compare the imported quantities or operator must resume reporting for on minority or low-income populations and the exported quantities separately any future calendar year during which because it does not affect the level of to the 25,000 metric ton CO2 per year any of the GHG-emitting processes or protection provided to human health or threshold. Calculate the quantities using operations resume operation. the environment because it is a rule the methodology specified in subpart * * * * * addressing information collection and MM of this part. reporting procedures. 3. Section 98.3 is amended by: (f) To calculate GHG quantities for a. Revising paragraph (b) introductory List of Subjects in 40 CFR Part 98 comparison to the 25,000 metric ton text. Environmental protection, CO2e per year threshold under paragraph (a)(4) of this section for b. Revising paragraph (b)(1). Administrative practice and procedure, c. Adding paragraph (b)(4). Greenhouse gases, Suppliers, Reporting importers and exporters of industrial and recordkeeping requirements. greenhouse gases and for importers and d. Revising paragraph (c)(5)(ii). exporters of CO2, the owner or operator e. Revising paragraph (c)(7). Dated: July 19, 2011. shall calculate the mass in metric tons f. Revising paragraph (c)(10). Lisa P. Jackson, per year of CO2e imports and exports as Administrator. described in paragraphs (f)(1) through g. Revising paragraph (c)(11). For the reasons stated in the (f)(3) of this section. Compare the h. Revising the second sentence of preamble, part 98 of title 40, chapter I, imported quantities and the exported paragraph (g) introductory text.

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47407

§ 98.3 What are the general monitoring, (7) A brief description of each ‘‘best United States parent company, and reporting, recordkeeping and verification available monitoring method’’ used, the report 100 percent ownership by the requirements of this part? parameter measured using the method, joint venture or cooperative. * * * * * and the time period during which the (v) If the facility or supplier is entirely (b) Schedule. The annual GHG report ‘‘best available monitoring method’’ was owned by a foreign company, provide for reporting year 2010 must be used, if applicable. the legal name and physical address of submitted no later than September 30, * * * * * the foreign company’s highest-level 2011. The annual report for reporting (10) NAICS code(s) that apply to the company based in the United States as years 2011 and beyond must be facility or supplier. the United States parent company, and submitted no later than March 31 of (i) Primary NAICS code. Report the report 100 percent ownership. each calendar year for GHG emissions in NAICS code that most accurately (vi) If the facility or supplier is the previous calendar year, except as describes the facility or supplier’s partially owned by a foreign company provided in paragraph (b)(1) of this primary product/activity/service. The and partially owned by one or more U.S. section. primary product/activity/service is the companies, provide the legal name and (1) For reporting year 2011, GHG principal source of revenue for the physical address of the foreign information required by the subparts facility or supplier. A facility or company’s highest-level company based listed in paragraphs (b)(1)(i) through supplier that has two distinct products/ in the United States, along with the (b)(1)(xii) of this section must be activities/services providing comparable legal names and physical addresses of submitted no later than September 28, revenue may report a second primary the other U.S. parent companies, and 2012. This reporting date applies only to NAICS code. report the percent ownership of each of the data reporting requirements (ii) Additional NAICS code(s). Report these companies. identified in the listed subparts and all additional NAICS codes that describe (vii) If the facility or supplier is a does not affect data reporting all product(s)/activity(s)/service(s) at the federally owned facility, report ‘‘U.S. requirements of other subparts that facility or supplier that are not related Government’’ and do not report physical apply to a facility or supplier. to the principal source of revenue. (i) Electronics Manufacturing (subpart address or percent ownership. (11) Legal name(s) and physical I). * * * * * address(es) of the highest-level United (ii) Fluorinated Gas Production (g) Recordkeeping. * * * Retain all States parent company(s) of the owners (subpart L). required records for at least 3 years from (iii) Magnesium Production (subpart (or operators) of the facility or supplier the date of submission of the annual T). and the percentage of ownership GHG report for the reporting year in (iv) Petroleum and Natural Gas interest for each listed parent company which the record was generated. * * * as of December 31 of the year for which Systems (subpart W). * * * * * (v) Use of Electric Transmission and data are being reported according to the 4. Section 98.4 is amended by revising Distribution Equipment (subpart DD). following instructions: paragraph (m)(4) to read as follows: (vi) Underground Coal Mines (subpart (i) If the facility or supplier is entirely FF). owned by a single United States § 98.4 Authorization and responsibilities of (vii) Industrial Wastewater Treatment company that is not owned by another the designated representative. company, provide that company’s legal (subpart II). * * * * * (viii) Imports and Exports of name and physical address as the (m) * * * Equipment Pre-charged with United States parent company and Fluorinated GHGs or Containing report 100 percent ownership. (4) Any electronic submission covered Fluorinated GHGs in Closed-cell Foams (ii) If the facility or supplier is by the certification in paragraph (subpart QQ). entirely owned by a single United States (m)(2)(v)(A) of this section and made in (ix) Geologic Sequestration of Carbon company that is, itself, owned by accordance with a notice of delegation Dioxide (subpart RR). another company (e.g., it is a division or effective under paragraph (m)(3) of this (x) Manufacture of Electric subsidiary of a higher-level company), section shall be deemed to be an Transmission and Distribution (subpart provide the legal name and physical electronic submission certified, signed, SS). address of the highest-level company in and submitted by the designated (xi) Industrial Waste Landfills the ownership hierarchy as the United representative or alternate designated (subpart TT). States parent company and report 100 representative submitting such notice of (xii) Injection of Carbon Dioxide percent ownership. delegation. (subpart UU). (iii) If the facility or supplier is owned 5. Section 98.6 is amended by revising * * * * * by more than one United States the definitions of ‘‘Blowdown vent (4) Unless otherwise stated, if the company (e.g., company A owns 40 stack’’, ‘‘Supplier’’, and ‘‘United States final day of any time period falls on a percent, company B owns 35 percent, parent company(s)’’ to read as follows: weekend or a Federal holiday, the time and company C owns 25 percent), § 98.6 Definitions. period shall be extended to the next provide the legal names and physical business day. addresses of all the highest-level * * * * * (c) * * * companies with an ownership interest Blowdown vent stack emissions mean (5) * * * as the United States parent companies, natural gas and/or CO2 released due to (ii) Quantity of each GHG from each and report the percent ownership of maintenance and/or blowdown applicable supply category in Table A– each company. operations including compressor 5 of this subpart, expressed in metric (iv) If the facility or supplier is owned blowdown and emergency shut-down tons of each GHG. For fluorinated GHG, by a joint venture or a cooperative, the (ESD) system testing. Emissions from report quantities of all fluorinated GHG, joint venture or cooperative is its own emergency events are not included. including those not listed in Table A– United States parent company. Provide * * * * * 1 of this subpart. the legal name and physical address of Supplier means a producer, importer, * * * * * the joint venture or cooperative as the or exporter in any supply category

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47408 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

included in Table A–5, as defined by 6. Section 98.9 introductory text is communications that can be submitted the corresponding subpart of this part. revised to read as follows: through the electronic greenhouse gas * * * * * reporting tool, shall be submitted to the United States parent company(s) § 98.9 Addresses. following address: means the highest-level United States All requests, notifications, and * * * * * company(s) with an ownership interest communications to the Administrator 7. Table A–3 to subpart A is amended in the facility or supplier as of pursuant to this part, other than by revising the entry for ‘‘Underground December 31 of the year for which data submittal of the annual GHG report; the coal mines’’ and for ‘‘Electrical are being reported. certificate of representation; and other transmission and distribution * * * * * requests, notifications or equipment use’’ to read as follows:

TABLE A–3 OF SUBPART A OF PART 98—SOURCE CATEGORY LIST FOR § 98.2(a)(1)

Source Categories a Applicable in 2010 and Future Years

******* Additional Source Categories a Applicable in 2011 and Future Years

******* Electrical transmission and distribution equipment use at facilities where the total nameplate capacity of SF6 and PFC containing equipment ex- ceeds 17,820 pounds, as determined under § 98.301 (subpart DD). Underground coal mines liberating 36,500,000 actual cubic feet of CH4 or more per year (subpart FF).

******* a Source categories are defined in each applicable subpart.

8. Table A–5 to subpart A is amended product suppliers (subpart MM)’’ to by revising the entries for ‘‘Petroleum read as follows:

TABLE A–5 TO SUBPART A OF PART 98—SUPPLIER CATEGORY LIST FOR § 98.2(a)(4)

Supplier Categoriesa Applicable in 2010 and Future Years

******* Petroleum product suppliers (subpart MM): (A) All petroleum refineries that distill crude oil. (B) Importers of an annual quantity of petroleum products and natural gas liquids that is equivalent to 25,000 metric tons CO2e or more. (C) Exporters of an annual quantity of petroleum products and natural gas liquids that is equivalent to 25,000 metric tons CO2e or more.

******* a Suppliers are defined in each applicable subpart.

Subpart W—[Amended] (i) For natural gas distribution, report h. In paragraph (h), revising the CO2 and CH4 emissions from the definitions of ‘‘Ea,n’’, ‘‘EFwo’’, and ‘‘Vf’’ 9. Section 98.230 is amended by following sources: in Equation W–13. revising paragraph(a)(3)(ii) to read as * * * * * i. Removing paragraph (h)(1). follows: 11. Section 98.233 is amended by: j. Redesignating paragraphs (h)(2) and § 98.230 Definition of the source category. a. Revising the definition of ‘‘GHGi’’ (h)(3) as paragraphs (h)(1) and (h)(2), in Equation W–1 of paragraph (a). respectively, and revising new (a) * * * b. Revising the definition of ‘‘GHGi’’ paragraph (h)(1). (3) * * * in Equation W–2 and W–2 in paragraph k. Revising paragraphs (i) (ii) All processing facilities that do (c). introductory text and (i)(2). not fractionate with annual average c. Revising the first sentence of l. Revising the definition of ‘‘Vv’’ in throughput of 25 MMscf per day or paragraphs (d)(2), (d)(3), and (d)(4). Equation W–14 of paragraph (i)(3). greater. d. Revising paragraphs (e) m. Revising paragraph (i)(4). * * * * * introductory text, (e)(1) introductory n. Revising the first sentence of 10. Section 98.232 is amended by text, (e)(1)(xi) introductory text, paragraph (j)(1) and revising paragraph revising paragraph (d) introductory text (e)(1)(xi)(A) through (C), and (e)(2) (j)(1)(vii). and paragraph (i) introductory text to introductory text. o. Revising paragraphs (j)(2), (j)(3) read as follows: e. Revising paragraph (f)(2) introductory text, and (j)(4) introductory introductory text. text. § 98.232 GHGs to report. f. In paragraph (f)(2), revising the p. In paragraph (j)(5), revising * * * * * introductory text, Equation W–8, and Equation W–15, revising the definitions (d) For onshore natural gas definitions of Equation W–8. of ‘‘EFi’’ and ‘‘Count’’, and defining the processing, report CO2, CH4, and N2O g. In paragraph (f)(3), revising use of ‘‘1,000’’. emissions from the following sources: Equation W–9 and the definitions of q. In paragraph (j)(8), revising * * * * * Equation W–9. Equation W–16, revising the definition

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47409

of ‘‘En’’, removing the definition of (d) * * * control devices, a separator flash tank, ‘‘Et’’, and defining the use of ‘‘8,760’’. (2) Calculation Methodology 2. If stripping gas and a gas injection pump r. Revising paragraphs (k)(2) and CEMS is not available but a vent meter or gas assist pump. A minimum of the (k)(4). is installed, use the CO2 composition following parameters determined by s. Revising paragraph (q) introductory and annual volume of vent gas to engineering estimate based on best text. calculate emissions using Equation available data must be used to t. Revising the definition of ‘‘ri’’ in W–3 of this section. characterize emissions from Equation W–36 of paragraph (v). * * * * * dehydrators: u. Revising paragraph (z) introductory (3) Calculation Methodology 3. If * * * * * text. CEMS or a vent meter is not installed, (xi) Wet natural gas composition. v. In paragraph (z)(2)(iii), revising you may use the inlet or outlet gas flow Determine this parameter by selecting Equation W–39; adding Equations W– rate of the acid gas removal unit to one of the methods described under 39A and W–39B; adding definitions for calculate emissions for CO using 2 paragraph (e)(1)(xi) of this section. ‘‘Ea,CH4’’, ‘‘h’’, ‘‘YCO2’’, and ‘‘YCH4’’; and Equation W–4 of this section. revising the definitions of ‘‘Yj’’ and (A) Use the wet natural gas * * * * * ‘‘Rj’’. (4) Calculation Methodology 4. If composition as defined in paragraph w. Revising paragraph (z)(3). (u)(2)(i) or (u)(2)(ii) of this section. x. Removing paragraphs (z)(6)(i) CEMS or a vent meter is not installed, you may calculate emissions using any (B) If wet natural gas composition through (z)(6)(iii). cannot be determined using paragraph y. Redesignating paragraphs (z)(4), standard simulation software packages, ® (u)(2)(i) or (u)(2)(ii) of this section, (z)(5), and (z)(6) as (z)(2)(iv), (z)(2)(v), such as AspenTech HYSYS and API select a representative analysis. and (z)(2)(vi), respectively. 4679 AMINECalc, that uses the Peng- z. In newly redesignated paragraph Robinson equation of state, and (C) You may use an appropriate (z)(2)(vi), revising Equation W–40 and speciates CO2 emissions. * * * standard method published by a revising the definition of ‘‘HHV’’. * * * * * consensus-based standards organization (e) Dehydrator vents. For dehydrator if such a method exists or you may use § 98.233 Calculating GHG emissions. vents, calculate annual CH4, CO2 and an industry standard practice as * * * * * N2O (when flared) emissions using any specified in § 98.234(b) to sample and (a) * * * of the calculation methodologies analyze wet natural gas composition.

GHGi = For onshore petroleum and natural described in paragraph (e) of this * * * * * gas production facilities, concentration section. (2) Calculation Methodology 2. of GHGi, CH4 or CO2, in produced (1) Calculation Methodology 1. Calculate annual CH4 and CO2 natural gas as defined in paragraph Calculate annual mass emissions from emissions from glycol dehydrators with (u)(2)(i) of this section; for facilities dehydrator vents with annual average annual average daily throughput less listed in § 98.230(a)(4) and (a)(5), GHGi daily throughput greater than or equal to ¥2 equals 0.952 for CH4 and 1×10 for than 0.4 million cubic feet per day using 0.4 million standard cubic feet per day Equation W–5 of this section: * * * CO2. using a software program, such as * * * * * AspenTech HYSYS® or GRI–GLYCalc, * * * * * (c) * * * that uses the Peng-Robinson equation of (f) * * * GHGi = Concentration of GHGi, CH4 or CO2, state to calculate the equilibrium (2) Calculation Methodology 2. in produced natural gas as defined in coefficient, speciates CH4 and CO2 Calculate the total emissions for well paragraph (u)(2)(i) of this section. emissions from dehydrators, and has venting for liquids unloading using * * * * * provisions to include regenerator Equation W–8 of this section.

Where: WDW = Well depth to first producing horizon 1.0 = Hours for average well to blowdown for each well, in feet. Ea,n = Annual natural gas emissions at actual casing volume at shut-in pressure. SP = Shut-in pressure for each well, in conditions, in cubic feet/year. W ZV,W = If HRV,W is less than 1.0 then ZV,W is pounds square inch atmosphere (psia). W = Number of wells with well venting for equal to 0. If HRV,W is greater than or VW = Number of vents per year per well. liquids unloading at the facility. equal to 1.0 then ZV,W is equal to 1. SFRW = Average sales flow rate of each gas × ¥3 { } { } 0.37 10 = 3.14 (pi)/4 / 14.7*144 (psia well in cubic feet per hour. * * * * * converted to pounds per square feet). HRV,W = Hours that each well was left open (3) * * * CDW = Casing diameter for each well, in to the atmosphere during each unloading inches. event.

Where: W = Number of wells with well venting for TDW = Tubing diameter for each well, in

Ea,n = Annual natural gas emissions at actual liquids unloading at the facility. inches. × ¥3 { } { } conditions, in cubic feet/year. 0.37 10 = 3.14 (pi)/4 / 14.7*144 (psia WDW = Tubing depth to plunger bumper for converted to pounds per square feet). each well, in feet.

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.033 EP04AU11.034 47410 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

SPW = Sales line pressure for each well, in (2) Calculate annual emissions from (vii) Separator oil composition and pounds per square inch atmospheric gas well venting during well Reid vapor pressure. If this data is not (psia). completions and workovers not available, determine these parameters N = Number of vents per year per well. V involving hydraulic fracturing to flares by selecting one of the methods SFRW = Average sales flow rate of each gas well in cubic feet per hour. as follows: described under paragraph (j)(1)(vii) of HRV,W = Hours that each well was left open * * * * * this section. to the atmosphere during each unloading (i) Blowdown vent stacks. Calculate * * * * * event. CO and CH blowdown vent stack 2 4 (2) Calculation Methodology 2. 0.5 = Hours for average well to blowdown emissions from depressurizing tubing volume at sales line pressure. Calculate annual CH4 and CO2 Z = If HR is less than 0.5 then Z is equipment to the atmosphere (excluding V,W V,W V,W depressurizing to a flare, over-pressure emissions from onshore production equal to 0. If HRV,W is greater than or storage tanks for wellhead gas-liquid equal to 0.5 then ZV,W is equal to 1. relief, operating pressure control venting and blowdown of non-GHG separators with annual average daily * * * * * throughput of oil greater than or equal (h) * * * gases; desiccant dehydrator blowdown venting before reloading is covered in to 10 barrels per day by assuming that Es,n = Annual natural gas emissions in paragraph (e)(5) of this section) as all of the CH4 and CO2 in solution at standard cubic feet from a gas well follows (Emissions from emergency separator temperature and pressure is venting during well completions and emitted from oil sent to storage tanks. workovers without hydraulic fracturing. events are not included.): You may use an appropriate standard * * * * * * * * * * method published by a consensus-based EFwo = Emission Factor for non-hydraulic (2) If the total physical volume fracture well workover venting in between isolation valves is greater than standards organization if such a method exists or you may use an industry standard cubic feet per workover. EFwo = or equal to 50 cubic feet, retain logs of 3114 standard cubic feet per well the number of blowdowns for each standard practice as described in workover without hydraulic fracturing. equipment type (including but not § 98.234(b) to sample and analyze * * * * * limited to compressors, vessels, separator oil composition at separator Vf = Average daily gas production rate in pipelines, headers, fractionators, and pressure and temperature. standard cubic feet per hour of each well (3) Calculation Methodology 3. For completion without hydraulic fracturing. tanks). Blowdown volumes smaller than This is the total annual gas production 50 standard cubic feet are exempt from wells with annual average daily oil volume divided by total number of hours reporting under paragraph (i) of this production greater than or equal to 10 the wells produced to the sales line. For section. barrels per day that flow directly to completed wells that have not (3) * * * atmospheric storage tanks without

established a production rate, you may Vv = Total physical volume of blowdown passing through a wellhead separator, use the average flow rate from the first equipment chambers (including calculate annual CH4 and CO2 emissions 30 days of production. In the event that pipelines, compressors and vessels) by either of the methods in paragraph the well is completed less than 30 days between isolation valves in cubic feet. from the end of the calendar year, the (j)(3) of this section: first 30 days of the production straddling * * * * * * * * * * the current and following calendar years (4) Calculate both CH4 and CO2 shall be used. volumetric and mass emissions using (4) Calculation Methodology 4. For calculations in paragraph (u) and (v) of wells with annual average daily oil (1) Volumetric emissions for both CH4 this section. production greater than or equal to 10 and CO2 shall be calculated from barrels per day that flow to a separator * * * * * volumetric natural gas emissions using not at the well pad, calculate annual calculations in paragraphs (u) of this (j) * * * CH4 and CO2 emissions by either of the section. Mass emissions for both CH4 (1) Calculation Methodology 1. For separators with annual average daily methods in paragraph (j)(4) of this and CO2 shall be calculated from section: volumetric natural gas emissions using throughput of oil greater than or equal calculations in paragraphs (v) of this to 10 barrels per day. * * * * * * * * section. * * * * * (5) * * *

Where: cubic feet per separator or well per year, Count = Total number of separators or wells

Es,i = Annual total volumetric GHG emissions for crude oil use 4.3 for CH4 and 2.9 for with throughput less than 10 barrels per ° day. (either CO2 or CH4) at standard CO2 at 68 F and 14.7 psia, and for gas 1,000 = Conversion to cubic feet. conditions in cubic feet. condensate use 17.8 for CH4 and 2.9 for EFi = Populations emission factor for CO2 at 68°F and 14.7 psia. * * * * * separators or wells in thousand standard (8) * * *

Where: En = Storage tank emissions as determined in section (with wellhead separators) in * * * * * Calculation Methodologies 1, 2, or 4 in cubic feet per year. paragraphs (j)(1), (j)(2) and (j)(4) of this * * * * *

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.035 EP04AU11.036 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47411

8,760 = Conversion to hourly emissions. (q) Leak detection and leaker section for each source with equipment * * * * * emission factors. You must use the leaks. (k) * * * methods described in § 98.234(a) to * * * * * (2) If the tank vapors are continuous conduct leak detection(s) of equipment (v) * * * for 5 minutes, or the acoustic leak leaks from all sources listed in 3 detection device detects a leak, then use § 98.232(d)(7), (e)(7), (f)(5), (g)(3), (h)(4), ri = Density of GHG i. Use 0.0520 kg/ft for 3 one of the following two methods in and (i)(1). This paragraph (q) applies to CO2 and N2O, and 0.0190 kg/ft for CH4 at 68°F and 14.7 psia or 0.0530 kg/ft3 for paragraph (k)(2) of this section to emissions sources in streams with gas 3 CO2 and N2O, and 0.0193 kg/ft for CH4 quantify annual emissions: content greater than 10 percent CH4 plus at 60°F and 14.7 psia. CO by weight. Emissions sources in * * * * * 2 * * * * * (4) Calculate annual emissions from streams with gas content less than 10 (z) Onshore petroleum and natural storage tanks to flares as follows: percent CH4 plus CO2 by weight do not (i) Use the storage tank emissions need to be reported. Tubing systems gas production and natural gas volume and gas composition as equal to or less than one half inch distribution combustion emissions. determined in paragraphs (k)(1) through diameter are exempt from the Calculate CO2, CH4, and N2O (k)(3) of this section. requirements of this paragraph (q) and combustion-related emissions from (ii) Use the calculation methodology do not need to be reported. If equipment stationary or portable equipment, except of flare stacks in paragraph (n) of this leaks are detected for sources listed in as specified in paragraph (z)(3) of this section to determine storage tank this paragraph (q), calculate equipment section, as follows: emissions sent to a flare. leak emissions per source per reporting (2) * * * * * * * * facility using Equation W–30 of this (iii) * * *

Where: propane, butane, and pentanes plus) in (iv) Calculate GHG volumetric * * * * * gas sent to combustion unit. emissions at standard conditions using YCH4 = Concentration of methane constituent Ea,CH4 = Contribution of annual CH4 calculations in paragraph (t) of this emissions from portable or stationary in gas sent to combustion unit. section. fuel combustion sources in cubic feet, YCO2 = Concentration of CO2 constituent in (v) Calculate both combustion-related under actual conditions. gas sent to combustion unit. CH4 and CO2 mass emissions from h = Combustion efficiency for portable and Rj = Number of carbon atoms in the gas stationary equipment determined based volumetric CH4 and CO2 emissions hydrocarbon constituent j; 1 for methane, using calculation in paragraph (v) of this on engineering estimation. 2 for ethane, 3 for propane, 4 for butane, section. * * * * * and 5 for pentanes plus) in gas sent to Yj = Concentration of gas hydrocarbon combustion unit. (vi) Calculate N2O mass emissions constituents j (such as methane, ethane, using Equation W–40 of this section.

Where: (3) External fuel combustion sources 12. Section 98.234 is amended by * * * * * with a rated heat capacity equal to or revising Equation W–41 of paragraph (e) HHV = For the high heat value for field gas less than 5 mmBtu/hr do not need to to read as follows: or process vent gas, use 1.235 x 10¥3 report combustion emissions or include these emissions for threshold § 98.234 Monitoring and QA/QC mmBtu/scf for HHV. requirements. determination in § 98.231(a). You must * * * * * report the type and number of each * * * * * external fuel combustion unit. (e) * * *

Where: T = Absolute temperature. p = Absolute pressure. Vm = Molar volume. R = Universal gas constant.

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.037 EP04AU11.038 EP04AU11.039 47412 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

Where: § 98.236 Data reporting requirements. (i) Total number of blowdowns per w = Acentric factor of the species. * * * * * unique volume type in calendar year. Tc = Critical temperature. (c) * * * * * * * * Pc = Critical pressure. (6) * * * 14. Tables W–3 and W–4 to subpart W * * * * * (ii) * * * are amended by revising the entries for (B) Total count of workovers in 13. Section 98.236 is amended by ‘‘Low Continuous Bleed Pneumatic calendar year that flare gas or vent gas Device Vents’’, ‘‘High Continuous Bleed revising paragraphs (c)(6)(ii)(B) and to the atmosphere. (c)(7)(i). Pneumatic Device Vents’’, and * * * * * ‘‘Intermittent Bleed Pneumatic Device (7) * * * Vents’’ as follows:

TABLE W–3 TO SUBPART W OF PART 98—DEFAULT TOTAL HYDROCARBON EMISSION FACTORS FOR ONSHORE NATURAL GAS TRANSMISSION COMPRESSION

Emission factor Onshore natural gas transmission compression (scf/hour/component)

Leaker Emission Factors—Compressor Components, Gas Service

******* Leaker Emission Factors—Non-Compressor Components, Gas Service

******* Population Emission Factors—Gas Service Low Continuous Bleed Pneumatic Device Vents 2 ...... 1.79 High Continuous Bleed Pneumatic Device Vents 2 ...... 20.1 Intermittent Bleed Pneumatic Device Vents 2 ...... 20.1 1 Valves include control valves, block valves and regulator valves. 2 Emission Factor is in units of ‘‘scf/hour/device’’.

TABLE W–4 TO SUBPART W OF PART 98—DEFAULT TOTAL HYDROCARBON EMISSION FACTORS FOR UNDERGROUND NATURAL GAS STORAGE

Emission factor Underground natural gas storage (scf/hour/component)

Leaker Emission Factors—Storage Station, Gas Service

******* Population Emission Factors—Storage Wellheads, Gas Service

******* Population Emission Factors—Other Components, Gas Service Low Continuous Bleed Pneumatic Device Vents 2 ...... 1.79 High Continuous Bleed Pneumatic Device Vents 2 ...... 20.1 Intermittent Bleed Pneumatic Device Vents 2 ...... 20.1 1 Valves include control valves, block valves and regulator valves. 2 Emission Factor is in units of ‘‘scf/hour/device’’.

Subpart FF—[Amended] § 98.322 GHGs to report. Tables A–3, A–4 or A–5, or from * * * * * stationary combustion (subpart C), is not 15. Section 98.322 is amended by (f) An underground coal mine that is required to report emissions under revising paragraph (f) to read as follows: subject to this part because emissions subpart FF of this part unless the coal from source categories described in mine liberates 36,500,000 actual cubic

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.040 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47413

feet (acf) or more of methane per year (including by flaring), you must monitored from each well and gob gas from its ventilation system. calculate the quarterly CH4 destroyed vent hole, from a centralized monitoring 16. Section 98.323 is amended by: for each destruction device and each point, or from a combination of the two a. Revising the definitions of ‘‘V’’, point of offsite transport to a destruction options. Operators are allowed ‘‘C’’, and ‘‘P’’ in Equation FF–1 of device, using Equation FF–5 of this flexibility for aggregating emissions paragraph (a). section. You must measure CH4 content from more than one well or gob gas vent b. Revising the first sentence of and flow rate according to the hole, as long as emissions from all are paragraph (a)(2). provisions in § 98.324, and calculate the addressed, and the methodology for c. Revising the definitions of ‘‘Vi’’, methane routed to the destruction calculating total emissions is ‘‘Ci’’, Ti, and ‘‘Pi’’ in equation FF–3 of device (CH4) using either Eq. FF–1 or documented. Monitor both gas volume paragraph (b). Eq. FF–3, as applicable. and methane concentration by one of d. Revising the first sentence of * * * * * the following two options: parapraph (b)(1). 17. Section 98.324 is amended by: (1) Monitor emissions through the use e. Revising paragraph (c) introductory a. Revising paragraphs (b)(1) and of one or more continuous emissions text. (b)(2). monitoring systems (CEMS). If operators b. Revising paragraph (c). use CEMS as the basis for emissions § 98.323 Calculating GHG emissions. c. Revising paragraph (d). reporting, they must provide (a) * * * d. Revising paragraph (e) introductory documentation on the process for using V = Volumetric flow rate for the quarter (cfm) text. data obtained from their CEMS to based on sampling or a flow rate meter. e. Revising paragraphs (g) and (h). estimate emissions from their mine If a flow rate meter is used and the meter ventilation systems. § 98.324 Monitoring and QA/QC (2) Collect weekly (once each calendar automatically corrects for temperature requirements. and pressure, replace ‘‘520°R/T × P/1 week, with at least three days between atm’’ with ‘‘1’’. * * * * * measurements) or more frequent (b) * * * samples, for all degasification wells and * * * * * (1) Collect quarterly or more frequent C = CH4 concentration of ventilation gas for gob gas vent holes. Determine weekly or the quarter (%). grab samples (with no fewer than 6 more frequent flow rates, methane weeks between measurements) for concentration, temperature, and * * * * * methane concentration and make P = Pressure at which flow is measured (atm) pressure from these degasification wells for the quarter. The annual average quarterly measurements of flow rate, and gob gas vent holes. Methane barometric pressure from the nearest temperature, pressure, and moisture composition should be determined NOAA weather service station may be content, if applicable. The sampling and either by submitting samples to a lab for used as a default. measurements must be made at the analysis, or from the use of * * * * * same locations as MSHA inspection methanometers at the degasification samples are taken, and should be taken (2) Values of V, C, T, P, and fH2O, if well site. Follow the sampling protocols applicable, must be based on when the mine is operating under for sampling of methane emissions from measurements taken at least once each normal conditions. You must follow ventilation shafts, as described in quarter with no fewer than 6 weeks MSHA sampling procedures as set forth § 98.324(b)(1). You must record the date between measurements. * * * in the MSHA Handbook entitled, of sampling, flow, temperature, * * * * * General Coal Mine Inspection pressure, and moisture measurements, (b) * * * Procedures and Inspection Tracking the methane concentration (percent), the System Handbook Number: PH–08–V–1, bottle number of samples collected, and Vi = Measured volumetric flow rate for the January 1, 2008 (incorporated by days in the week when the degasification the location of the measurement or reference, see § 98.7). You must record collection. system is in operation at that monitoring the date of sampling, flow, temperature, point, based on sampling or a flow rate (3) If the CH4 concentration is meter (cfm). If a flow rate meter is used pressure, and moisture measurements, determined on a dry basis and flow is the methane concentration (percent), the and the meter automatically corrects for determined on a wet basis or CH4 temperature and pressure, replace bottle number of samples collected, and concentration is determined on a wet ° × ‘‘520 R/Ti Pi/1 atm’’ with ‘‘1’’. the location of the measurement or basis and flow is determined on a dry * * * * * collection. basis, and the flow meter does not (2) Obtain results of the quarterly (or Ci = CH4 concentration of gas for the days in automatically correct for moisture the week when the degasification system more frequent) testing performed by content, determine the moisture content is in operation at that monitoring point MSHA for the methane flowrate. At the in the gas in a location near or (%). time and location of the MSHA representative of the location of: * * * * * sampling, make measurements of (i) The gas flow meter at least once Ti = Temperature at which flow is measured temperature, pressure and moisture ° each calendar week; if measuring with ( R). content using the same procedures CEMS. If only one measurement is made Pi = Pressure at which flow is measured specified in paragraph (b)(1) of this (atm). each calendar week, there must be at section. If the MSHA data for methane least three days between measurements; * * * * * flow is provided in the units of actual and (1) Values for V, C, T, P, and fH2O, cubic feet of methane per day, the (ii) The grab sample, if using grab if applicable, must be based on methane flow data is inserted into samples, at the time of the sample. measurements taken at least once each Equation FF–1 of this section in place (d) Monitoring must adhere to one of calendar week with at least 3 days of the value for V and the variables the methods specified in paragraphs between measurements. * * * MCF, C/100%, and 1440 are removed (d)(1) through (d)(2) of this section. * * * * * from the equation. (1) ASTM D1945–03, Standard Test (c) If gas from degasification system * * * * * Method for Analysis of Natural Gas by wells or ventilation shafts is sold, used (c) For CH4 liberated at degasification Gas Chromatography; ASTM D1946–90 onsite, or otherwise destroyed systems, determine whether CH4 will be (Reapproved 2006), Standard Practice

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47414 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

for Analysis of Reformed Gas by Gas calibrate the instrument with CH4 and collection of a subsequent grab sample, Chromatography; ASTM D4891–89 determine the total gaseous organic determine the gaseous organic (Reapproved 2006), Standard Test concentration as carbon (or as CH4; K = concentration of the gas using either Method for Heating Value of Gases in 1 in Equation 25A–1 of Method 25A at Method 25A or 25B at 40 CFR part 60, Natural Gas Range by Stoichiometric 40 CFR part 60, appendix A–7). appendix A–7 as specified in paragraph Combustion; or ASTM UOP539–97 (ii) Determine a correction factor that (d)(2)(i) of this section. Refinery Gas Analysis by Gas will be used with the gaseoue organic Chromatography (incorporated by concentrations measured in paragraph (C) Determine the arithmetic average reference, see § 98.7). (i) of this section. The correction factor methane concentration and the (2) As an alternative to the gas must be determined at the routine arithmetic average gaseous organic chromatography methods provided in sampling location no less frequently concentration of the samples analyzed paragraph (d)(1) of this section, you may than once a reporting year following the according to paragraphs (d)(2)(ii)(A) and use gaseous organic concentration requirements in paragraphs (d)(2)(ii)(A) (d)(2)(ii)(B) of this section, respectively, analyzers and a correction factor to through (d)(2)(ii)(C) of this section. and calculate the non-methane organic calculate the CH4 concentration (A) Take a minimum of three grab carbon correction factor as the ratio of following the requirements in samples of the gas with a minimum of the average methane concentration to paragraphs (d)(2)(i) through (d)(2)(iii) of 20 minutes between samples and the average total gaseous organic this section. determine the methane composition of concentration. If the ratio exceeds 1, use (i) Use Method 25A or 25B at 40 CFR the gas using one of the methods 1 for the correction factor. part 60, appendix A–7 to determine specified in paragraph (d)(1) of this (iii) Calculate the CH concentration gaseous organic concentration as section. 4 required in § 98.323 and in paragraphs (B) As soon as practical after each as specified in Equation FF–9 of this (b) and (c) of this section. You must grab sample is collected and prior to the section:

Where: operated and calibrated using the (scfm), date and location of each CCH4 = Methane (CH4) concentration in the procedures and frequencies specified by measurement, and method of gas (volume %) for use in Equations FF– the manufacturer. measurement (quarterly sampling or 1 and FF–3 of this subpart. (h) If applicable, the owner or continuous monitoring), used in fNMOC = Correction factor from the most operator shall document the procedures Equation FF–1. recent determination of the correction used to ensure the accuracy of gas flow factor as specified in paragraph (d)(2)(ii) * * * * * of this section (unitless). rate, gas composition, temperature, (h) Weekly volumetric flow rate used CTGOC = Gaseous organic carbon pressure, and moisture content to calculate CH4 liberated from concentration measured using Method measurements. These procedures degasification systems (cfm) and 25A or 25B at 40 CFR part 60, appendix include, but are not limited to, method of measurement (sampling or A–7 during routine monitoring of the gas calibration of flow meters, and other continuous monitoring), used in (volume %). measurement devices. The estimated Equation FF–3. (e) All flow meters and gas accuracy of measurements, and the * * * * * composition monitors that are used to technical basis for the estimated (j) Weekly volumetric flow rate used provide data for the GHG emissions accuracy shall be recorded. to calculate CH destruction for each 18. Section 98.325 is amended by 4 calculations shall be calibrated prior to destruction device and each point of revising the first sentence of paragraph the first reporting year, using the offsite transport (cfm). applicable methods specified in (b) as follows: (k) Weekly CH4 concentration (%) paragraphs (d), and (e)(1) through (e)(7) used to calculate CH flow to each of this section. Alternatively, calibration § 98.325 Procedures for estimating 4 missing data. destruction device and each point of procedures specified by the flow meter offsite transport (C). manufacturer may be used. Flow meters * * * * * (b) For each missing value of CH4 * * * * * and gas composition monitors shall be ° recalibrated either at the minimum concentration, flow rate, temperature, (o) Temperatures ( R), pressure (atm), frequency specified by the manufacturer pressure, and moisture content for and moisture content used in Eq. FF–1 or annually. The operator shall operate, ventilation and degasification systems, and FF–3, and the gaseous organic maintain, and calibrate a gas the substitute data value shall be the concentration correction factor, if composition monitor capable of arithmetic average of the quality-assured Equation FF–9 was required. values of that parameter immediately measuring the concentration of CH4 in * * * * * the gas using one of the methods preceding and immediately following specified in paragraph (d) of this the missing data incident. * * * Subpart II—[Amended] Section 98.326 is amended by: section. The operator shall operate, 19. Section 98.350 is amended by maintain, and calibrate the flow meter a. Revising paragraph (f). b. Revising paragraph (h). revising the first sentence of paragraph using any of the following test methods c. Revising paragraph (j). (b) introductory text to read as follows: or follow the procedures specified by d. Revising paragraph (k). § 98.350 Definition of Source Category the flow meter manufacturer. Flow e. Revising paragraph (o). meters must meet the accuracy * * * * * requirements in § 98.3(i). § 98.326 Data reporting requirements. (b) An anaerobic process is a * * * * * * * * * * procedure in which organic matter in (g) All temperature, pressure, and (f) Quarterly volumetric flow rate for wastewater, wastewater treatment moisture content monitors must be each ventilation monitoring point sludge, or other material is degraded by

VerDate Mar<15>2010 19:14 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.041 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47415

micro-organisms in the absence of equipped with automatic correction for CH4 concentration if the cumulative oxygen, resulting in the generation of temperature, pressure, or, if necessary, volume of biogas for that calendar week, CO2 and CH4. *** moisture content, you must determine determined as specified in paragraph (c) * * * * * these parameters as specified in of this section, is zero. 20. Section 98.352 is amended by paragraph (c)(2)(ii) of this section. (ii) If the gas flow meter is not revising paragraph (d) as follows: (1) If you continuously monitor CH4 equipped with automatic correction for concentration (and if necessary, temperature, pressure, or, if necessary, § 98.352 GHGs to report. temperature, pressure, and moisture moisture content: * * * * * content required as specified in (A) Determine the temperature and (d) You must report under subpart C § 98.354(f)) of the biogas that is pressure in the biogas that is collected of this part (General Stationary Fuel collected and routed to a destruction and routed to a destruction device in a Combustion Sources) the emissions of device using a monitoring meter location near or representative of the CO2, CH4, and N2O from each stationary specifically for CH gas, as specified in 4 location of the gas flow meter at least combustion unit associated with the § 98.354(g), you must use this once each calendar week; if only one biogas destruction device, if present, by monitoring system and calculate the measurement is made each calendar following the requirements of subpart C quantity of CH recovered for 4 week, there must be at least three days of this part. destruction using Equation II–4 of this between measurements. 21. Section 98.353 is amended by: section. A fully integrated system that (B) If the CH4 concentration is a. Revising paragraph (a)(2). directly reports CH4 quantity requires b. Revising paragraph (c) introductory only the summing of results of all determined on a dry basis and biogas text and paragraph (c)(1) introductory monitoring periods for a given year. flow is determined on a wet basis, or CH concentration is determined on a text. * * * * * 4 c. Revising the definitions of ‘‘Rn’’, wet basis and biogas flow is determined ‘‘Tm’’, and ‘‘Pm’’ in Equation II–4 of Rn = Annual quantity of CH4 recovered from on a dry basis, and the flow meter does paragraph (c)(1). the nth anaerobic reactor, sludge not automatically correct for moisture d. Revising paragraph (c)(2). digester, or lagoon (metric tons CH4/yr) content, determine the moisture content e. Revising paragraph (d) introductory * * * * * in the biogas that is collected and routed text. Tm = Average temperature at which flow is to a destruction device in a location measured for the measurement period f. Revising the definition of ‘‘Rn’’ in ° near or representative of the location of Equation II–5 in paragraph (d)(1). ( R). If the flow rate meter automatically corrects for temperature to 520° R, the gas flow meter at least once each g. Revising Equation II–6 and revising replace ‘‘520° R/Tm’’ with ‘‘1’’. calendar week that the cumulative the definition of ‘‘CH4En’’, ‘‘Rn’’, ‘‘DE1’’, P = Average pressure at which flow is biogas flow measured as specified in _ m and ‘‘fDest 1’’ in paragraph (d)(2). measured for the measurement period § 98.354(h) is greater than zero; if only (atm). If the flow rate meter § 98.353 Calculating GHG emissions. one measurement is made each calendar automatically corrects for pressure to 1 week, there must be at least three days (a) * * * atm, replace ‘‘Pm/1’’ with ‘‘1’’. between measurements. (2) If you measure the concentration * * * * * of organic material entering an (d) For each anaerobic sludge digester, (2) If you do not continuously monitor anaerobic reactor, or anaerobic lagoon anaerobic reactor or anaerobic lagoon CH4 concentration according to using methods for the determination of from which some quantity of biogas is paragraph(c)(1) of this section, you must recovered, you must estimate both the 5-day biochemical oxygen demand determine the CH4 concentration, annual mass of CH4 that is generated, (BOD5), then estimate annual mass of temperature, pressure, and, if necessary, but not recovered, according to CH4 generated using Equation II–2 of moisture content of the biogas that is this section. paragraph (d)(1) of this section and the collected and routed to a destruction annual mass of CH emitted according * * * * * 4 device according to the requirements in to paragraph (d)(2) of this section. (c) For each anaerobic sludge digester, paragraphs (c)(2)(i) through (c)(2)(ii) of anaerobic reactor, or anaerobic lagoon this section and calculate the quantity of (1) * * * from which some biogas is recovered, CH4 recovered for destruction using Rn = Annual quantity of CH4 recovered from estimate the annual mass of CH4 Equation II–4 of this section. the nth anaerobic reactor, anaerobic recovered according to the requirements (i) Determine the CH4 concentration lagoon, or anaerobic sludge digester, as in paragraphs (c)(1) and (c)(2) of this in the biogas that is collected and routed calculated in Equation II–4 of this section. To estimate the annual mass of to a destruction device in a location section (metric tons CH4). CH4 recovered, you must continuously near or representative of the location of * * * * * monitor biogas flow rate and determine the gas flow meter at least once each (2) For each anaerobic sludge digester, the volume of biogas each week and the calendar week; if only one measurement anaerobic reactor, or anaerobic lagoon cumulative volume of biogas each year is made each calendar week, there must from which some quantity of biogas is that is collected and routed to a be least three days between recovered, estimate the annual mass of destruction device as specified in measurements. For a given calendar CH4 emitted using Equation II–6 of this § 98.354(h). If the gas flow meter is not week, you are not required to determine section.

Where: Rn = Annual quantity of CH4 recovered from DE1 = Primary destruction device CH4

CH4En = Annual quantity of CH4 emitted the nth anaerobic reactor or anaerobic destruction efficiency (lesser of from the process n from which biogas is sludge digester, as calculated in Equation manufacturer’s specified destruction recovered (metric tons). II–4 of this section (metric tons CH4). efficiency and 0.99). If the biogas is * * * * *

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.042 47416 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

transported off-site for destruction, use you determine the concentration measurements of COD or BOD5 DE=1. intermittently, you must determine the concentration, wastewater flow rate, _ fDest 1 = Fraction of hours the primary concentration at least once each biogas flow rate, biogas composition, destruction device was operating (device calendar week that the cumulative temperature, pressure, and moisture operating hours/hours in the year). If the biogas is transported off-site for biogas flow measured as specified in content. These procedures include, but paragraph (h) of this section is greater are not limited to, calibration of gas flow destruction, use fDest=1. than zero, with at least three days meters, and other measurement devices. * * * * * between measurements. The estimated accuracy of 22. Section 98.354 is amended by: (3) As specified in § 98.353(c) and measurements made with these devices a. Revising the second sentence of paragraph (h) of this section, you must must also be recorded, and the technical paragraph (c). determine temperature, pressure, and b. Revising paragraph (d) introductory basis for these estimates must be moisture content as necessary to text. documented. accurately determine the biogas flow c. Revising paragraph (f). 23. Section 98.355 is amended by rate and CH concentration. You must d. Revising paragraph (g) introductory 4 revising paragraph (b) to read as follows: determine temperature and pressure if text. the gas flow meter or gas composition § 98.355 Procedures for estimating e. Revising paragraph (h) introductory monitor do not automatically correct for missing data. text and paragraph (h)(5). * * * * * f. Revising paragraph (k). temperature or pressure. You must measure moisture content of the (b) For each missing value of the CH4 § 98.354 Monitoring and QA/QC recovered biogas if the biogas flow rate content or biogas flow rates, the requirements. is measured on a wet basis and the CH4 substitute data value must be the (c) * * * You must collect and concentration is measured on a dry arithmetic average of the quality-assured analyze samples for COD or BOD5 basis. You must also measure the values of that parameter immediately concentration at least once each moisture content of the recovered biogas preceding and immediately following calendar week that the anaerobic if the biogas flow rate is measured on a the missing data incident. wastewater treatment process is dry basis and the CH4 concentration is * * * * * operating; if only one measurement is measured on a wet basis. 24. Section 98.356 is amended by: made each calendar week, there must be (g) For each anaerobic process (such a. Revising paragraph (a) introductory at least three days between as an anaerobic reactor, sludge digester, text. or lagoon) from which biogas is measurements. * * * b. Revising paragraphs (b)(3) and recovered, operate, maintain, and (d) You must measure the flowrate of (b)(4). calibrate a gas composition monitor wastewater entering anaerobic c. Revising paragraph (d) introductory capable of measuring the concentration wastewater treatment process at least text and paragraphs (d)(2), (d)(4), (d)(6), of CH in the recovered biogas using one once each calendar week that the 4 and (d)(8). process is operating; if only one of the methods specified in paragraphs measurement is made each calendar (g)(1) through (g)(6) of this section or as § 98.356 Data reporting requirements. week, there must be at least three days specified by the manufacturer. (a) A description or diagram of the between measurements. You must * * * * * industrial wastewater treatment system, measure the flowrate for the 24-hour (h) For each anaerobic process (such identifying the processes used to treat period for which you collect samples as an anaerobic reactor, sludge digester, industrial wastewater and industrial analyzed for COD or BOD5 or lagoon) from which biogas is wastewater treatment sludge. Indicate concentration. The flow measurement recovered, install, operate, maintain, how the processes are related to each location must correspond to the location and calibrate a gas flow meter capable other and identify the anaerobic used to collect samples analyzed for of continuously measuring the processes. Provide a unique identifier COD or BOD5 concentration. You must volumetric flow rate of the recovered for each anaerobic process, indicate the measure the flowrate using one of the biogas using one of the methods average depth in meters of each methods specified in paragraphs (d)(1) specified in paragraphs (h)(1) through anaerobic lagoon, and indicate whether through (d)(5) of this section or as (h)(8) of this section or as specified by biogas generated by each anaerobic specified by the manufacturer. the manufacturer. Recalibrate each gas process is recovered. The anaerobic * * * * * flow meter either biennially (every 2 processes must be identified as: years) or at the minimum frequency (f) For each anaerobic process (such as * * * * * specified by the manufacturer. Except as anaerobic reactor, sludge digester, or (b) * * * lagoon) from which biogas is recovered, provided in § 98.353(c)(2)(iii), each gas (3) Maximum CH4 production you must make the measurements or flow meter must be capable of correcting potential (B0) used as an input to determinations specified in paragraphs for the temperature and pressure and, if necessary, moisture content. Equation II–1 or II–2 of this subpart, (f)(1) through (f)(3) of this section. from Table II–1. (1) You must continuously measure * * * * * (4) Methane conversion factor (MCF) the biogas flow rate as specified in (5) ASME MFC–11M–2006 used as an input to Equation II–1 or II– paragraph (h) of this section and Measurement of Fluid Flow by Means of 2 of this subpart, from Table II–1. determine the cumulative volume of Coriolis Mass Flowmeters (incorporated biogas recovered. by reference, see § 98.7). The mass flow * * * * * (2) You must determine the CH4 must be corrected to volumetric flow (d) For each anaerobic wastewater concentration of the recovered biogas as based on the measured temperature, treatment process and anaerobic sludge specified in paragraph (g) of this section pressure, and biogas composition. digester from which some biogas is at a location near or representative of * * * * * recovered, you must report: the location of the gas flow meter. You (k) If applicable, the owner or * * * * * must determine CH4 concentration operator must document the procedures (2) Total weekly volumetric biogas either continuously or intermittently. If used to ensure the accuracy of flow for each week (up to 52 weeks/

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47417

year) that biogas is collected for Subpart RR—[Amended] reinjection or reuse using methods in destruction. § 98.444(f)(1). The considerations you 27. Section 98.442 is amended by * * * * * intend to use to calculate CO2 from revising paragraphs (e) and (f) to read as produced fluids for the mass balance (4) Weekly average biogas temperature follows: for each week at which flow is equation must be described in your measured for biogas collected for § 98.442 GHGs to report. approved MRV plan in accordance with § 98.448(d)(5). destruction, or statement that * * * * * temperature is incorporated into (e) Mass of CO2 emissions from * * * * * monitoring equipment internal equipment leaks and vented emissions (f) * * * calcultations. of CO2 from surface equipment located (1) * * * * * * * * between the injection flow meter and CO2FI = Total annual CO2 mass emitted the injection wellhead. (metric tons) from equipment leaks and (6) Weekly average biogas pressure for (f) Mass of CO emissions from vented emissions of CO2 from equipment each week at which flow is measured 2 equipment leaks and vented emissions located on the surface between the flow for biogas collected for destruction, or of CO from surface equipment located meter used to measure injection quantity statement that pressure is incorporated 2 between the production flow meter and and the injection wellhead, for which a into monitoring equipment internal calculation procedure is provided in the production wellhead. calcultations. subpart W of this part. * * * * * * * * * * CO2FP = Total annual CO2 mass emitted 28. Section 98.443 is amended by: (metric tons) from equipment leaks and (8) Whether destruction occurs at the a. Revising paragraph (d) introductory vented emissions of CO2 from equipment facility or off-site. If destruction occurs text. located on the surface between the at the facility, also report whether a b. Revising paragraph (d)(3). production wellhead and the flow meter back-up destruction device is present at c. Revising the definition of ‘‘CO2FI’’ used to measure production quantity, for which a calculation procedure is the facility, the annual operating hours and ‘‘CO2FP’’ in Equation RR–11 of for the primary destruction device, the paragraph (f)(1). provided in subpart W of this part. annual operating hours for the back-up d. Revising the definition of ‘‘CO2FI’’ * * * * * destruction device (if present), the in Equation RR–12 of paragraph (f)(2). (2) * * * destruction efficiency for the primary CO = Total annual CO mass emitted § 98.443 Calculating CO geologic 2FI 2 destruction device, and the destruction 2 (metric tons) from equipment leaks and sequestration. efficiency for the back-up destruction vented emissions of CO2 from equipment device (if present). * * * * * located on the surface between the flow (d) You must calculate the annual * * * * * meter used to measure injection quantity mass of CO2 produced from oil or gas and the injection wellhead. Subpart OO—[Amended] production wells or from other fluid 29. Section 98.444 is amended by wells for each separator that sends a revising the heading of paragraph (d) to 25. Section 98.416 is amended by stream of gas into a recycle or end use read as follows: removing and reserving paragraphs system in accordance with the (a)(8) and (a)(9) and revising paragraph procedures specified in paragraphs § 98.444 Monitoring and QA/QC (a)(10) to read as follows: (d)(1) through (d)(3) of this section. You requirements. must account for any CO2 that is * * * * * § 98.416 Data reporting requirements. produced and not processed through a (d) CO2 emissions from equipment * * * * * separator. You must account only for leaks and vented emissions of CO2. (a) * * * wells that produce the CO2 that was *** injected into the well or wells covered (8) [Reserved] * * * * * by this source category. 30. Section 98.445 is amended by (9) [Reserved] * * * * * revising paragraph (e) to read as follows: (10) Mass in metric tons of any (3) To aggregate production data, you § 98.445 Procedures for estimating fluorinated GHG or nitrous oxide fed must sum the mass of all of the CO2 into the transformation process, by separated at each gas-liquid separator in missing data. process. accordance with the procedure specified * * * * * * * * * * in Equation RR–9 of this section. You (e) For any values associated with CO2 emissions from equipment leaks and 26. Section 98.417 is amended by must assume that the total CO2 vented emissions of CO adding paragraphs (a)(3) and (a)(4) to measured at the separator(s) represents 2 from surface equipment at the facility that are read as follows: a percentage of the total CO2 produced. In order to account for the percentage of reported in this subpart, missing data § 98.417 Records that must be retained. CO2 produced that is estimated to estimation procedures should be followed in accordance with those (a) * * * remain with the produced oil or other fluid, you must multiply the quarterly specified in subpart W of this part. (3) Dated records of the total mass in mass of CO2 measured at the * * * * * metric tons of each reactant fed into the separator(s) by a percentage estimated 31. Section 98.446 is amended by: F–GHG or nitrous oxide production using a methodology in your approved a. Revising paragraph (a)(2) process, by process. MRV plan. If fluids containing CO2 from introductory text and (a)(3) introductory (4) Dated records of the total mass in injection wells covered under this text. metric tons of the reactants, by- source category are produced and not b. Revising paragraph (e). products, and other wastes permanently processed through a gas-liquid c. Revising paragraph (f) introductory removed from the F–GHG or nitrous separator, the concentration of CO2 in text. oxide production process, by process. the produced fluids must be measured d. Revising paragraph (f)(1)(vii). * * * * * at a flow meter located prior to e. Revising paragraphs (f)(3).

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 47418 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

§ 98.446 Data reporting requirements. § 98.447 Records that must be retained. § 98.449 Definitions. (a) * * * (a) * * * * * * * * (2) If a volumetric flow meter is used (5) Annual records of information CO2 received means the CO2 stream to receive CO2 report the following used to calculate the CO2 emitted from that you receive to be injected for the unless you reported yes to paragraph equipment leaks and vented emissions first time into a well on your facility (a)(4) of this section: of CO2 from equipment located on the that is covered by this subpart. CO2 * * * * * surface between the flow meter used to received includes, but is not limited to, measure injection quantity and the (3) If a mass flow meter is used to a CO2 stream from a production process injection wellhead. receive CO2 report the following unless unit inside your facility and a CO2 you reported yes to paragraph (a)(4) of (6) Annual records of information stream that was injected into a well on this section: used to calculate the CO2 emitted from another facility, removed from a * * * * * equipment leaks and vented emissions discontinued enhanced oil or natural (e) Report the date that you began of CO2 from equipment located on the gas or other production well, and collecting data for calculating total surface between the production transferred to your facility. wellhead and the flow meter used to amount sequestered according to * * * * * § 98.448(a)(7) of this subpart. measure production quantity. (f) Report the following. If the date * * * * * Subpart TT—[Amended] specified in paragraph (e) of this section 33. Section 98.448 is amended by is during the reporting year for this revising paragraphs (a)(5) and (e) to read 35. Section 98.460 is amended by annual report, report the following as follows: revising paragraphs (c)(1) and (c)(2)(i) to starting on the date specified in read as follows: paragraph (e) of this section. § 98.448 Geologic sequestration (1) * * * monitoring, reporting, and verification § 98.460 Definition of the source category. (MRV) plan. (vii) The standard used to calculate * * * * * (a) * * * each value in paragraphs (f)(1)(ii) (c) * * * through (f)(1)(iv) of this section. (5) A summary of the considerations you intend to use to calculate site- (1) Construction and demolition waste * * * * * landfills. (3) For CO emissions from equipment specific variables for the mass balance 2 equation. This includes, but is not (2) * * * leaks and vented emissions of CO2, report the following: limited to, considerations for calculating (i) Coal combustion or incinerator ash CO2 emissions from equipment leaks (i) The mass of CO2 emitted (in metric (e.g., fly ash). tons) annually from equipment leaks and vented emissions of CO2 between * * * * * the injection flow meter and injection and vented emissions of CO2 from 36. Section 98.463 is amended by: equipment located on the surface well and/or the production flow meter and production well, and considerations a. In paragraph (a)(1), revising between the flow meter used to measure Equation TT–1 and revising the injection quantity and the injection for calculating CO2 in produced fluids. definitions of ‘‘GCH4’’, ‘‘DOCx’’, ‘‘MCF’’, wellhead. * * * * * and ‘‘Fx’’. (ii) The mass of CO2 emitted (in (e) Revised MRV plan. The metric tons) annually from equipment requirements of paragraph (c) of this b. Revising paragraph (a)(2) introductory text. leaks and vented emissions of CO2 from section apply to any submission of a equipment located on the surface revised MRV plan. You must continue c. Revising paragraph (a)(2)(ii)(C). between the production wellhead and reporting under your currently d. In paragraph (a)(2)(ii)(C), revising the flow meter used to measure approved plan while awaiting approval the definitions of ‘‘Wx’’, ‘‘LFC’’, and production quantity. of a revised MRV plan. ‘‘YrData’’ in Equation TT–4. * * * * * * * * * * § 98.463 Calculating GHG emissions. 32. Section 98.447 is amended by 34. Section 98.449 is amended by revising paragraphs (a)(5) and (a)(6) to revising the definition of ‘‘CO2 (a) * * * read as follows: received’’ to read as follows: (1) * * *

Where: landfill during the reporting year. If there (2) Waste stream quantities. GCH4 = Modeled methane generation in is active aeration of waste within the Determine annual waste quantities as reporting year T (metric tons CH4). landfill during the reporting year, use specified in paragraphs (a)(2)(i) through * * * * * either the default value of 1 or select an (ii) of this section for each year starting alternative value no less than 0.5 based DOCx = Degradable organic carbon for waste with January 1, 1960 or the year the disposed in year X from Table TT–1 of on site-specific aeration parameters. landfills first accepted waste if after F = Fraction by volume of CH in landfill gas this subpart or from measurement data 4 January 1, 1960, up until the most (fraction, dry basis, corrected to 0% [as specified in paragraph (a)(3) of this recent reporting year. The choice of section], if available [fraction (metric oxygen). If you have a gas collection method for determining waste quantities tons C/metric ton waste)]. system, use the annual average CH4 concentration from measurement data for will vary according to the availability of * * * * * historical data. Beginning in the first MCF = Methane correction factor (fraction). the current reporting year; otherwise, use Use the default value of 1 unless there the default value of 0.5. emissions reporting year (2011 or later) is active aeration of waste within the * * * * * and for each year thereafter, use the

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.043 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47419

procedures in paragraph (a)(2)(i) of this Wx = Quantity of waste placed in the landfill g. Adding paragraph (g). section to determine waste stream in year X (metric tons, wet basis). This quantities. These procedures should annual bulk waste disposal quantity § 98.464 Monitoring and QA/QC requirements. also be used for any year prior to the applies for all years from ‘‘YrOpen’’ to ‘‘YrData’’ inclusive. * * * * * first emissions reporting year for which LFC = Capacity of the landfill used (or the the data are available. For other (b) For each waste stream received total quantity of waste-in-place) at the during the reporting year for which you historical years, use paragraph (a)(2)(i) end of the ‘‘YrData’’ from design of this section, where waste disposal drawings or engineering estimates choose to determine volatile solids records are available, and use the (metric tons). For closed landfills for concentration for the purposes of procedures outlined in paragraph which waste quantity data are not § 98.460(c)(2)(xii) or choose to (a)(2)(ii) of this section when waste available, use the landfill’s design determine a landfill-specific DOCx for disposal records are unavailable, to capacity. use in Equation TT–1 of this subpart, determine waste stream quantities. YrData = The year prior to the year when you must collect and test a waste disposal data are first available representative sample of that waste Historical disposal quantities deposited from company records or from Equation (i.e., prior to the first year in which stream using the methods specified in TT–3 of this section. For landfills for paragraphs (b)(1) through (b)(4) of this monitoring begins) should only be which waste quantity data are not determined once, as part of the first available, the year in which the landfill section. annual report, and the same values last received waste. (1) Develop and follow a sampling plan to collect a representative sample should be used for all subsequent * * * * * annual reports, supplemented by the 37. Section 98.464 is amended by: of each waste stream (as received at the next year’s data on new waste disposal. a. Revising paragraph (b) introductory landfill) for which testing is elected. * * * * * text. * * * * * (3) For the purposes of (ii) * * * b. Revising paragraph (b)(1). c. Revising paragraph (b)(3). § 98.460(c)(2)(xii), the volatile solids (C) For any year in which historic d. In paragraph (b)(4), revising the concentration (weight percent on a dry production or processing data are not first sentence, redesignating Equation basis) is the percent volatile solids available such that historic waste TT–8 as Equation TT–7, and revising determined using Standard Method quantities cannot be estimated using the definition of ‘‘% Volatile Solidsx’’ 2540G ‘‘Total, Fixed, and Volatile Solids Equation TT–3 of this section, calculate and ‘‘% Total Solidsx’’. in Solid and Semisolid Samples’’ an average annual bulk waste disposal e. Redesignating paragraphs (c), (d),(e) (incorporated by reference; see § 98.7). quantity using Equation TT–4 of this and (f) as paragraphs (d), (e), and (f) and (4) Calculate the waste stream-specific section. (h) respectively. DOCx value using Equation TT–7 of this * * * * * f. Adding paragraph (c). section.

* * * * * must determine the volatile solids if applicable, moisture content monitors % Volatile Solidsx = Percent volatile solids concentration of the similar waste must be calibrated using the procedures determined using Standard Method stream using the procedures in and frequencies specified by the 2540G ‘‘Total, Fixed, and Volatile Solids paragraphs (b)(1) through (b)(3) of this manufacturer. in Solid and Semisolid Samples’’ section. (g) For landfills electing to measure (incorporated by reference; see § 98.7) for Year X [milligrams (mg) volatile solids (2) If you cannot identify a similar the fraction by volume of CH4 in landfill per 100 mg dried solids]. waste stream to the waste stream that gas (F), follow the requirements in % Total Solidsx = Percent total solids was historically managed in the landfill, paragraphs (g)(1) and (g)(2) of this determined using Standard Method you may determine the volatile solids section. 2540G ‘‘Total, Fixed, and Volatile Solids concentration of the historically (1) Use a gas composition monitor in Solid and Semisolid Samples’’ managed waste stream using process capable of measuring the concentration (incorporated by reference; see § 98.7) for knowledge. You must document the of CH4 on a dry basis that is properly Year X (mg dried solids per 100 mg wet basis for volatile solids concentration as operated, calibrated, and maintained waste). determined through process knowledge. according to the requirements specified (c) For each waste stream for which (d) For landfills with gas collection at § 98.344(b). You must either use a gas you choose to determine volatile solids systems, operate, maintain, and composition monitor that is also capable concentration for the purposes of calibrate a gas composition monitor of measuring the O2 concentration paragraph § 98.460(c)(2)(xii), and that capable of measuring the concentration correcting for excess (infiltration) air or was historically managed in the landfill of CH4 according to the requirements you must operate, maintain, and but was not received during the first specified at § 98.344(b). calibrate a second monitor capable of reporting year, you must determine (e) For landfills with gas collection measuring the O2 concentration on a dry volatile solids concentration of the systems, install, operate, maintain, and basis according to the manufacturer’s waste stream as initially placed in the calibrate a gas flow meter capable of specifications. landfill using the methods specified in measuring the volumetric flow rate of (2) Use Equation TT–8 of this section paragraph (c)(1) or (c)(2) of this section, the recovered landfill gas according to to correct the measured CH4 as applicable. the requirements specified at concentration to 0% oxygen. If multiple (1) If you can identify a similar waste § 98.344(c). CH4 concentration measurements are stream to the waste stream that was (f) For landfills with gas collection made during the reporting year, historically managed in the landfill, you systems, all temperature, pressure, and determine F separately for each

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.044 47420 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules

measurement made during the reporting the arithmetic average value of F for use year, and use the results to determine in Equation TT–1 of this part.

Where: an MCF value other than the default of the calibration records for all F = Fraction by volume of CH4 in landfill gas 1 is used, provide a description of the monitoring equipment, including the (fraction, dry basis, corrected to 0% aeration system, including aeration method or manufacturer’s specification oxygen). blower capacity, the fraction of the used for calibration, and all total and CCH4 = Measured CH4 concentration in landfill containing waste affected by the volatile solids concentration landfill gas (volume %, dry basis). aeration, the total number of hours measurement data used for the purposes 20.9c = Defined O2 correction basis, (volume %, dry basis). during the year the aeration blower was of paragraph § 98.460(c)(2)(xii) or used operated, and other factors used as a to determine landfill-specific DOCx 20.9 = O2 concentration in air (volume %, dry basis). basis for the selected MCF value. values. %O2 = Measured O2 concentration in landfill (c) * * * 40. Section 98.468 is amended by gas (volume %, dry basis). (3) * * * adding the definitions for ‘‘Construction (h) The facility shall document the (ii) The year, the waste disposal and demolition (C&D) waste landfill’’ procedures used to ensure the accuracy quantity and production quantity for and ‘‘Design capacity’’ to read as of the estimates of disposal quantities each year used in Equation TT–2 of this follows: subpart to calculate the average waste and, if the industrial waste landfill has § 98.468 Definitions. a gas collection system, gas flow rate, disposal factor (WDF). * * * * * gas composition, temperature, pressure, * * * * * and moisture content measurements. (d) For each year of landfilling Construction and demolition (C&D) These procedures include, but are not starting with the ‘‘Start Year’’ (S) and waste landfill means a solid waste limited to, calibration of weighing each year thereafter up to the current disposal facility subject to the equipment, fuel flow meters, and other reporting year, report the following requirements of subparts A or B of part measurement devices. The estimated information: 257 of this chapter that receives accuracy of measurements made with (1) The calendar year for which the construction and demolition waste and these devices shall also be recorded, and following data elements apply. does not receive hazardous waste (defined in § 261.3 of this chapter) or the technical basis for these estimates (2) The quantity of waste (Wx) shall be provided. disposed of in the landfill (metric tons, industrial solid waste (defined in 38. Section 98.466 is amended by: wet weight) for the specified year for § 258.2 of this chapter) or municipal a. Revising paragraph (b) introductory each waste stream identified in solid waste (defined in § 98.6 of this text. paragraph (b) of this section. part) other than residential lead-based b. Revising paragraph (b)(2). (3) The degradable organic carbon paint waste. A C&D waste landfill c. Adding paragraphs (b)(3) and (b)(4). (DOCx) value (mass fraction) for the typically receives any one or more of the d. Revising paragraph (c)(3)(ii). specified year and an indication as to following types of solid wastes: e. Revising paragraph (d). whether this was the default value from roadwork material, excavated material, f. Revising paragraph (f). Table TT–1 of this subpart or a value demolition waste, construction/ g. Revising paragraph (g)(1). determined through sampling and renovation waste, and site clearance calculation for each waste stream waste. § 98.466 Data reporting requirements. identified in paragraph (b) of this Design capacity means the maximum * * * * * section. amount of solid waste a landfill can (b) Report the following waste * * * * * accept, as indicated in terms of volume characterization and modeling (f) The modeled annual methane or mass in the most recent permit issued by the State, local, or Tribal agency information: generation (GCH4) for the reporting year responsible for regulating the landfill, * * * * * (metric tons CH4) calculated using (2) A description of each waste stream Equation TT–1 of this subpart. plus any in-place waste not accounted (including the types of materials in each (g) * * * for in the most recent permit. If the waste stream) for which Equation TT–1 (1) The annual methane emissions owner or operator chooses to convert of this subpart is used to calculate (i.e., the methane generation (MG), the design capacity from volume to modeled CH4 generation. adjusted for oxidation, calculated using mass to determine its design capacity, (3) The fraction of CH4 in the landfill Equation TT–6 of this subpart), reported the calculation must include a site gas, F, (volume fraction, dry basis, in metric tons CH4. specific density, which must be recalculated annually. corrected to 0% oxygen) for the * * * * * reporting year and an indication as to 39. Section 98.467 is revised to read * * * * * whether this was the default value or a as follows: 41. Table TT–1 of Subpart TT is value determined through measurement amended by revising the entries for data. § 98.467 Records that must be retained. ‘‘Construction and Demolition’’ and (4) The methane correction factor In addition to the information ‘‘Inert Waste [i.e., wastes listed in (MCF) value used in the calculations. If required by § 98.3(g), you must retain § 98.460(c)(2)]’’ to read as follows:

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 EP04AU11.045 Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Proposed Rules 47421

TABLE TT–1 OF SUBPART TT—DEFAULT DOC AND DECAY RATE VALUES FOR INDUSTRIAL WASTE LANDFILLS

DOC K k k [moderate [wet Industry/waste type (weight frac- [dry tion, wet climate a] climate a] climate a] basis) (yr¥1) (yr¥1) (yr¥1)

******* Construction and Demolition ...... 0.08 0.02 0.03 0.04 Inert Waste [i.e., wastes listed in § 98.460(c)(2)] ...... 0 0 0 0

******* a The applicable climate classification is determined based on the annual rainfall plus the recirculated leachate application rate. Recirculated leachate application rate (in inches/year) is the total volume of leachate recirculated from company records or engineering estimates and applied to the landfill divided by the area of the portion of the landfill containing waste [with appropriate unit conversions]. (1) Dry climate = precipitation plus recirculated leachate less than 20 inches/year. (2) Moderate climate = precipitation plus recirculated leachate from 20 to 40 inches/year (inclusive). (3) Wet climate = precipitation plus recirculated leachate greater than 40 inches/year. Alternatively, landfills that use leachate recirculation can elect to use the k value for wet climate rather than calculating the recirculated leach- ate rate.

[FR Doc. 2011–18712 Filed 8–3–11; 8:45 am] BILLING CODE 6560–50–P

VerDate Mar<15>2010 17:51 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00031 Fmt 4701 Sfmt 9990 E:\FR\FM\04AUP2.SGM 04AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 i

Reader Aids Federal Register Vol. 76, No. 150 Thursday, August 4, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING AUGUST

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. 23...... 45724, 45730 Presidential Documents 3 CFR 39...... 45730 Executive orders and proclamations 741–6000 Proclamations: 71...... 46212 The United States Government Manual 741–6000 8696...... 46183 240...... 46668 Administrative Orders: Other Services Notices: 18 CFR Electronic and on-line services (voice) 741–6020 Notice of July 28, Proposed Rules: Privacy Act Compilation 741–6064 2011 ...... 45653 357...... 46668 Public Laws Update Service (numbers, dates, etc.) 741–6043 5 CFR TTY for the deaf-and-hard-of-hearing 741–6086 20 CFR Proposed Rules: 655...... 45667 530...... 45710 ELECTRONIC RESEARCH 531...... 45710 21 CFR World Wide Web 536...... 45710 Proposed Rules: Full text of the daily Federal Register, CFR and other publications 6 CFR 101...... 46671 is located at: www.fdsys.gov. Proposed Rules: 870...... 47085 Federal Register information and research tools, including Public 31...... 46908 Inspection List, indexes, and links to GPO Access are located at: 23 CFR www.ofr.gov. 7 CFR Proposed Rules: E-mail 205...... 46595 655...... 46213 1217...... 46185 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 1730...... 47055 25 CFR an open e-mail service that provides subscribers with a digital form of the Federal Register Table of Contents. The digital form Proposed Rules: Proposed Rules: of the Federal Register Table of Contents includes HTML and 319...... 46209 Ch. III ...... 47089 923...... 46651 PDF links to the full text of each document. 26 CFR 10 CFR To join or leave, go to http://listserv.access.gpo.gov and select 1...... 45673 Online mailing list archives, FEDREGTOC-L, Join or leave the list 429...... 46202 54...... 46621 (or change settings); then follow the instructions. 430...... 46202 Proposed Rules: PENS (Public Law Electronic Notification Service) is an e-mail Proposed Rules: 40...... 46677 service that notifies subscribers of recently enacted laws. 26...... 46651 49...... 46677 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 40...... 47085 54...... 46677 and select Join or leave the list (or change settings); then follow 12 CFR 29 CFR the instructions. Proposed Rules: 2590...... 46621 FEDREGTOC-L and PENS are mailing lists only. We cannot 240...... 46652 respond to specific inquiries. 31 CFR 14 CFR Reference questions. Send questions and comments about the 1010...... 45689 Federal Register system to: fedreg.infonara.gov 39 ...... 45655, 45657, 46597, 47056 33 CFR The Federal Register staff cannot interpret specific documents or 65...... 47058 regulations. 71...... 47060, 47061 117...... 45690 Reminders. Effective January 1, 2009, the Reminders, including 95...... 46202 165...... 45693, 46626 Rules Going Into Effect and Comments Due Next Week, no longer Proposed Rules: Proposed Rules: appear in the Reader Aids section of the Federal Register. This 39...... 45713 165...... 45738 information can be found online at http://www.regulations.gov. 16 CFR 37 CFR CFR Checklist. Effective January 1, 2009, the CFR Checklist no longer appears in the Federal Register. This information can be Ch. II ...... 46598 370...... 45695 found online at http://bookstore.gpo.gov/. Proposed Rules: 382...... 45695 305...... 45715 38 CFR FEDERAL REGISTER PAGES AND DATE, AUGUST 17 CFR 21...... 45697 40...... 45666 45653–46184...... 1 40 CFR 46185–46594...... 2 200...... 46603 229...... 46603 52 ...... 45705, 47062, 47068, 46595–47054...... 3 230...... 46603 47074, 47076 47055–47422...... 4 232...... 46603 Proposed Rules: 239...... 46603 50...... 46084 240...... 46603, 46960 52 ...... 45741, 47090, 47092, 249...... 46603, 46960 47094 Proposed Rules: 98...... 47392 1...... 45724, 45730 721...... 46678

VerDate Mar 15 2010 19:54 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00001 Fmt 4712 Sfmt 4712 E:\FR\FM\04AUCU.LOC 04AUCU sroberts on DSK5SPTVN1PROD with PROPOSALS ii Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Reader Aids

41 CFR 44 CFR 13...... 45908, 46217 1002...... 46628 14...... 45908, 46217 Proposed Rules: Proposed Rules: 15...... 45908, 46217 50 CFR Ch. 301 ...... 46216 67 ...... 46701, 46705, 46715, 46716 401...... 47095 17...... 46632 18...... 47010 42 CFR 45 CFR 47 CFR 80...... 46150 418...... 47302 147...... 46621 Proposed Rules: 679 ...... 45709, 46207, 46208, 9...... 47114 47083 Proposed Rules: 46 CFR Proposed Rules: 430...... 46684 48 CFR Proposed Rules: 17 ...... 46218, 46234, 46238, 433...... 46684 1...... 45908, 46217 1816...... 46206 46251, 46362, 47123, 47133 447...... 46684 10...... 45908, 46217 622...... 46718 457...... 46684 11...... 45908, 46217 49 CFR 648...... 45742 12...... 45908, 46217 595...... 47078 665...... 46719

VerDate Mar 15 2010 19:54 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00002 Fmt 4712 Sfmt 4712 E:\FR\FM\04AUCU.LOC 04AUCU sroberts on DSK5SPTVN1PROD with PROPOSALS Federal Register / Vol. 76, No. 150 / Thursday, August 4, 2011 / Reader Aids iii

The text of laws is not S. 365/P.L. 112–25 subscribe, go to http:// published in the Federal Budget Control Act of 2011 listserv.gsa.gov/archives/ LIST OF PUBLIC LAWS Register but may be ordered (Aug. 2, 2011; 125 Stat. 240) publaws-l.html in ‘‘slip law’’ (individual Last List July 28, 2011 This is a continuing list of pamphlet) form from the public bills from the current Superintendent of Documents, Note: This service is strictly session of Congress which U.S. Government Printing for E-mail notification of new have become Federal laws. It Office, Washington, DC 20402 Public Laws Electronic laws. The text of laws is not may be used in conjunction (phone, 202–512–1808). The Notification Service available through this service. with ‘‘P L U S’’ (Public Laws text will also be made (PENS) PENS cannot respond to Update Service) on 202–741– available on the Internet from specific inquiries sent to this 6043. This list is also GPO’s Federal Digital System address. available online at http:// (FDsys) at http://www.gpo.gov/ PENS is a free electronic mail www.archives.gov/federal- fdsys. Some laws may not yet notification service of newly register/laws. be available. enacted public laws. To

VerDate Mar 15 2010 19:54 Aug 03, 2011 Jkt 223001 PO 00000 Frm 00003 Fmt 4712 Sfmt 4711 E:\FR\FM\04AUCU.LOC 04AUCU sroberts on DSK5SPTVN1PROD with PROPOSALS